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Welsh v Adecco & Ors

Welsh v Adecco & Ors

Case [2017] VSC 44 14 February 2017

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2015 03755

DONNA RAE WELSH	Plaintiff
v
ADECCO INDUSTRIAL PTY LTD (ACN 004 366 634)	First Defendant
and
READY WORKFORCE (A DIVISION OF CHANDLER MCLEOD) PTY LTD (ACN 088 288 037)	Second Defendant
and
SUNICRUST BAKERIES PTY LTD (ACN 004 402 582)	Third Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13 December 2016
DATE OF JUDGMENT:	14 February 2017
CASE MAY BE CITED AS:	Welsh v Adecco & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 44

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LIMITATION OF ACTIONS – Negligence – Personal injury in course of employment – Limitation of Actions Act 1958 (Vic) s 23A – Whether limitation period should be extended – Plaintiff seriously injured – Prejudice resulting from delay – Documents not retained – Memory of witnesses impaired by effluxion of time – Workplace and equipment no longer available as evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Harrison QC with Mr N. Griffin	Todd Legal
For the First and Second Defendants	Mr P. Jens QC with Ms B. Myers	Thomson Geer for the first defendant; IDP Lawyers for the second defendant
For the Third Defendant	Mr D. Wallis	Wotton Kearney

HIS HONOUR:

Introduction

The plaintiff, Donna Welsh, commenced employment with the first defendant, Adecco Industrial Pty Ltd (‘Adecco’), on 17 February 2003. Adecco was a labour hire company. The plaintiff was immediately placed with the third defendant, Sunicrust Bakeries Pty Ltd (‘Sunicrust’), to perform baking duties. She remained working at the Sunicrust bakery at 60 Chapel Street, Wodonga, at all material times. In December 2004, the plaintiff’s employer changed from Adecco to the second defendant, Ready Workforce (‘Ready’), also a labour hire company. She remained employed by Ready and working at Sunicrust performing the same duties for about six months. In July 2005, the plaintiff was employed by Goodman Fielder (GF) Pty Ltd, who had assumed ownership of the Sunicrust brand. The plaintiff’s duties remained unchanged.

The claim

In her statement of claim filed on 21 July 2015, the plaintiff alleged that throughout the course of her employment with the first defendant (17 February 2003 to December 2004) and the second defendant (December 2004 to 30 July 2005) she was required to perform heavy and repetitive duties. Specifically, the plaintiff relies upon an injury alleged to have been sustained by her in January 2004 when she lifted a heavy dolly and suffered lower back pain. It is this incident that is at the centre of the plaintiff’s claim against the defendants for damages said to arise from their negligence. It follows that the heavy duties are said to have occurred from February 2003 until July 2005 and the specific injury is said to have occurred in January 2004.[1]
[1]The plaintiff’s amended submissions assert that the ‘course of employment’ injury was sustained between 17 February 2003 and 1 August 2006. This…

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 Welsh v Adecco & Ors

Details

AGLC: Welsh v Adecco & Ors [2017] VSC 44
Case: [2017] VSC 44
Decision Date: 14 February 2017

CaseChat Overview and Summary

The matter of Welsh v Adecco & Ors involved the plaintiff, Mr. Welsh, who claimed damages for personal injury sustained during the course of his employment. The defendants included Adecco, along with other related parties. The dispute was heard by the County Court of Victoria. The plaintiff sought to extend the limitation period under section 23A of the Limitation of Actions Act 1958 (Vic) to allow his claim for negligence to proceed. He argued that various factors, including the serious nature of his injuries, the impairment of witnesses' memories, and the unavailability of the workplace and equipment as evidence, justified the extension.

The primary legal issues the court needed to address were whether the plaintiff's circumstances warranted an extension of the limitation period, and if the potential prejudice from the delay outweighed the public policy considerations favouring finality in legal disputes. The plaintiff contended that the delay in filing his claim was due to his injuries, which prevented him from pursuing legal action promptly. Additionally, he argued that the witnesses' memories had faded and the physical evidence had been lost or altered over time, thereby exacerbating the prejudice.

The court examined the statutory provisions and relevant case law to determine whether the plaintiff's situation met the criteria for an extension under section 23A. While acknowledging the serious nature of the injuries and the difficulties in obtaining evidence, the court found that the plaintiff had not demonstrated sufficient grounds for an extension. The court noted that the plaintiff had not provided any documents or evidence to substantiate his claims of prejudice, nor had he shown that the delay was due to circumstances beyond his control. The court concluded that the prejudice resulting from the delay was not substantial enough to warrant an extension of the limitation period, and thus denied the plaintiff's application.

As a result, the court dismissed the plaintiff's application for an extension of the limitation period, and the defendants' motion for summary dismissal was upheld. The plaintiff's claim was therefore barred by the limitation period, and no further legal action could be pursued in relation to the incident.

Orders