Stuart v DDK Commercial Interiors Pty Limited

[2005] NSWSC 148

CITATION:	Stuart v DDK Commercial Interiors Pty Limited & Ors [2005] NSWSC 148
HEARING DATE(S):	3 March 2005
JUDGMENT DATE :	11 March 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The notice of motion is dismissed; the plaintiff is to pay the costs of Fineseat Manufacturers Pty Limited and Ausware Products Pty Limited; the exhibits may be returned.

CATCHWORDS:	Extension of limitation period - threshold requirements - viable cause of action - delay and explanation for delay - prejudice - manifestly hopeless application.
LEGISLATION CITED:	Limitation Act 1969, ss60G, 60I
PARTIES:	John Glenn Stuart (Plaintiff) DDK Commercial Interiors Pty Limited (Discontinued) (First Defendant) Charles Timms Pty Limited (Second Defendant) Norton Tower Pty Limited (Third Defendant) Fineseat Manufacturers Pty Limited Ausware Products Pty Limited
FILE NUMBER(S):	SC 20518/01
COUNSEL:	Mr A McQuillen (Plaintiff) Mr S Gardiner (Second Defendant) Mr S Marsh (Fineseat Manufacturers Pty Limited) Mr P Arden SC & Mr N Robson (Solicitor) (Ausware Products Pty Limited)
SOLICITORS:	G H Healey & Co - Sydney (Plaintiff) Sparke Helmore (Second Defendant) Turks Legal (Third Defendant) Vardanega Roberts (Fineseat Manufacturers Pty Limited) Johnstone Robinson (Ausware Products Pty Limited)

LOWER COURT JURISDICTION:

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

11 March 2005

20518 of 2001 John Glenn Stuart v DDK Commercial Interiors Pty Limited & Ors

JUDGMENT

1 Master: The plaintiff claims to have suffered injury on 24 August 1998. He was then employed by the third defendant. The injury was said to have occurred at his place of employment when the seat of an office chair collapsed, causing him to fall to the floor.

2 The plaintiff says that a few minutes after the accident, he examined the chair.

3 He commenced proceedings in this court by filing a statement of claim on 4 June 2001. The proceedings were brought against three defendants. The first defendant was thought to be the manufacturer of the chair. The second defendant was thought to be the supplier of the chair to his employer. His employer was named as the third defendant.

4 There is evidence that the first defendant was made a party relying on information provided in or about May 2001 by the second defendant. Subject to the filing of the statement of claim (in or about August 2001) this information was said by the informant to be the product of mistake. Ultimately, the plaintiff discontinued the proceedings against the first defendant on 28 August 2002 (consent to do so had been reached as early as February 2002).

5 There is no evidence of earlier enquiry having been made as to the identity of the manufacturer prior to May 2001.

6 At different times, after the filing of the statement of claim, the plaintiff came to the view that he wished to add two further defendants to the proceedings. The proposed parties are Fineseat Manufacturers Pty Limited (Fineseat) as fourth defendant and Ausware Products Pty Limited (Ausware) as fifth defendant.

7 It appears that the second defendant was the source of the information provided to the plaintiff that Fineseat was the manufacturer of the chair. It appears that this information was provided on or about 7 December 2001. Fineseat did not became aware of the plaintiff’s injury and of his intention to join it as a party until on or about 26 April 2002. A notice of motion to have it joined as a party was filed on 10 July 2002. The plaintiff became aware that Ausware may have been involved in the manufacture of the chair on or about 5 March 2003. In or about May 2003 first contact was made with Ausware and advice was given as to intention to join it as a party. On 26 May 2003, an amended notice of motion was filed. It sought to have both Fineseat and Ausware joined as defendants. It also sought an extension of the relevant limitation period.

8 The application has been before the court on numerous occasions. It was not until 3 February 2005 that the plaintiff sought a hearing date for the notice of motion. It was then fixed for hearing on 3 March 2005. The hearing took place on that day. Both Fineseat and Ausware opposed the relief sought in the notice of motion.

