Williams v Omeo District Health and Ors (Ruling)
[2015] VCC 652
•22 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-11-03093
| GEOFFREY WILLIAMS | Plaintiff |
| v | |
| OMEO DISTRICT HEALTH | First Defendant |
| and | |
| ORIGIN ENERGY LIMITED | Second Defendant |
| and | |
| DON WRIGHT ENGINEERING | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 15 May 2015 | |
DATE OF RULING: | 22 May 2015 | |
CASE MAY BE CITED AS: | Williams v Omeo District Health & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 652 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to Limitation of Actions Act 1958 – conduct of proceeding by solicitor for plaintiff – length and reasons for delay in issuing proceedings – general and specific prejudice to second and third defendants – whether “just and reasonable” to grant extension
Legislation Cited: Limitation of Actions Act 1958; Accident Compensation Act 1985; Occupational Health and Safety Act 2004; Civil Procedure Act 2010
Cases Cited:Taylor v Western General Hospital [1986] VR 250; Bell v SPC Limited [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Todorovski v Petersville Industries Ltd & Ors [1999] VSC 213; Yu v Speirs [2001] NSWCA 373
Ruling: Leave granted to the plaintiff that the period within which the Writ may be issued is extended.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M A Belmar Salas | Maurice Blackburn Pty Ltd |
| For the First Defendant | Ms M Britbart | Hall & Wilcox |
| For the Second Defendant | Mr J C Simpson | Wotton + Kearney |
| For the Third Defendant | Ms R L Kaye | Sparke Helmore |
HIS HONOUR:
Preliminary
1 This is an application by the plaintiff, Geoffrey Williams, by Summons dated 18 March 2015, for an extension of the limitation period within which to bring an action for damages. Mr Williams alleges he suffered injury in the course of his employment with the first defendant, Omeo District Health (“Omeo”), on 13 December 2006, when he was reigniting a boiler burner, in the course of which the boiler exploded, causing him injury (“the incident”).
2 On 12 December 2014, I granted leave to the plaintiff to join the second defendant, Origin Energy Limited (“Origin”) and the third defendant, Don Wright Engineering (“Wright”) as parties to the proceeding. By their Defences, both Origin and Wright plead, pursuant to s5 of the Limitation of Actions Act 1958 (“the LAA”), the proceeding against them is statute barred given it was issued more than six years after the incident.
3 For the reasons which follow, in my view, it is just and reasonable to extend the limitation period as against both Origin and Wright.
Background
4 Details of what transpired over the course of the prosecution of the proceeding are set forth in the affidavit of Mr Williams’ solicitor, Stephen Walsh, sworn 30 March 2015. Mr Walsh has acted for Mr Williams since December 2007. He has continued to act for him through to the present time. It is unnecessary to traverse all the steps taken by Mr Walsh as they are set out in detail in that affidavit, but some of the more significant events are as follows:
· An application for permanent impairment benefits in accordance with s98C of the Accident Compensation Act 1985 (“the ACA”) was made and accepted by the authorised insurer on 18 August 2009.
· A serious injury application in accordance with s134AB of the ACA was lodged with the Victorian WorkCover Authority (“the VWA”) on 11 November 2010. A Serious Injury Certificate for pain and suffering and economic loss was granted on 25 February 2011.
· The VWA commenced a recovery proceeding against Origin[1] in June 2011. Solicitors, Wisewould Mahoney, had the conduct of the proceeding on behalf of the VWA.
[1]County Court Proceeding No CI-11-02605
· On 28 June 2011, a Writ and Statement of Claim on behalf of Mr Williams was issued naming Omeo as the sole defendant. The Writ alleged the incident occurred as a result of Omeo’s negligence and/or breach of statutory duty under the provisions of the Occupational Health and Safety Act 2004.
· On 25 November 2014, Mr Walsh, on behalf of Mr Williams, issued a Summons seeking orders that Origin and Wright be joined as defendants to the proceeding. I heard the Summons on 12 December 2014 and granted leave to join Origin and Wright.
· The Amended Writ and Statement of Claim were served on Origin and Wright on 16 December 2014. Both parties oppose this application.
