Priest v Australian Vanlines (Vic) Pty Ltd

[2002] TASSC 48

[2002] TASSC 48

CITATION:              Priest v Australian Vanlines (Vic) Pty Ltd  [2002] TASSC 48

PARTIES:  PRIEST, Robert Eric Walter
  v
  AUSTRALIAN VANLINES (VIC) PTY LTD
  ACN 080 739 108

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  828/2000
DELIVERED ON:  16 July 2002
DELIVERED AT:  Hobart
HEARING DATES:  1, 5 and 8 July 2002
JUDGMENT OF:  Master S J Holt

CATCHWORDS:

Limitation of Actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.

Wrongs Act 1954 (Tas), s3(6).
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
           Plaintiff:  No appearance
           Defendant:  G L Johnston
           Proposed third party:                   A R Mills
Solicitors:
           Plaintiff:  Murdoch Clarke                   
           Defendant:  Simmons Wolfhagen  
           Proposed third party:                   Piggott Wood & Baker
Judgment Number:  [2002] TASSC 48
Number of Paragraphs:  11

Serial No 48/2002
File No 828/2000

ROBERT ERIC WALTER PRIEST v
AUSTRALIAN VANLINES (VIC) PTY LTD (ACN 080 739 108)

REASONS FOR JUDGMENT  MASTER HOLT
  16 July 2002

The application

1. On 29 November 2000 the defendant was served with a writ wherein the plaintiff, a furniture removalist's offsider, claims damages for personal injuries, being fractures to his right leg and lumbar spine sustained on 30 August 1999, when some heavy laminated bench tops which he was unpacking from a container fell on him.  The plaintiff claims that his injuries were caused by the negligent way in which the defendant packed the container, in particular, by packing the laminated bench tops vertically and then failing to properly secure them.  The defendant now wishes to serve a third party notice on the plaintiff's employer, Wellington Resources Pty Ltd ("Wellington"), claiming a contribution in respect of the damages which the plaintiff may be awarded on grounds including that Wellington failed to ensure that the bench tops were made secure during the unloading process.

1. Pursuant to the Supreme Court Rules 2000, r202, the defendant could have issued the third party notice as of right prior to the delivery of its defence. The defendant, however, having delivered its defence on about 31 January 2001, now requires leave before the notice can issue. By an application filed 17 May 2002, that leave was sought. By an amended application filed 14 June 2002, and served on Wellington, the defendant additionally seeks an order extending the time for the commencement of the third party proceedings pursuant to the Wrongs Act 1954 ("the Act"). Under the Act, s3(1)(c), a contribution can be recovered from any person "who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage …". Section 3(5) imposes a time limit for commencement of the proceedings of twelve months following the service of the plaintiff's writ. Section 3(6) confers a discretion to grant an extension of this time in cases where the person from whom the indemnity or contribution is sought "will not be prejudiced in his defence by reason of the extension".

1. Here the plaintiff does not oppose the grant of leave under the Rules to issue the notice. No purpose would be served, however, unless the defendant is able to also secure an extension of time under the Act. In exercising the discretion under the Act, the Court is entitled to take into account every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising the extension of the limitation period Klein v Domas Pty Ltd (1963) 109 CLR 467 at 473 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554. Of course, before the discretion is enlivened there must be satisfaction that no prejudice in the defence of the claim will be caused. In the context of limitation statutes, the real question in considering prejudice at trial is whether the delay has made the chances of a fair trial unlikely, and the respondent to the application carries this evidentiary onus: Taylor (supra) at 550 and 547. Once the discretion is enlivened, the applicant needs to show his claim has a possibility of success: Crockett & Anor v Roberts & Ors 29/1992.  It would be futile to grant an extension of time to an applicant who has not at least demonstrated in an appropriately preliminary way that he has a viable case.  Where a viable case has not been demonstrated, permitting the action would be to condone the harassment of a person otherwise protected by a time bar and would not be just.  Williams v The Minister Aboriginal Land Rights Act1983 & Anor (1994) 35 NSWLR 497 at 508. The applicant must also give the reason for the delay because this will invariably be a factor to be taken into account in considering whether the discretion will be favourably invoked: Hall v Nominal Defendant (1966) 117 CLR 423 at 435.

