Earsman v Wagga Mobile Cranes P/L

Mark Gregory Earsman (Plaintiff) PARTIES : Wagga Mobile Cranes Pty Limited (Defendant) JUDGMENT OF : Master Harrison

Mr E U Romaniuk (Plaintiff) COUNSEL : Mr James Stewart (Defendant) Farrell Lusher, Wagga Wagga by their agents Turner Whelan SOLICITORS : (Plaintiff)

PricewaterhouseCooper Legal (Defendant) CATCHWORDS : Extension of time - ss 60C & E Limitation Act LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylotr (1996) 186 CLR 541; 139 ALR 1 Holt v Wynter [2000] 49 NSWLR 128 CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122 Szerdahelyi v Bailey, Ortado v Bailey and Lewis Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Torts Reports 81-485 Fitzgerald v Bankstown City Council (NSWCA unreported 6 November 1995) Manfield v Heather [2000] NSWCA 36 DECISION : (1) Leave is granted to extent the limitation period against the defendant in relation to an accident which occurred on 30 August 1996 up to and including 16 August 2002; (2) The plaintiff is to file and serve a statement of claim on or before 16 August 2002; (3) The plaintiff is to pay the defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12692/2001 - MARK GREGORY EARSMAN v WAGGA MOBILE CRANES PTY LIMITED

JUDGMENT (Extension of time - ss 60C & E) 1 MASTER: By notice of summons filed 27 August 2001 the plaintiff seeks an order extending the time within which to commence proceedings against the defendant pursuant to ss 60C & E of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavits sworn 9 August 2001, 18 December 2001 and 8 March 2002 and two affidavits of Peter Wayne Smith sworn 18 December 2001, 2 April 2002 and 15 April 2002. The defendant relied on the affidavit of Michael Anthony Bowyer sworn 28 February 2002. 2 On 30 August 1996 at about 2.00 pm the defendant was employed to load a large, heavy cattle ramp onto its semi-trailer for transportation to Wingham. The cattle ramp was erected at the plaintiff's business premises. The buffer of the ramp (a protective piece of steel for the purpose of cushioning any impact from a backing truck) had to be loaded separately. The following events are alleged to have occurred. The truck driver directed the plaintiff to load the buffer onto the truck using the front end loader which was in the yard, rather than slinging it and lifting with the crane. The crane driver agreed that the buffer should be loaded by that method. The buffer weighed about 400-500 kilograms. The plaintiff drove the front end loader over to where the buffer was laid on the ground. He could not slide the forks under the load cleanly. At the time, the crane driver and the truck driver were securing the load on the truck. They were about 20-30 metres from the plaintiff. The plaintiff thought he could slide the buffer onto the forks manually. The buffer was at an angle in that one side was more on the forks than the other. The plaintiff went to the side which was only partially on the forks and using both hands in a crouched position facing the buffer, tried to push this side onto the forks so that it was evenly aligned. The plaintiff was in the process of performing this task when he felt a sharp twinge in his lower back. 3 The plaintiff was born on 8 April 1971 and is presently 31 years of age. He resides in Wagga Wagga. He is married and has two children. After the plaintiff completed the Higher School Certificate he obtained qualifications as a wool classer. In 1994 the plaintiff and his partner, Phillip Lamprey started a formwork business, Riverina Rural Constructions, which was operating at the time of the accident. 4 The plaintiff sues in negligence and for breach of contract. It is convenient to record that I observed the plaintiff both giving evidence and being cross examined and I formed the opinion he gave truthful evidence. Although the plaintiff was of the view that he had a good memory, his recollection of his consultations with a chiropractor proved to be inaccurate. I shall refer to this later in this judgment.