5 Helpfully, the parties agree that the six-year limitation period referred to in s5 of the LAA expired on 1 October 2014.[2]
[2]This date takes account of s134ABA of the ACA which provides the period during which steps are taken to pursue the s98C claim and the s134AB application is to excluded from calculation of the limitation period
6 Thus, to the date of the issue of the Summons seeking an extension of time, the Writ is out of time by approximately six months.
7 In brief compass, both Origin and Wright submit it is not just and reasonable to extend the limitation period for the following reasons:
· The explanation for the delay in the issue of proceedings, as set forth in Mr Walsh’s affidavit, is inadequate, and he did not act promptly upon becoming aware of a potential cause of action against Origin and Wright.
· Mr Williams has no real cause of action against either Origin or Wright.
· Each will suffer general prejudice in being able to properly defend the allegations brought against them.
· Each says that if an extension was granted against either Origin or Wright, but not the other, then the party remaining in the proceeding will be prejudiced by being unable to bring any contribution proceeding against the other.
8 In addition, Wright claims:
· It will suffer specific prejudice, in that there are relevant documents which are no longer in its possession; and further
· Various parts of the water heater which Williams was attempting to light at the time of the explosion, are lost or no longer exist.
9 Mr Mighell, Counsel for Williams, submitted that in the circumstances, it is just and reasonable to extend the time. He said:
· All the steps taken by Mr Walsh to pursue the proceeding were appropriate in the circumstances, in particular, given the proceeding is complex and it was not until a late time that Mr Walsh was in a position to advise the plaintiff to issue against Origin and Wright.
· He disputed there was specific prejudice as claimed by Wright.
· He submitted the prospects of success of the plaintiff’s proceeding would only be taken into account where the proceeding amounted to an abuse of process.[3] Even if the test was at a higher level, that is, the plaintiff needed to show there was real evidence upon which he could rely to support allegations of negligence or breach of duty on the part of Origin or Wright, there was sufficient evidence in the various expert reports to satisfy that test.
· The period by which the limitation period was exceeded was relatively short.
[3]As per Taylor v Western General Hospital [1986] VR 250
Legislation
10 The application is brought by Mr Williams pursuant to the provisions of s23A of the LAA. That section provides:
“23A Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4)… .”
Relevant legal principles
11 The Court may make an order extending the time for commencement of a proceeding if it determines “it is just and reasonable to do so”.[4] In exercising that discretion, the Court must have regard to all of the circumstances of the case (including but not limited to) the factors set out in s23A(3) of the LAA.
[4]Section 23A(2) LAA
12 The legal principles which I consider most relevant to this application may be summarised as follows:
· The onus of satisfying the Court that it is just and reasonable to extend the limitation period rests with Mr Williams.[5]
[5]Bell v SPC Limited [1989] VR 170 at 174
· In determining an application for an extension of time, the Court should synthesise the competing considerations referred to in s23A of the LAA.[6]
[6]Tsiadis v Patterson (2001) 4 VR 114 at 116 and 123
· The delay referred to in s23A is the delay between the accrual of the cause of action and the making of the application for an extension of time.[7]
[7]Koumorou v State of Victoria [1991] 2 VR 265 at 271
· The availability of a cause of action to the plaintiff against his or her solicitor is a relevant factor to take into account.[8]
[8]Tsiadis v Patterson (supra)
· Time may diminish the significance of a known fact or circumstances and relevant evidence may be lost. It is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to arrange their affairs in the knowledge that they have no liabilities beyond a certain period.[9]
[9]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555
· An inordinate delay may be taken as evidence of prejudice.[10]
· The test of prejudice is not to be determined by whether an order extending time would make the defendant worse off than if the proceeding had commenced within time. What is to be considered is that the defendant’s potential liability expired at the end of the limitation period and the extension would impose a new legal liability upon it.[11]
[10]Tsiadis v Patterson (supra) at 123-124
[11]Brisbane South Regional Health Authority v Taylor (supra) at 554-555
The evidence
13 No witnesses were called to give evidence or be cross-examined.
14 Mr Williams relied upon his affidavit sworn 14 April 2015.[12] Essentially, in that affidavit, he said that he relied upon Mr Walsh to advise him as to the proceeding. Affidavits of Mr Walsh sworn 19 and 30 March 2015[13] were tendered. The second affidavit in particular detailed the period of the delay and the steps taken by Mr Walsh to investigate and progress Mr Williams’ claim.