9 The first matter to be addressed is the application to extend the relevant limitation period. The application is made pursuant to s60G of the Limitation Act 1969 (the Act). Under that section, the court may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

10 A court may not make an order under s60G unless it is satisfied of the matters listed in s60I.

11 For present purposes, the relevant provisions of s60I are:-

(1)(a) the plaintiff:
… … …
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)–(iii).

12 The plaintiff has relied on a number of affidavits. He himself has sworn a short affidavit (there are eight paragraphs). There are affidavits sworn by persons who have been involved in the conduct of the matter when it was in the hands of his former solicitors (G H Healey & Co – Sutherland). The deponents are Messrs Somerfield, Jurd and Costa.

13 There was no cross-examination of deponents.

14 The plaintiff also tendered some documentation (including an affidavit sworn by Brian Fainsinger on 2 July 2003 (Exhibit C), a bundle of documents produced by Fineseat (Exhibit D) and a report provided by Richard Spencer dated 18 December 2004 (Exhibit E)).

15 Mr Spencer is a safety expert retained by the plaintiff. Mr Fainsinger is the Chief Executive Officer of Fineseat.

16 The limitation period expired in August 2001. The claims sought to be brought against Fineseat and Ausware are now well out of time. What is sought is an extension of time in respect of the causes of action alleged in a proposed amended statement of claim which is annexure C to the affidavit sworn by Mr Somerfield on 30 June 2003.

17 I now refer to the case that is alleged against Fineseat in the proposed amended statement of claim. It is said that it was the manufacturer of office chairs (in particular those known as “Enrico 40” clerical chairs). The particulars of negligence of Fineseat are said to be as follows:-

1. Failure to properly manufacture chairs which were supplied to the Second Defendant.
2. Failure to inspect or properly inspect chairs manufactured by it, or components supplied by the Fifth Defendant and used in such manufacture, for any defects.
3. Failure to supply properly manufactured chairs to the Second Defendant.

18 I now refer to the case that is alleged against Ausware in the proposed amended statement of claim. It is said that it was the importer of parts and components of Enrico 40 clerical chairs, which it supplied to Fineseat. The particulars of negligence of Ausware are said to be:-

1. Failure to supply to the Fourth Defendant components used in the manufacture of “Enrico 40” chairs which were free of defects.
2. Failure to inspect of properly inspect imported components used in the manufacture of such chairs by the Fourth Defendant, to detect any such defects.

As can be seen from this material, the allegations are exceedingly general in nature. No further particulars of them have been provided.

19 Generally speaking, the evidence offered in support of this application could be described as parsimonious. It has been said in submissions that the content of the affidavits gives rise to the impression that there was an intention to conceal rather than explain. In my view, there is considerable force in that submission. I shall return to the matter of such content in due course.

20 Broadly speaking, it can be said that Fineseat and Ausware oppose the application on four grounds. They contend that the plaintiff has not satisfied the threshold requirements of s60I. They contend that the plaintiff has failed to produce evidence of a viable cause of action. They say that there has been a gross delay which has not been adequately explained. They say that the delay has given rise to prejudice, which makes a fair trial now impossible.

21 The evidence offered as satisfying the threshold requirements as set forth in s60I(1)(a)(iii) is to be found in paragraph 8 of the affidavit sworn by the plaintiff. It is as follows:-

My solicitors have also advised me as to the provisions of Sections 60G, 60H and 60I of the Limitation Act, 1969. I confirm that until about mid-2002 I was not aware of the connection between my injuries and Fineseat Manufacturers Pty Limited.

I should mention that this material contains no relevance to Ausware.

22 I put aside the question as to whether or not that material satisfies (iii). Whether or not it does so, it seems to me that the plaintiff has failed to satisfy (b). Whatever may have been the plaintiff’s personal knowledge, it seems to me that he ought to have become aware of all three matters listed in paragraph (a) prior to the specified three year period.

