T W Speight v Renison Ltd

[1987] TASSC 129

B59/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            T W Speight v Renison Ltd [1987] TASSC 129; B59/1987

PARTIES:  SPEIGHT, T W
  v
  RENISON LTD

FILE NO/S:  109/1986
DELIVERED ON:  23 December 1987
JUDGMENT OF:  Green CJ

Judgment Number:  B59/1987
Number of paragraphs:  6

Serial No B59/1987
List "B"
File No 109/1987

T W SPEIGHT v RENISON LTD

REASONS FOR JUDGMENT  GREEN CJ

23 December 1987

1. These are applications to extend time and to renew a writ made pursuant to O79, r7 and O8, r1(1) of the Rules of the Supreme Court. The following is a chronology of relevant events.

17/5/85The applicant was injured in the course of his employment with the respondent. On the same day the applicant gave written notice of injury to the respondent and on the same day or shortly thereafter the applicant gave to the respondent another written notice in which he expressed the view that the respondent was responsible for the injury and in which he gave reasons for holding that view.

23/1/86The applicant first saw a solicitor in connection with the accident. He was informed of his workers' compensation entitlement, that he had the right to claim damages at common law and that proceedings for damages had to be commenced within 12 months of the accident occurring.

21/4/86The applicant instructed his Solicitors to issue a writ against the respondent. His solicitor understood that the applicant's instructions were that the writ was not to be served. In cross– examination the applicant was uncertain about exactly what instructions he had given as to service, but I find that he was aware and accepted that the effect of his instructions was that the writ was not going to be served immediately.

9/5/86The writ was filed.

On or about 12/58/6 The applicant's solicitor wrote to the applicant in the following terms:

"In accordance with your instructions of 21st April, 1986 I have issued a Writ. I am not convinced that you have in fact a claim for damages but the effect of issuing the Writ will be to preserve your right to make such a claim from twelve months from the date the Writ was issued. The Writ will not be valid after the expiration of twelve months from the date it was issued. It is important that you contact me, if you wish me to proceed with the claim for damages within the next six months so that I can obtain some further instructions and some evidence from you and it is vital that you ensure that I be instructed before May 1987 that you want the Writ served. If the Writ is not served then your right to claim damages will cease."

17/5/86The period limited for commencing proceedings to recover damages expired subject to the possibility of the period being extended.

16/4/87The applicant saw his solicitor and instructed him to serve the writ. The applicant's solicitor said that he would serve the writ after the applicant sent him the accident report form which the applicant had given to the respondent.

22/4/87The applicant's solicitor wrote to the applicant and informed him inter alia that he had not served the writ because the applicant was to let him have a copy of the notice of accident form. Shortly afterwards the applicant gave the notice of accident form to his solicitor.

Early in May 1987 The applicant gave his solicitor further details about the accident and the names of witnesses and his solicitor said he would serve the writ.

Early inThe applicant gave his solicitor further details about the accident and the names of witnesses and his solicitor said he would serve the writ.

8/5/87The solicitor for the applicant asked a solicitor employed by his firm to serve the writ when he went to the West Coast during the week commencing 11th May 1987.

11/5/87The writ was served on the respondent.

17/5/87The period limited for commencing proceedings for damages finally expired.

1. I conclude from answers given by the applicant in cross–examination that the applicant understood that the period of 12 months within which the writ had to be served virtually had the effect of adding another 12 months to the statutory period of limitation, that when the writ was issued the applicant had not definitely resolved to proceed with his claim for damages and that he issued the writ in order, in his words, "to protect" himself and that at least one of the reasons he delayed the prosecution of his claim was that he was uncertain about the extent of any residual disability he might have as a result of the injury.

1. I repeat the conclusions I expressed in Rossiter v Bishop 42/1985 about the principles which are relevant to applications of this kind.

1. In exercising my discretion I am especially influenced by the following considerations:

1I recognise that granting this application will deprive the respondent of the benefit of the limitation period. That is an important but not a decisive consideration.

2Although it is certainly capable of being a consideration which militates against the granting of an application, I am not satisfied that the applicant's deliberate postponement of service of the writ amounted to an abuse of the Court's process in the sense in which Gray J concluded that it was in Quinn v Anderson, an unreported judgment of the Supreme Court of Victoria, cited by the respondent. In that case the proceeding which was delayed was an application to extend time, which was a proceeding of a very different kind from the service of a writ within a period allowed by the rules. Further, I am not satisfied that the applicant delayed serving the writ in order to gain some advantage over the respondent, or that he thought that there was any impropriety in doing so.

3Had the applicant's instructions been acted upon the writ would have been served within time.

4The failure to serve the writ within time was the result of a failure by the solicitor for the applicant to direct his mind to the fact that the anniversary of the issue of the writ was imminent.

5I am satisfied that the applicant has an arguable case that his injury was caused by the respondent's negligence in failing to provide a system of work which would ensure that loose hoses were positioned so as to ensure that employees did not trip over them or get caught up in them.

6The respondent had early notice of the circumstances of the accident and that the applicant claimed that the respondent was negligent.

7I am not satisfied that the respondent will suffer any specific prejudice in relation to its defence of the applicant's claim if these applications are granted.

1. I am satisfied that in the exercise of my discretion this would be a proper case in which to extend the time for making this application and that good reason exists for ordering that the writ be renewed.

1. I order that the writ be renewed.