[12]Exhibit 1
[13]Exhibit 1
15 Origin relied upon the affidavits of Ms Lisa Sylvan sworn 16 April 2015 and 6 May 2015.[14]
[14]Exhibit D2B
16 Wright relied upon the affidavits of Ms Brook Grealy sworn 17 April 2015 and 7 May 2015[15] and the affidavit of Mr Peter Hamilton sworn 17 May 2013.[16]
[15]Exhibit D3B
[16]Exhibit D3A
17 Various other documents were tendered in evidence. The parties provided written submissions.
The delay in bringing the proceeding against Origin and Wright and the steps taken by Mr Walsh
18 Details of the steps taken by Mr Walsh, on behalf of the plaintiff, to prosecute his claim for common law damages are set forth in his affidavit sworn 30 March 2015. From an early time, Mr Walsh took a number of steps, including the application for payment of lump sum compensation pursuant to s98C of the ACA, made application for and was granted a serious injury certificate in late 2010, early 2011, and investigated at length the circumstances of the incident, and the prospects of the plaintiff succeeding in a claim for damages against Omeo and subsequently, Origin and Wright.
19 It is clear from his affidavit, and the reports of various experts retained by the defendants, that the proceeding was not straightforward and it was no easy matter to determine who was responsible for the explosion. However, even accepting those complications, the progress of the proceeding, aside from commencing against Omeo in June 2011, appears to me to have been marked by a lack of urgency. There is no explanation in Mr Walsh’s affidavit as to why the proceeding was not issued against Origin and Wright within time. Generally speaking, competent lawyers practising in this area are acutely aware of limitation periods. As there is no explanation in Mr Walsh’s affidavit as to how it came to pass that the limitation period was exceeded, I infer that it was simply inadvertence; that is, he had not made a careful calculation of when the limitation period was to expire and then ensure the proceeding was issued within that time against Origin and Wright.
20 However, it should be borne in mind that the affidavit discloses Mr Walsh was working relatively constantly obtaining information, communicating with other lawyers involved, retaining an expert to provide advice and obtaining the advice of counsel. This is not a case where a solicitor has sat on his hands and done nothing; quite the opposite. Very little time went by without Mr Walsh advancing the case to some extent.
21 Further, s42 of the Civil Procedure Act 2010 requires a legal practitioner to certify that there is a proper basis for bringing a proceeding against a party. That requires, on the material available, that each allegation of fact in a writ has a proper basis. Thus, the days of issuing against a party without evidence to show there is a proper basis for the claims made, simply to ensure the proceeding is brought within time, are gone. There are significant cost consequences to a solicitor who issues against a party where it is subsequently found there was no proper basis.[17]
[17]Section 46 Civil Procedure Act 2010
22 Origin and Wright, in addition to the general allegation that there is no proper explanation as to why the proceedings were not issued within time and that the steps taken by Mr Walsh were inadequate in the circumstances, made the following points:
(i) Over the period from June 2011 to June 2013, Mr Walsh adopted a “go slow strategy”. This was because he sought to “piggyback” the plaintiff’s proceeding on the VWA recovery proceeding and to use the evidence in the recovery proceeding. However, in May 2013, his Honour Judge Carmody declined to make an order that the VWA recovery proceeding go first. Instead, he ordered that the proceedings be heard together. Origin and Wright say it was clear, from at least that time, urgent steps needed to be taken to properly investigate independent of the VWA recovery proceeding. It was thus not “just and reasonable” for Mr Walsh to adopt that strategy;