The Law 5 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the defendant. Sections 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides: "Ordinary action (including surviving action) 60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, 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, not exceeding 5 years, as it determines." 6 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following: (a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 7 In relation to ss 60C and 60E of the Act, Mason P in The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 referred to propositions which were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. 8 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 9 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 128 by the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at 147 para 119 where their Honours stated that the effect of the High Court decision in Taylor's case is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 10 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 11 The cause of action accrued on 30 June 1996. The limitation period expired on 30 June 1999. The application seeking the extension of time was filed on 27 August 2001, ie. about 2 years and 2 months out of time. 12 The plaintiff's explanation for delay was that because he was self employed he thought that he was not entitled to take workers compensation proceedings but rather rely on the benefits of his insurance policy. About two years after the accident occurred the plaintiff asked Dr Donohoe if there was anything he could do. The doctor told him that he didn't think so because he was working for himself. Thus the plaintiff's own view that he did not have a right to seek legal redress was reinforced. He never thought about the accident being a motor vehicle accident because there was no collision and the truck was stationary. Throughout this time the plaintiff remained hopeful that his back would come good. After five years he realised that it had not. On 1 June 2001 (nearly 5 years after the accident) the plaintiff first consulted a solicitor seeking legal advice in relation to the accident. From the evidence, it is not clear what triggered the plaintiff to depart from his previously held view that he was not entitled to compensation to seek legal advice in relation to the accident. The defendant submitted that this is not a satisfactory explanation. It is my view that the plaintiff's lack of knowledge of his legal entitlement is understandable although I accept that the trigger which caused the plaintiff to seek legal advice after five years is not clear.