23 He had solicitors acting for him shortly after the incident. The Court is not told what they did during most of the first three years of their retainer. The affidavits (save for what appears in correspondence) do not disclose the knowledge had by his legal advisors. Why the plaintiff did not early become aware of the relevant matters is left unexplained. The knowledge that had to be acquired could be thought to have become readily available upon simple and prompt enquiry being made. Accordingly, I do not consider that he has satisfied the threshold requirements.

24 In these circumstances, the Court does not have the power to make an order under s60G. Be that as it may, I shall proceed on the assumption that it did have such power and briefly consider the other matters that were argued.

25 The parsimonious evidence offered by the plaintiff reveals that his employer acquired the chair from the second defendant, that Fineseat manufactured Enrico 40 chairs and supplied chairs to the second defendant and that Ausware imported components which were supplied to Fineseat.

26 There is copy documentation (including orders, invoices and delivery dockets). It shows inter alia that mechanisms and brackets were supplied by Ausware to Fineseat.

27 There is a copy file note obtained from the second defendant (presumably made on 3 September 1998) prepared in respect of David Rabbidge. That refers to a weakness in the base of the chair due to the welding. The copy may have been obtained by the plaintiff prior to 10 February 2003.

28 The affidavit sworn by Mr Fainsinger contains the following:-

22. I note that there was a recall of approximately 700-800 chairs in or around the time of the Plaintiff’s injury as a result of a problem that was found with a weld.
… … …
31. In respect of paragraph 5 Fineseat Manufacturers Pty Limited states that the recall that took place in the period from 1996 to 1997 involved Fineseat Manufacturers Pty Limited contacting retailers of the chairs and indeed end customers of the chairs and arranging for those chairs to be returned by telephone.
32. Most of the recall was undertaken by telephone conversations between retailers and end users, handwritten tags were recorded on the particular chairs when they were received and returned.
33. It is my best recollection that approximately 700 chairs were recalled. All the chairs that were recalled did not need to be repaired, however the mechanisms were replaced nonetheless. This took place over a year between the period of 1997 to 1998.

29 The plaintiff’s affidavit describes the accident as follows:-

On 24 August 1998 I suffered injuries when the seat of an office chair at my (then) place of employment collapsed, causing me to fall to the floor.
A few minutes later I examined the chair and saw that the seat part was broken and appeared to be defective.

Largely, the material relied on by him does not disclose the nature and extent of his injuries.

30 Mr Spencer’s report does not deal with the chair that was said to cause the injury. It is given in relation to a chair of similar age and model. He had the following history from the plaintiff:-

Following a short conversation with his workmates, the Plaintiff instructs he stepped backwards to regain the seated position in the Enrico 40 chair and feeling the chair seat on the backs of his legs dropped into the chair.
Suddenly and without warning the Plaintiff, with the chair under his posterior, felt the chair descend and I am instructed he struck his coccyx as the chair slid under his body weight. I am instructed that he landed on the base of the chair which is spread out and in which wheels are located and standing some 60mm from the floor. The Plaintiff instructed that he immediately experienced severe pain in the area of his coccyx, and rolled onto his left side in pain.
The Plaintiff stated, he lay on the floor for a period of seconds and rose slowly holding on to the desk as he got up and was in severe pain. The Plaintiff noticed the chair he had been sitting on, and the backrest was hanging downward in front of the gas lift post, and was in an abnormal position.
The Plaintiff stated, he examined the chair and after a short period attempted to replace the seat and its backrest, but it fell forward in the abnormal position each time he attempted to replace it. The Plaintiff instructed that he concluded that there had been a structural or mechanical failure.

31 Mr Spencer concluded that there were three potential areas where the chair could have failed. They were the metallic welded base, the timber seat support and the fixtures securing the plywood seat to the metallic welded base. He agreed with the view that the welded metallic section did not fail. He concluded that it was unlikely that the plywood base failed. He made the following observations:-

The third area where the material chair could have failed is at its fixings. These fixings attach the metallic base to the chair plywood seat by screwing into the plywood.
If the chair had been incorrectly assembled by either the supplier or the Defendant (this evidence is unknown) then it is likely the chair could have collapsed in the manner described by the Plaintiff.
With the rear fixtures not fitted and the front loose it is conceivable in my view that the chair could have deflected downwards as described by the Plaintiff.
Therefore I tend to support the last possible cause of failure that of the rear fixtures not being correctly applied to the base of the chair as the most likely cause of the chair failing.