(ii) By letter dated 14 April 2012, Origin provided Mr Walsh with non-party discovery.[18] There is no explanation nor assessment of the documents provided in that process, nor what steps were taken as a result;
[18]Exhibit LS2 to the affidavit of Ms Lisa Sylvan sworn 16 April 2015
(iii) By September 2014, notwithstanding that the expert originally retained by Mr Walsh, Dr John Price, had passed away in July of that year, Mr Walsh was in possession of the expert reports of Mr Robert Barnes (retained by solicitors for the VWA),[19] Mr Peter Wenning (retained by solicitors for Origin)[20] and Mr Stephen Brook (retained by Mr Walsh).[21] Further, from an early time, Mr Walsh had available the report of Energy Safe Victoria, the statutory authority responsible for investigation of explosions such as this.[22] He also had a short statement of Mr Wright which set out the steps he took up to the time of the incident.[23] The reports of both Mr Barnes and Mr Brook provided a basis for the issue of proceedings against Origin and Wright. Despite having these reports, Origin and Wright were not joined. No further significant information as to the liability of Origin or Wright was received after February 2014. Many of the allegations of negligence in the plaintiff’s Amended Statement of Claim were based upon the report of Mr Barnes which was received in 2012. The report of Mr Brook added little to the issue of liability;
[19]Plaintiff’s Court Book (“PCB”) 235-246
[20]PCB 364-377
[21]PCB 390-404
[22]PCB 227-229
[23]PCB 224
(iv) Even when leave was granted in December 2014 to join Origin and Wright, there was no urgency about the issue of the Summons applying to extend time, even notwithstanding an order that such a Summons be issued by 28 February 2015;
(v) As early as March 2011, solicitors for Omeo advised Mr Walsh they considered Origin was a potential defendant.[24]
[24]Affidavit of Mr Walsh sworn 30 March 2015 at paragraph 15 (PCB 39)
(vi) Had proper investigations been undertaken at an early time, it would have been clear Origin had contracted the installation of the LPG storage tanks to Wright. This was the subject of a brief to counsel for advice.[25] That ought to have alerted Mr Walsh to the potential claim against Wright.
[25]Affidavit of Mr Walsh sworn 30 March 2015 at paragraph 16 (PCB 39)
(vii) There was sufficient evidence by 2011, given the issue of the VWA proceeding, for Mr Walsh to commence proceedings against Origin. A defence to that proceeding would have implicated Wright, as was the case with the defence by Origin in the recovery proceeding. By April 2012, after Origin had provided Mr Walsh with non-party discovery, it was clear Wright could be implicated. The letter to Mr Walsh from Origin Energy stated:
“Please note further documents may be available from Don Wright Engineering. Don Wright Engineering was Origin Energy’s contractor who performed the work requested by Omeo Health at Omeo District Hospital on 13 December 2006.”
There is no explanation as to why this information was not followed up or investigated. Further, Answers to Interrogatories provided to Mr Walsh by Omeo in May 2012 said advice had been received from “an Origin worker that it was okay to reignite the boilers as they had completed their work”;
(viii) In discussion with the solicitor for the VWA in October 2012, Mr Walsh was advised “Origin was of the view that their contractor Don Wright would be responsible if there was any fault”.[26] This advice was repeated in June 2013.[27] Again, in April 2014, Origin’s solicitor advised Mr Walsh that Origin had a contract with Wright and that “the limitation period for joining Origin Energy had expired”.[28] The reference to the expiration of the limitation period ought to have prompted urgent action.
