Smith v James Hardie Building Services Pty Ltd & Civil & Civic Pty Ltd [2002] ACTSC 67 (26 July 2002)

Last Updated: 2 August 2002

Maureen Anne Smith v James Hardie Building Services Pty Limited ACN 010 654 994 & Civil & Civil Pty Limited ACN 000 098 162 [2002] ACTSC 67 (26 July 2002)

CATCHWORDS

LIMITATION ACT - Extension of time - personal injuries claim - no prejudice to defendant.

Limitation Act 1985, s 36(2), s 36(3)

Supreme Court Rules O61A r1(z)

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Moon v Moon [2001] FCA 1712

No. SC 508 of 1998

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SC 508 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: Maureen Anne Smith

Plaintiff

AND: James Hardie Building Services Pty Limited ACN 010 654 994

First Defendant

AND: Civil & Civic Pty Limited ACN 000 098 162

ORDER

Coram: Master T. Connolly

Date: 26 July 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The period within which the plaintiff may bring this action against the first and second defendants be extended to 3 August 1998

1. This is an application by way of notice of motion to exercise the discretion pursuant to s36 of the Limitation Act 1985 to extend time in respect of an employment related accident that occurred in July 1992. The plaintiff commenced proceedings by way of originating application on 3 August 1998. She brought a claim against James Hardie Building Services Pty Ltd, her then employer, and Civil and Civic, who were project managers at a construction site at the Gordon Primary School in the Australian Capital Territory. The plaintiff alleges that in the course of her employment with the first defendant she attended at the site and slipped on a plywood ramp which she alleges had been erected by the second defendant and used as a walkway.

2. A defence was filed by the second defendant on 30 September 1998, which raised the defence that the cause of action was statute barred in that it arose more than six years before proceedings were issued. In such circumstances it is necessary for a plaintiff to make application for the exercise of the discretion to extend the limitation period for personal injuries claims beyond six years. No appearance was entered for the first defendant, and no defence was filed, and on 11 June 1999 the plaintiff obtained an interlocutory judgment against the first defendant. The notice of motion seeking the extension of time to bring the proceedings was opposed by the second defendant. No appearance was entered for the first defendant.

3. The Limitation Act 1985 provides that a claim for damages for personal injuries should be brought within six years in the Australian Capital Territory, but the court may extend a limitation period in a personal injuries claim if it is "just and reasonable" so to do pursuant to s 36(2) of the Act. This is a power that may be exercised by the Master (Supreme Court Rules O61A r1(z)). The Limitation Act provides guidance as to the exercise of the discretion conferred by s 36(2) as follows:

"s36(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 conduct of the defendant after the cause of action occurred to the plaintiff, including the extent ( if any) to which the defendant took 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 or she know 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 or she may have received.

4. The plaintiff gave evidence that on or about 16 July 1992 she attended the Gordon Primary School construction site as part of her duties as an area manager for the first defendant. The construction company with control of the site was Civil and Civic. She says that she arrived in the company of a Mr Porter, an engineer also employed by the first defendant, and she asked to see Mr Mike Cave, the project manager. She says that she was told that Mr Cave was not present that day. She and Mr Porter entered the site and conducted an inspection of a new product that was being used for acoustics panelling in the auditorium. After completing the inspection they entered a class room by way of a ramp about six inches off the ground and twenty eight inches long that was being used by labourers to wheel materials into the room. She says that she slipped on this ramp and she heard her leg snap. She sustained a fracture in the fall. She says the ramp was covered by fine sand. Mr Porter drove her to Canberra Hospital where her left leg was put in plaster. It remained in plaster for six weeks, and she says she was off work for about two months, although she says she did some office work from home.

5. She says that the injury improved with exercise and physiotherapy, and she says that "Work cover sent me many letters asking for a review of the condition of my leg." She says that after about 18 months she asked her immediate supervisor whether she had any rights to compensation as she did not think that she had recovered completely, and was told that the first defendant "did not view employees in high esteem that made compensation claims". She says that at the time she was a single mother with responsibility for bringing up her children, and so she did not pursue a claim.