32 In my view, this material falls well short of disclosing that there is evidence of a viable case as alleged against either Fineseat or Ausware. The plaintiff has now had in excess of six years to articulate his claim with precision and to amass the evidence to support it. That which is offered after all this time fails to disclose the existence of an arguable case as against the two proposed defendants (or either of them).

33 The delay is long and the explanation offered is grossly inadequate.

34 The affidavit material fails to disclose when the plaintiff first instructed his former solicitors. An enquiry from the bench elicited from counsel for the plaintiff that those solicitors were instructed on 31 August 1998 (about one week after the incident). The proceedings were not commenced until shortly before the limitation period expired. The affidavits are silent as to the conduct of the case prior to May 2001. What is offered as to what happened thereafter is largely annexed documentation.

35 It appears that Mr Costa had conduct of the matter until about 14 June 2002 (what he deposes to commences with what his secretary did on or around May 2001) Largely, it deals with communications had with others. Mr Somerfield had the conduct of the matter from about 10 July 2002. His affidavit is brief and primarily annexes three documents (including the proposed amended statement of claim). Mr Jurd had the conduct of the matter from about 8 April 2003. His affidavit annexes documentation.

36 It appears that the matter of the identity of the manufacturer was spasmodically visited after May 2001. In December 2001, following earlier enquiry of the solicitors for the second defendant, the plaintiff’s solicitors came upon the information that Fineseat supplied the chair to the second defendant. The question came to be pursued with the insurers of Fineseat by about September 2002 (this seems to be a consequence of earlier contact made with Fineseat on or about 26 April 2002).

37 In February 2003, the plaintiff seems to have been pursuing a claim under the Trade Practices Act and this produced information from the solicitors for the second defendant to the effect that the chair was manufactured either by Fineseat or Ausware. The discovery of this information ultimately led to the filing of the amended notice of motion on 28 May 2003.

38 It appears that it was not until about August 2002, that the solicitors for the plaintiff took steps to arrange for inspection of the chair. This ultimately elicited information from the solicitors for the third defendant. In a letter dated 26 November 2002 (annexure F to the affidavit of Mr Jurd), they advised inter alia as follows:-

Our client no longer has possession of the chair and believes that it may have been dumped along with other furniture months/years ago. It is not possible to be more specific in the circumstances as the offices of our client have been refurnished twice in that time.

39 I have already mentioned other problems that render this application manifestly hopeless. The delay and the gross deficiencies in the explanation for delay of themselves would suffice to defeat this application. The question of prejudice lands a further fatal blow.

40 It may be that the third defendant (and/or other defendants) might have been expected to take steps to preserve the chair. Be that as it may, it could be thought that it was in the interests of the plaintiff to ensure that it was secure and preserved for the purposes of the litigation. This should have been regarded as an urgent priority.

41 Even though his solicitors had been acting since August 1998, it appears that nothing was done about locating and inspecting the chair until late 2002 (more than four years after the incident).

42 The evidence does not reveal when the chair was lost to the parties. Both Fineseat and Ausware contend that its loss causes irremediable actual prejudice.

43 Not only are Fineseat and Ausware confronted with deficiencies in the identification of what are said to be problems with the chair and the nature of the case alleged against them, the chair itself cannot now be examined by them.

44 In my view, there is real actual prejudice which makes a fair trial no longer possible.

45 In the circumstances of this case, I am not able to decide that it would be just and reasonable to make an order.

46 Accordingly, for the many reasons mentioned, I am of the view that the application must fail.

47 The notice of motion is dismissed. The plaintiff is to pay the costs of Fineseat Manufacturers Pty Limited and Ausware Products Pty Limited. The exhibits may be returned.

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