[26]Affidavit of Mr Walsh sworn 30 March 2015 at paragraph 54 (PCB 46)
[27]Affidavit of Mr Walsh sworn 30 March 2015 at paragraph 67 (PCB 49)
[28]Affidavit of Mr Walsh sworn 30 March 2015 at paragraph 78 (PCB 51)
23 In response, Mr Mighell, for Mr Williams, referred to all the various steps taken by Mr Walsh from the date he commenced acting for Mr Williams through to the present time. He said the steps were extensive, particularly given the complexity of the proceeding and the need to ensure there was a proper basis for joining Origin and Wright. He emphasised:
(a) Although the expert, Dr Price, was engaged in October 2011, he regularly requested further information to be provided to enable his report to be completed. By April 2014, no report had been received despite Mr Walsh being in communication with him. The matter became compounded upon his death in July 2014;
(b) There was a significant delay in obtaining discovery from Origin in the recovery proceeding, and for those documents to be provided to Mr Walsh. Discovery was initially sought in November 2011 and was still being pursued in March 2013. Eventually, Mr Walsh took steps by way of non-party discovery;
(c) There was a significant delay in the provision to Mr Walsh of the VWA’s expert report from Dr Barnes;
(d) It was appropriate in October 2012 for Mr Walsh to make a forensic decision to await the outcome of the recovery proceeding which would pave the way for liability in Mr Williams’ proceeding. That was particularly so given the complexities of determining the involvement of Origin and Wright;
(e) There was a significant delay in obtaining the expert report of Mr Wenning (commissioned by Origin) which was not received until February 2014. After that, Mr Walsh sought further information, including Answers to Interrogatories by Origin in the recovery proceeding, and in May 2014, briefed counsel to draw an amended statement of claim. He was advised it was appropriate to wait for the expert report from Dr Price before issuing against Origin and Wright;
(f) Following the death of Dr Price, Mr Walsh took appropriate steps, including engaging another expert, Mr Lightfoot, and then eventually Mr Stephen Brook. All this took time;
(g) While there were delays, it was not appropriate to look at what had transpired with the benefit of hindsight. While conceding it was open to infer Mr Walsh had inadvertently failed to recognise the expiration of the limitation period, nonetheless he was actively pursuing his client’s interests by further investigation so as to have available appropriate evidence upon which to base the issue of proceedings against Origin and Wright.
24 Mr Walsh has explained at considerable length the reason for the delay in the bringing of proceedings against Origin and Wright. The proceeding was a complex one, at least in relation to determining the nature and extent of any liability of Origin and Wright either in negligence or breach of statutory duty. So much is clear from his investigations of the various parties involved, his retaining of the expert, Dr Price, and subsequently, Mr Brook, his obtaining of details from the VWA in the recovery proceeding and his brief to counsel to advise. Notwithstanding that explanation, what is lacking is a sense of urgency or concern that the proceeding would be statute barred against those defendants. That occurred on 1 October 2014. It is not so much a case of Mr Walsh failing to take all of the appropriate steps, but rather failing to take them within the prescribed time limits.
25 However, as Mr Mighell submitted, the matter should not be looked at with the benefit of hindsight. At the end of the day, the application to extend the time was made within six months of the expiration of the period. While prejudice caused by delay must be assessed over the whole period since the incident occurred, nonetheless the time by which the limitation period is breached, is relatively short.
26 It is clear that a potential action against a solicitor for negligence for failing to issue in time is a matter to be taken into account. Nonetheless, weighing all these matters in the balance, I am satisfied that the steps taken by Mr Walsh were appropriate in the circumstances, and his failure to abide the statutory time limits by six months through inadvertence, are not such as preclude the grant of an extension of time.
Whether there is an arguable case against Origin and Wright
27 In Taylor v Western General Hospital,[29] King J considered an application for an extension of time and said that the prospects of success in the proceeding was not a matter to be taken into account, unless it could be shown that the applicant had no case. He went on to say that an application would fail only if it were made clear that allowing the case to proceed would constitute an abuse of process.
[29]Supra
28 However, Mr Simpson, for Origin, referred to comments by O’Bryan J in Todorovski v Petersville Industries Ltd & Ors,[30] where his Honour said, having considered Taylor and various New South Wales authorities:
“… I do not accept that the relevant legislation in Victoria requires an applicant to adduce evidence of negligence or to satisfy ‘an evidentiary and persuasive onus’ or risk dismissal of the application.
…
However, I am satisfied that sufficient evidence is available to establish a prima face or arguable case in negligence against Defendant 2, Defendant 3 and Defendant 4.”[31]
[30][1999] VSC 213
[31]Todorovski at paragraphs 26 and 28
29 Mr Simpson also relied upon New South Wales authorities, in particular, a decision of the New South Wales Court of Appeal, Yu v Speirs.[32] The Court considered New South Wales legislation similar to s23A of the LAA and said:
“Most cases, in which an extension of time is sought, are concerned with the plaintiffs providing acceptable reasons for the delay in bringing the proceedings, and the issue as to whether, and to what extent, the defendant has suffered prejudice in consequence of the delay. However, there is clearly an obligation on the plaintiff, relevantly for present purposes, in satisfying the requirement that it is ‘just and reasonable’ to extend time, not merely to be able to plead a cause of action, which is not susceptible of being struck out, but to prove facts from which the Court can be satisfied that there is, at least, a reasonable prospect that the plaintiff has sufficient evidence, such that he or she will have a reasonable prospect of success on the ultimate hearing. … .”[33]