Arguable case

1. As previously indicated, the plaintiff was a removalist's offsider employed by Wellington.  The person he was assisting, also an employee of Wellington, was a furniture removalist with four years' experience.  The pair collected the container from the Hobart wharf.  The first stop was at the city premises of a furniture retailer where three mattresses were unloaded.  The container was then taken to other premises in the city where the balance contents were to be unloaded. The plaintiff and his co-worker firstly removed six to eight stoves.  They were then faced with a wall of bench tops standing vertically across the width of the container.  The bench tops in their standing position almost touched the roof of the container.  The plaintiff passed one of the bench tops to his co-worker and then almost immediately noticed that the balance of the bench tops were insecure.  He put his hands against some of them, hoping to prevent them from falling towards him, but decided that he could not restrain the load.  He yelled for assistance and almost simultaneously let go, turned and ran.  In the meantime, the co-worker who had turned with his bench top and headed to the door of the container, jumped to safety.  The plaintiff, however, failed to escape the falling bench tops and was knocked over, suffering the injuries.  The container was about six metres long.  It was high enough for a person to stand inside it.  The position of the bench tops would, on the face of it, have become apparent as the stoves which were in front of them were being removed.  It can be inferred from the job descriptions of the co-worker as the removalist and the plaintiff as an offsider, contained in a Workplace Standards Authority Accident Investigation Report, that the plaintiff's co-worker was the person in charge of the unpacking operation. It is, in my view, arguable that the person in charge should have secured, or caused the plaintiff to secure, the bench tops by the time the last stove was removed.  The Workplace Standards Authority Accident Investigation Report appears to be thorough and contains no reference to any attempt being made to check the safety of the load or to secure it prior to the accident.  Until the load was secured, it was arguable that the plaintiff should not have been left alone in the part of the container where the bench tops were standing.

1. I am satisfied that the plaintiff has a viable claim; that his employer owed a duty to take reasonable steps to provide him with a safe place and system of work;  that the duty was breached when the plaintiff's co-worker failed to ensure that the bench tops were secured and left the plaintiff alone with them;  and that foreseeable injury resulted.

Delay

1. The delay in commencing the third party proceedings was justified until shortly prior to the expiry of the limitation period.  Negotiations were occurring between the defendant and Wellington.  It was an agreed fact that Wellington itself had issued a writ against the defendant on 2 May 2001 claiming an indemnity in respect of its liability to make workers compensation payments to the plaintiff.  A defence to that claim was delivered on about 29 May 2001 in which the defendant alleged contributory negligence on the part of Wellington.  Shortly after that on 13 June 2001, the defendant's solicitors wrote to Wellington's solicitors noting the damages claim brought by the plaintiff; expressing the view that the incident was attributable to the negligent unloading of the container;  asserting that Wellington was liable, and advising that third party proceedings were in contemplation.  The letter invited settlement discussions.  On 2 July 2001, Wellington's solicitors advised that they were willing to enter into discussions and said that they looked forward to receiving a settlement proposal from the defendant.  Subsequent correspondence shows that Wellington's solicitors wished to negotiate on the basis that Wellington would not be joined as a third party and that discussions would occur when the quantum of the plaintiff's claim was known.  By the end of November 2001 the plaintiff had not delivered particulars of his claim and the limitation period had passed by.  Correspondence continued however.  On 25 February 2002, Wellington's solicitors confirmed that upon receipt of the particulars of the plaintiff's claim, they would "advise our client's position in relation to the contribution by our client, if any …" .  They said also that they had no objection to attending a settlement conference with the plaintiff following agreement as to the amount, if any, of their contribution. 

