Rush v Skilled Engineering Limited - [2002] TASSC 80

[2002] TASSC 80

CITATION: Rush v Skilled Engineering Limited & Ors [2002] TASSC 80

PARTIES:  RUSH, Patrick James
  v
  SKILLED ENGINEERING LIMITED ACN (005 585 811),

SIMON ENGINEERING (AUSTRALIA) PTY LTD
(ACN 000 117 000) trading as SILCAR PAPER and

AUSTRALIAN PAPER PTY LTD (ACN 082 475 438)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  220/2001
DELIVERED ON:  15 October 2002
DELIVERED AT:  HOBART
HEARING DATES:  7 August and 7 October 2002
DECISION OF:  Master S J Holt

CATCHWORDS:

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

Workers Rehabilitation and Compensation Act 1988 (Tas), s135.
Limitation Act 1974 (Tas), s5.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Plaintiff:  R J Phillips
             First defendant:                 A J Hall
             Second defendant:             P G Zeeman
             Third defendant:                A R Mills
Solicitors:
             Plaintiff:  Phillips Taglieri
             First defendant:                 C N Dockray
             Second defendant:             Murdoch Clarke
             Third defendant:                Piggott Wood & Baker
Judgment Number:  [2002] TASSC 80
Number of Paragraphs:                38

Serial No 80/2002
File No 220/2001

PATRICK JAMES RUSH v SKILLED ENGINEERING LIMITED
(ACN 005 585 811), SIMON ENGINEERING LIMITED (ACN 000 117 000)
trading as SILCAR PAPER and AUSTRALIAN PAPER PTY LTD (ACN 082 475 438)

REASONS FOR DECISION MASTER HOLT
15 October 2002

The application

The plaintiff, a fitter and machinist, employed by the first defendant, a labour hire company (Skilled Engineering), claims to have suffered a back injury whilst working for the second defendant, a maintenance contractor (Silcar Paper), at the premises of the third defendant, a paper manufacturer (Australian Paper) on 4 April 1996. By his writ issued 13 March 2001, the plaintiff alleges that his back injury was the result of the negligence and breach of statutory duty of each of the defendants. The plaintiff received workers compensation payments from his employer and so the limitation provisions of the Workers Rehabilitation and Compensation Act 1988 apply to the claim against Skilled Engineering. So far as Silcar Paper and Australian Paper are concerned the Limitation Act 1974 applies. Both Acts prescribe a primary limitation period of three years from the date of the accrual of the cause of action, that is to say, from the date upon which the injury was suffered. Both Acts confer upon the Court a discretion to extend the primary limitation period for a further period of up to three years. The discretion under each Act is the same, namely, a discretion to be exercised in accordance with the justice of the case: Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996. The plaintiff having delivered his statement of claim and now being faced with limitation defences from each of the defendants has applied to have time extended to the date of the issue of the writ.

The plaintiff's claim

The evidence given by the plaintiff as to the facts upon which his action is based is as follows. The plaintiff was…

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.

Continue reading Rush v Skilled Engineering Limited

Details

AGLC: Rush v Skilled Engineering Limited [2002] TASSC 80
Case: [2002] TASSC 80
Decision Date: 15 October 2002

CaseChat Overview and Summary

Rush v Skilled Engineering Limited was a case heard by the Supreme Court of Tasmania. The plaintiff, Patrick James Rush, sought damages for a back injury he sustained during his employment. Rush alleged negligence and breach of statutory duty by the defendants, Skilled Engineering Limited, Simon Engineering (Australia) Pty Ltd trading as SILCAR Paper, and Australian Paper Pty Ltd. The case involved complex issues of limitation periods and discretion to extend time in personal injury claims. Rush's initial claim was dismissed for being time-barred, but he applied for an extension of time to commence proceedings. The court had to determine whether the plaintiff had a viable case, whether the delay in commencing proceedings was satisfactorily explained, and whether the plaintiff was at fault for the delay. The court also had to assess whether the delay had prejudiced the defendants or caused oppression. After considering these factors, the court found that Rush had a viable case against each defendant, that the delay was largely due to Rush's own inaction and that of his solicitors, and that there was no significant prejudice or oppression to the defendants. The court granted the extension of time, allowing Rush to pursue his claim.

Orders