[32][2001] NSWCA 373
[33]Yu at paragraph 17
30 There does not appear to be any determination on the issue from our Court of Appeal.
31 With respect, in my view, the test propounded by Yu which requires an applicant in an extension of time to prove facts such as to show a reasonable prospect of success at the ultimate hearing, goes too far. O’Bryan J, in Todorovski, said as much.[34] Were the New South Wales test to be applied, it would be incumbent upon an applicant to either call viva voce evidence, or place evidence upon affidavit from proposed witnesses, with the prospect of subjecting them to cross-examination, to determine whether there was evidence to show a reasonable prospect of success. I prefer the statement of O’Bryan J that there is no requirement upon an applicant to adduce evidence of negligence nor to satisfy “an evidentiary and persuasive onus”.
[34]At paragraph 26
32 Bearing in mind these authorities, I conclude the following:
· Some account must be taken of the evidence available to a plaintiff to determine whether he or she has an arguable case.
· If it is clear there is simply no real evidence available to support the plaintiff’s claim then the application should fail.
· If evidence can be pointed to, not to show that there is a reasonable prospect of success, but rather to show that there is an arguable basis upon which a claim in negligence or breach of statutory duty could be maintained, then that is sufficient.
· That evidence should be real, and available either directly from witnesses who a party proposes to call, or available by appropriate inference.
· It would not be an appropriate task for a judge, at the application for an extension of time, to weigh, on the one hand, the evidence of the plaintiff and, on the other hand, the evidence of the defendants, and prefer the evidence of the defendants, thus determining there is no arguable case.
33 Origin argues there is no evidence of negligence or breach of duty against it. It says:
(i) Origin engaged Mr Wright, a qualified and experienced gas fitter, to undertake the installation of the LPG containers. It was not part of Origin’s agreement with Omeo to carry out an internal inspection of the pipework and valves to determine whether there were any obstructions from foreign material, which was found to be the ultimate cause of the explosion;[35]
[35]The report of Energy Safe Victoria concluded: “The cause of the incident was debris on the flame safe guard valve seat allowing the valve to remain partially open, and resulting in gas flowing to the main burner unit” – PCB 229
(ii) Origin was not responsible for the build up of debris in the inlet filter of the gas control;
(iii) There is no allegation that the explosion was caused by any defect in Origin’s two LPG tanks;
(iv) Mr Williams, by his affidavit sworn in support of the serious injury application in November 2010 said:
“I believe my employer is responsible for my injury as there was a failure to inspect, repair and maintain the hot water boiler burner which I was subsequently advised meant that there was pipe debris under a gas valve seat which prevented the valve from closing.”
34 Wright also argues there is no sufficient evidence against it to establish a prima facie or arguable case. It says:
(i) Other than the Barnes’ report, none of the other expert reports, nor the Energy Safe report, implicate Wright;
(ii) The allegation against Wright is that the valve ought to have been inspected and the debris removed. The valve was located in the boiler room where Mr Williams was working. There is nothing to suggest a contractor in the position of Wright ought to go to inspect gas vessels in another part of the premises;
(iii) There were defects in the Barnes’ report, in particular, that it was done ‘on the papers’ without an inspection of the premises or equipment, or testing of the valve in question. The Brook report obtained by the plaintiff refers to insufficient and conflicting information and little evidence that individual actions led to the explosion. The Brook report was also done ‘on the papers’ without testing of the equipment;
(iv) There was no allegation in the Statement of Claim as against Wright of any duty of care existing between Mr Williams and Wright.