6. She took no further action until she saw her present solicitors in October 1997. At the first interview she incorrectly told her solicitor that the accident occurred in July 1993, and it was not until late June 1998 that she advised her solicitor that the accident had occurred in 1992 not 1993. It was not until 3 August 1998 that she advised her solicitor of the exact date, and by this time the six-year limitation period had elapsed. She says that her medical advice is that she has developed an osteo arthritic condition at the site of the fracture, which she says is attributable to the fracture, and may lead to ongoing disability.

7. The plaintiff's solicitor filed an affidavit which contained copies of the hospital notes following the accident, and general practitioner and other medical notes showing her condition and complaints following the accident.

8. There was no appearance and no evidence for the first defendant.

9. The second defendant filed an affidavit from their solicitor with attachments. This included a letter from James Hardie Industries Limited which stated that that company sold the company James Hardie Building Services Ltd in December 1996 and had no records in relation to the company. There was also a letter from the second defendant's solicitors to the plaintiff's solicitors in which they requested any information the plaintiff had about Mr Porter. The reply states that the plaintiff knows only that Mr Porter was an employee of the first defendant at the time, and does not know his present whereabouts. Nothing is said of the solicitors state of knowledge of the records of the second defendant.

10. There is no evidence from any officer of the second defendant. There is no evidence that the second defendant has any difficulty in obtaining or collating records concerning this construction project. There is no evidence that the second defendant can not locate Mr Cave, who was the project manager on the site.

11. It seems to me that this is a matter where what is in issue is the presumptive prejudice referred to by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 where His Honour said at 555 that

"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case."

12. All that the second defendant has shown by evidence here is that a company that no longer controls the first defendant does not have the records belonging to the first defendant, and that the plaintiff does not know the whereabouts of Mr Porter. This, it seems to me, does not amount to evidence of actual prejudice. Nevertheless, the proceedings were brought out of time, and the court must accept that there is presumptive prejudice. In these circumstances the approach I should adopt, following the High Court statement in Brisbane South Regional Health Authority v Taylor, is well set out by Miles and Stone JJ in Moon v Moon [2001] FCA 1712 where Their Honours say at [11]

"In accordance with principle, the plaintiff had to show that, despite that prejudice, the defendant was not denied the prospect of a fair trial of the issue of the nature and extent of the plaintiff's disability (if any) and associated symptoms".

That is to say, the presumption of prejudice, in the absence of any evidence of actual prejudice, casts an onus on the plaintiff to prove that the defendant can still have a fair trial.

13. The plaintiff has, it seems to me, established that she meets the criterion necessary for the exercise of the discretion. She has given an explanation as to why she did not commence proceedings at the time. I am satisfied that she was discouraged from bringing a claim by her then employer, the first defendant. I am satisfied that she thought that she had made a full recovery from the fracture, and that as she became aware of an ongoing problem she sought legal and medical advice. She was mistaken by this time about the date of the incident, and as a consequence was some 17 days out of time by the date on which proceedings were instituted.

14. She has provided extensive medical material. She has provided the identity of the officer of the second defendant in charge of the building site at the time, and there has been no evidence from the second defendant concerning this. She has given the identity of the employee of the first defendant who accompanied her at the time of the accident. The second defendant's solicitor has said only that the company that formerly controlled the first defendant no longer has the records relating to the first defendant. Nothing more is said.

15. It seems to me on all of the evidence that the plaintiff has been able to discharge the onus to show that, despite the presumption of prejudice because proceedings were not instituted within six years, the defendants can have a fair trial. There is no evidence at all from the first defendant, and I am satisfied that it is just and reasonable to extend the limitation period in respect of the first defendant. The second defendant has put on evidence, but this does not, in my view, establish actual prejudice. The plaintiff has satisfied me that the second defendant can still have a fair trial, and I am satisfied that it is just and reasonable to extend the limitation period in respect of the second defendant also.

16. The period within which an action may be commenced on the cause of action of Maureen Anne Smith against James Hardie Building Services Pty Ltd and Civil and Civic Pty Ltd arising from an accident on 16 July 1992 is extended until 3 August 1998. I will hear the parties as to costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly

Associate:

Date: 26 July 2002

Counsel for the Plaintiff: Mr S Pilkinton

Solicitor for the Plaintiff: Higgins Solicitors as agents for: Andrew Fegent & Company

Counsel for the Second Defendant: Mr R Crowe

Solicitor for the Second Defendant: Curwood & Partners

Date of hearing: 21 June 2002

Date of judgment: 26 July 2002