1. The defendant changed solicitors in March 2002 and instructions for the issue of an application to join Wellington as a third party were given in May 2002.  The new solicitors presumably formed the view that as negotiations could not proceed until the plaintiff's particulars were delivered, and as those particulars had still not been delivered, that the prudent course was to commence the third party proceedings. 

1. As I have said, delay up until shortly prior to the expiry of the limitation period  has been justified.  There was a mutual willingness to discuss settlement without the institution of third party proceedings, subject to the plaintiff delivering his particulars.  It was a sensible way of dealing with the dispute.  However, the limitation period was allowed to pass by without the defendant having inquired of Wellington as to whether a limitation point would be taken if the matter was held in abeyance until delivery of the plaintiff's particulars.  There is no assertion from the defendant or its legal advisers that they were unaware of the limitation period.  To simply let the matter drift on without such an assurance was imprudent.  Some blame for the delay between November 2001 and the application of May 2002 is attributable to the defendant.

Prejudice

1. I am satisfied that Wellington will not be prejudiced in its defence of the claim by reason of the grant of an extension of time.  Wellington does not claim that any specific prejudice will be suffered.  A director of Wellington, Mr Byron Stott, went to the scene shortly after the accident and inspected the remaining contents of the container and took several photographs before assisting with the completion of the unloading.  The following day he sent by facsimile transmission to Workplace Standards Tasmania a completed form entitled "Notification of Serious Accident or Dangerous Incident".  Workplace Standards Tasmania promptly commenced an investigation which included taking a written statement from the plaintiff on 10 September 1999, and a written statement from the plaintiff's co-worker on 9 September 1999.  The list of documents filed by Wellington in the action it commenced against the defendant for recovery of workers compensation payments contains as item 5 of Part 11 of the First Schedule the entry "Freemans Investigations Reports dated 14/12/1999 and 28/1/2000".  Wellington commenced its proceedings against the defendant on 2 May 2001 and on about 29 May 2001 received a defence alleging negligence on the part of Wellington.  The correspondence between Wellington's solicitors and the defendant's solicitors commencing June 2001 made it clear that Wellington understood that a contribution in respect of the plaintiff's damages was being sought.  The prompt involvement in the investigation of the matter by Wellington;  the relatively prompt notification to Wellington of the contribution claim;  the fact that written witness statements were taken within two weeks of the incident and the fact that it is still less than three years since the incident, persuade me that no material general prejudice of the type referred to by McHugh J in Taylor (supra) at 551 will be suffered if the extension is granted.

Conclusion

1. Having found that there is no material general prejudice and Wellington having claimed no specific prejudice, the exercise of the discretion has been enlivened.  The question then is whether the defendant has discharged its burden of showing that the justice of the case favours the grant of the extension sought.    Factors which favour the defendant are that there is a viable claim;  there is no prejudice and the defendant is without blame for the delay up until shortly prior to the expiry of the limitation period.  In addition, I do not think that granting the extension, in the circumstances of this case, is offensive to the broad rationales for the enactment of limitation periods as set out by McHugh J in Taylor (supra) at 552 - 553. Because of the prompt investigation and the continuing anticipation of the claim for a contribution, no oppression will be caused to Wellington by the grant of the extension. Wellington has had no reason to arrange its affairs and resources on the basis that a claim would not be made against it. The public interest requiring that disputes be settled as quickly as possible is not undermined. Wellington made it clear all along that this dispute could not be settled until after particulars relating to the quantum of the plaintiff's claim have been delivered and the evidence is that they had not been delivered by May 2002. Against all of this, I am left with some blame for delay attributable to the defendant for the period November 2001 to May 2002. This factor, however, is not necessarily disentitling: Knight v Smith [1975] Tas SR 83. After balancing the competing features, I am satisfied that the justice of the case lies with the grant of the extension sought.

Orders 

1. There will be an order that the defendant have leave to file and serve on Wellington a third party notice in accordance with the annexure to the application filed 14 June 2002 within fourteen days. In addition, there will be an order that the time limited by the Act for the bringing of the third party proceedings is extended to a date fourteen days from the date of these orders.