35 Mr Mighell, for Mr Williams, said there is sufficient evidence in the report of Mr Barnes and Mr Brook to establish an arguable case against Origin and Wright. He points to the particulars pleaded in the Amended Statement of Claim.[36]
[36]Plaintiff’s Amended Statement of Claim of 16 December 2014
36 In my view, there is sufficient evidence available from the reports of the experts, in particular, Mr Barnes and Mr Brook, to indicate there is an arguable case to be maintained by the plaintiff against Origin and Wright.
37 The Barnes’ report points to the following:
· Given Mr Wright admitted that he went to look for Mr Williams to advise that he was ready to light the pilot lights, Mr Williams was entitled to expect that all necessary safety procedures and checks had been conducted before he attempted to do so;[37]
[37]PCB 244
· Had all the necessary safety measures been followed at the time of the installation of the LPG vessels, including inspection of the relevant gas control valve and ensuring it was cleaned or replaced, the incident would not have occurred.[38] The report said:
[38]PCB 245
“This contaminant material has come from the pipework leading from the LPG storage tanks and possibly also from the replaced tanks themselves. This contaminant material should have been removed prior to service of the system.”[39]
· Wright was contracted to provide the installation of the new LPG containers. They were provided by Origin. The implication from the report of Mr Barnes is that either Origin or Wright, or both, had an obligation to ensure the pipes were inspected and any contaminant material removed.
[39]PCB 245
38 According to the report of Mr Brook:
· When Mr Wright arrived at the site on the day of the incident, he met with Mr Williams at the tanks and explained what he was going to do that day, including not to reignite the pilot lights until Mr Wright had finished transferring the gas to a new tank;[40]
[40]PCB 398
· Mr Wright inspected the room where the gas boilers were with Mr Williams;[41]
[41]PCB 398
· Mr Wright went to find Mr Williams after he completed his work but by that time, the explosion had occurred;[42]
[42]PCB 398
· There was evidence of unsafe practices:
§ There was a report that the gas installation became depressurised which would indicate a gas escape, as suggested by Mr Wright;
§ Mr Wright left the hospital site when he had reason to believe the gas installation was unsafe;
§ There is some conflict between information provided by Mr Wright in his report, and to his solicitors, about testing for tightness in the isolation valve;
§ Mr Wright failed to communicate the status of the gas installation to Omeo before leaving.[43]
[43]PCB 403
39 I am satisfied, on the basis of these reports, there is sufficient evidence for the plaintiff to found an arguable case. That is not to suggest that the evidence of Mr Barnes or Mr Brook will be accepted. That will be a matter to be determined at trial. The failure to plead a duty of care against Wright can be cured by amendment. Given the role played by Wright and the knowledge that at some stage Mr Williams would light the burner, it is hard to imagine there was not duty of care owed.
Prejudice to Origin and Wright
40 Given Origin has been a defendant to the recovery proceeding brought by the VWA, it does not allege specific prejudice.
41 Wright, however, alleges specific prejudice:
(a) The Energy Safe investigation report found that the incident was caused by debris in a multi-functional SIT-Eurosit gas control.[44] According to the Barnes’ report,[45] the relevant gas control (valve) could not be located. Mr Barnes made enquiries of Mr David Wittenden, manager of investigations at Energy Safe, who advised – “after an extensive search, ESV does not appear to have the valve”. However, earlier in the report, it was said that the valve was collected by a Mr Farquhar of Farquhar’s Plumbing, plumbers retained by Omeo to carry out maintenance work at the site. According to Ms Kaye, on behalf of Wright, the third defendant is disadvantaged by not being in a position to have its own expert examine the equipment, in particular the valve;
[44]PCB 228-229
[45]PCB 239
(b) Photographs taken by the Energy Safe investigator[46] indicate the water heater which was photographed for the purpose of the investigation may not be the water heater involved in the incident. If the water heater was replaced, then the pipes were likely to have been replaced as well. Again, Wright’s expert could not examine this equipment;
[46]PCB 182
(c) According to the affidavit of Ms Grealy, due to the effluxion of time, the following documents can no longer be located:
(i) Documents evidencing or relating to its contract or agreement with Origin;
(ii) Documents relating to works or services performed for or on behalf of Origin;
(iii) Financial documents in relation to works or services performed for or on behalf of Origin;
Ms Kaye submits these documents are important for establishing the nature of the relationship between the parties;
(d) Unlike Origin, Wright was not made a party to the recovery proceedings, and has only just recently been involved in the present proceeding. It holds very few documents and it is difficult now, more than eight years since the occurrence of the incident, to make all appropriate enquiries and investigations.