Extent to which delay caused prejudice - s 60E(b) 13 The defendant submitted that it is prejudiced and will not be able to obtain a fair trial because it cannot properly investigate the accident, nor can it properly investigate the plaintiff's prior back condition. In August 2001 the defendant first received notice of the plaintiff's claim. There were four people present when the accident occurred, namely the plaintiff, Mr Murphy who was subcontracted to Riverina Rural Constructions, the truck driver Mr Tonacia and the crane driver Mr Len Auld. Mr Auld has been located. The defendant's investigator has reported that Mr Auld has no recollection of the accident. 14 There are photographs of the cattle ramp in existence. From the evidence provided by the plaintiff, Mr Murphy and Mr Tonacia, it is not disputed that the buffer was loaded onto the truck separately. 15 The plaintiff deposed that he and his partner assisted the defendant's employees by steadying the ramp when it was being lifted onto the truck. When the buffer of the cattle ramp had to be loaded, it is the plaintiff's evidence that the truck driver advised him that "It'll be easier to lift the buffer with the front end loader rather than chain it up and have the crane lift it. I'll just go and see what the crane driver reckons". The plaintiff had never previously been involved in loading the cattle yard onto a truck. While the truck driver and the crane driver were securing the load on the back of the truck and were about 20-30 metres away from the plaintiff. The plaintiff then drove the front end loader up to the buffer but could not slide the forks under it cleanly. The plaintiff attempted to manually slide the buffer onto the forks and when doing so, he felt a sharp twinge in his back. According to the plaintiff he stood up and Tony Murphy said "Are you alright" and the plaintiff relied "I think I've just done my back in". Tony Murphy confirms that this conversation occurred. 16 Mr Tonacia has provided a written statement dated 5 November 2001 (Ex 1). He does not remember anything out of the ordinary happening and does not remember much about the particular job. More specifically he does not recall the alleged conversation with him. He cannot remember how the buffer was placed on the truck. However, he does say that Len and he would have been responsible for supervising the loading of the race onto the truck. Mr Tonacia conceded that it is quite common for the people that they are doing the move for to help them on occasion and that they usually do this without being asked. But due to the time that has elapsed he cannot specifically recall if any of the persons present during the loading of the race (yards) on to the truck gave him any assistance. He also added that if a person were injured during the course of one of his jobs he would immediately contact Tom Curtis or one of the companies other managers and advise them of the accident. No report was made. 17 The invoice issued by the defendant in relation to the carrying of the cattle yards to Wingham is in existence. There is an entry in the defendant's truck booking diary dated 30 August 1996 which states "RIV RURAL CONST LOAD RAMP BOMEN". There are photographs of the double deck unloading ramp and an advertising brochure of a similar unloading cattle ramp built by the plaintiff's company. Mr Murphy remembers assisting the plaintiff cutting the legs off the unloading ramp. He does not recall any conversation between the crane driver and the plaintiff. However he does remember seeing the plaintiff on the old tractor with forks. He also recalls going over to help the plaintiff load the buffer and the plaintiff saying "I think I've done my back in". At that stage the buffer was not on the forks. Then the truck driver and crane driver came over and assisted straightening the buffer and loading it into the truck. Mr Murphy recalled that on the trip to Wingham the next day the plaintiff was complaining about his back and could hardly walk. 18 Mr Tonacia's inability to recall whether a conversation occurred between him and the plaintiff causes the defendant some difficulty in preparing for trial. However, the surrounding events are not disputed and Mr Tonacia has been able to give evidence about what usually occurs and this is consistent with what may have occurred here, particularly in light of the fact that the plaintiff had not previously been involved in loading a cattle yard onto a truck. 19 In relation to the defendant being able to investigate the plaintiff's medical condition, the plaintiff consulted Dr Donohoe when he returned from Wingham on 6 September 1996. The reports of Dr Donohoe dated 20 May 1997 and 8 October 1997 are available. The report of Dr Miniter dated 10 September 1997 is also available. The CT scan taken on 12 September 1996 is available. There are comprehensive medical reports which detail the plaintiff's back condition since the accident. The files of Dr Miniter, Dr Donohue and Dr Dewey are available. The records and report of Mr David Neil a chiropractor who treated the plaintiff over a number of years are also available. 20 The plaintiff has experienced back problems on a number of occasions prior to the accident. In 1984 the plaintiff fell off a horse while show jumping and injured his lower back. In 1992 the plaintiff saw the chiropractor on a number of occasions with lower back pain. Between 12 March 1992 and 9 March 1996 the plaintiff did not consult the chiropractor. However, on 9 May 1996 the plaintiff attended the chiropractor complaining of lower back pain of a duration of three weeks. The site of the pain was the right side of the lower back. He had a subsequent adjustment including the left posterior sacrum and lumbar vertebrae (L4) right posterior inferior. On 23 July 1996 the plaintiff again attended the chiropractor with left lower back pain. He had an adjustment of the sacrum left posterior inferior and lumbar vertebrae right posterior. The adjustment to the right posterior lumbars was not entirely successful and follow up treatment was advised. On 26 July 1996 the plaintiff failed to attend an appointment. Hence the plaintiff had a sore back about one month prior to this accident. In cross examination, the plaintiff could not recall what caused his back to become sore one month prior to the accident. The general practitioner's report refers to a neck injury which occurred in May 1996 when the plaintiff fell on his head causing a forced flexion of his neck. An x-ray was performed which was reported as normal. However he did say that the pain he experienced in the August accident was different and more severe to any other back pain he had previously experienced. Dr Searle has provided a medico-legal opinion and has referred to a number of prior back injuries but there is no reference made to back pain the plaintiff experienced one month prior to the accident. Dr Searle opined that the work on 30 August 1996 caused damage to the lower two lumbar discs. The plaintiff has been examined by Dr Kohan for the defendant. No report has been served (Ex A). I infer that the history of prior back pain did not prevent Dr Kohan in forming a view as to the injuries that the plaintiff received in this accident. 21 Since 1991 and up until recently the plaintiff has been attending the same general practitioner, Dr Donohoe. Dr Donohoe has recently retired. Dr Knight is the plaintiff's current general practitioner. As previously stated the plaintiff sought medical advice as soon as practicable after the injury occurred. In September 1996 the plaintiff was referred to an orthopaedic surgeon Dr Miniter. 22 The plaintiff completed a claim form and forwarded it to Australian Casualty & Life (the insurer). On 7 July 1997 and 15 June 1998 Dr Dewey, orthopaedic surgeon, provided a report to the insurer. On 15 March 1999 Dr Adrian Van Der Ryt examined the plaintiff for the insurer and a report was provided. On 22 May 2000 a further lumbar spine CT was taken. A note by Dr Annemarie Fulop, a consultant in rehabilitation medicine, is also available. On 23 May 2002 the plaintiff was examined by Dr Griffith for Australian Casualty & Life. To receive continued insurance payments the plaintiff was required to see his general practitioner on a monthly basis to obtain medical certificates. The chiropractor that the plaintiff consulted while on the trip to Wingham was Mr Bryan Barras, Highway Centre, 35 Princes Street, Cundletown. Thus, overall there is medical evidence of the plaintiff's back condition from the accident to date. There is also evidence available in relation to prior back injuries except for treatment by a chiropractor one month prior to the accident. 23 There is no evidence that had the plaintiff commenced the proceedings within the limitation period that any documentary evidence which would then have been available has now been lost. However, over time some of the witnesses' recollections have faded.