42 On behalf of the plaintiff, Mr Mighell submitted the following:
(a) In relation to any contractual document between Origin and Wright, it is clear from correspondence from the solicitors for Origin to its expert, Mr Wenning, of February 2013, that there was no written contract between Origin and Wright;[47]
[47]PCB 406
(b) At a point shortly after the incident, Mr Wright prepared a short statement in bullet points as to what had occurred.[48] This document set out his involvement;
[48]PCB 224
(c) The circumstances giving rise to the incident are not significantly in dispute. The reason for the explosion is set forth in the report of Energy Safe which was prepared following an inspection shortly after the incident. The experts retained have had access to the Energy Safe report and Mr Wright’s statement;
(d) Notwithstanding the difficulties Wright submits it will encounter investigating the incident, it has provided an Amended Defence[49] which sets out in considerable detail the steps Wright undertook on the day in relation to the equipment and the valve. This, according to Mr Mighell, would indicate Wright was able to get comprehensive instructions as to what occurred;
(e) The circumstances surrounding the incident related to the build-up of debris in a pipe, and not to any structural failure of any equipment. Thus the reason for the explosion was not controversial and nothing would be achieved by providing the equipment to Wright’s expert. It was not the same as a case, for example, where there was some contentious structural defect.
[49]Leave was granted to Wright to file an amended defence on 13 May 2015
43 I conclude that the prejudice suffered by Wright and, to a lesser extent, Origin in being able to defend the allegations at trial is not such as to prevent the extension of time. I say that for the following reasons:
· No enquiries have been made of Farquhar as to the whereabouts of the valve and other equipment.
· There is no significant issue as to how the gas came to escape from the valve, thus causing the explosion, given the initial investigation by Energy Safe Victoria. There would be no significant prejudice to Wright in not having an expert investigate the equipment.
· According to Origin, there was no written agreement between Origin and Wright.
· Ms Grealy’s affidavit sets out a number of documents which are said to have been destroyed or no longer in Wright’s possession. However, the description of documents sought is very general. There is no affidavit as to precisely what enquiries were made of what person seeking to obtain documents, and the result of those enquiries. Notwithstanding that Wright is essentially a ‘one man show’, in an application such as this, I would have expected Wright or a person within the employ of Wright, if any, to set out clearly what documents remain in its possession, and what searches have been made to discover other documents which may have been in existence and since lost or destroyed. The investigations referred to appear to me to be somewhat cursory.
· It would appear from the matters referred to in Wright’s Defence that it has been able to obtain sufficient details to plead the matters relied upon. In the absence of any affidavit material deposing that a witness who was involved in the incident had no particular recollection of what occurred, it would appear Wright’s solicitors have been able to obtain sufficient instructions to respond to the plaintiff’s allegations.
Conclusions
44 As the authorities have said it is necessary to synthesise all the competing considerations. The concept of what is “just and reasonable” must take account of the matters referred to in s23A(3) of the LAA. No one issue will determine the outcome of the application, rather all the issues argued by the parties and taken as a whole should be considered.
45 For the reasons referred to, while there have been significant delays in the prosecution of the plaintiff’s case by Mr Walsh, those delays are explained to a significant extent. While the steps taken and the delays involved are not particularly satisfactory, and there does not appear to have been a sense of urgency in joining Wright and Origin, nonetheless the explanation provided by Mr Walsh is not such as would preclude the Court from extending time.
46 Further, I am satisfied that the plaintiff has a sufficiently arguable case, based upon the material annexed to and contained in the various affidavits and reports.
47 While there is some prejudice, in particular to Wright, in defending the allegations, again, it is not such as to prevent an extension of time on the grounds that it is “just and reasonable” to grant the extension.
48 In the circumstances, the plaintiff’s application succeeds.
49 I shall hear from the parties as to costs.
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