The time at which the injury became known to plaintiff - s 60E(c) 24 The back injury became known to the plaintiff shortly after the accident which occurred on 30 June 1996.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss - s 60E(d), (e) and (h) 25 Two days after the accident the plaintiff travelled to Wingham and on arrival, he had difficulty walking and was suffering pain down his right leg. On 3 September 1996 the plaintiff consulted a chiropractor who told him to see a doctor as soon as he returned home to Wagga Wagga as he thought that there was something "major wrong". On 6 September 1996 the plaintiff consulted his GP, Dr Peter Donohoe. On 25 September 1996 because the plaintiff's medical condition had not improved he consulted an orthopaedic surgeon, Dr Paul Miniter. In 1998 the plaintiff attempted to return to work carrying out lighter duties as a wool classer. The plaintiff from time to time is able to work as a wool classer for a period of up to two months before the back pain becomes too great. On 23 May 2000 Dr Graham Griffiths advised the plaintiff not to have surgery on his back at this stage as there is only a 40 to 50% chance of making it any better. 26 From the above, the plaintiff knew that he had a serious back injury that meant that he could not return to his employment within a few months of the accident. In 1998, some two years after the accident the plaintiff would have become aware that he may never be able to return to work on a full time basis although he was still hopeful that his back would improve. In May 2000, 4 years after the accident the plaintiff would have become aware that his back condition would not improve nor would surgery be of assistance. The plaintiff is a relatively young man. The overall medical opinion is that he will never be able to return to heavy labour but is capable of carrying out lighter work and may be able to return to wool classing after a couple of months. However he has subsequently attempted to return to wool classing but has experienced difficulties with his back. He has a serious injury which has significantly affected his earning capacity. 27 The plaintiff only became aware that the defendant may have been negligent in not properly supervising him when he sought legal advice in June 2001.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 28 There is no conduct by the defendant that induced the plaintiff to delay brining action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 29 As previously stated, the plaintiff did not commence legal proceedings as he did not think he was entitled to do so. Once the plaintiff sought legal advice he gave instructions to commence proceedings in June 2001. The plaintiff and his solicitors acted expeditiously in commencing legal proceedings. The summons was filed on 27 August 2001. 30 I turn to consider whether the plaintiff has a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (1998) Aust Tort Reports 81-485; Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995); and Manfield v Heather [2000] NSWCA 36. There is a report from D Tozer and Associates which stated that the loading operation was under control of the defendant and it was its employees who directed the plaintiff to load the buffer using a front end loader instead of using the mobile crane which had been provided by the defendant for the loading operation. 31 After having directed to the plaintiff to place the buffer on the front end loader, there was then no supervisions of this loading activity by the defendant. It was only after the plaintiff was injured that the defendant's employees came to his aid and manually positioned the buffer correctly on the forks of the front end loader. The plaintiff was not an experienced rigger or dogman. The defendant was engaged to provide the expertise required to safely load the unloading ramp and its ancillary components for transport to Wingham. In Mr Tozer's opinion the accident to the plaintiff occurred because he was not properly supervised while loading the buffer onto the front end loader. This operation was part of the overall truck loading operation for which the defendant was responsible. An employee of the defendant has admitted that they had the responsibility for supervising the loading of the truck. The plaintiff has a real case to advance. 32 It is my view that the defendant has not suffered significant prejudice. The defendant will be able to obtain a fair trial. I have taken the matters referred to in s 60E(a) to (h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the defendant. 33 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. 34 The orders I make are:

(1) Leave is granted to extend the limitation period against the defendant in relation to an accident which occurred on 30 August 1996 up to and including 16 August 2002.

(2) The plaintiff is to file and serve a statement of claim on or before 16 August 2002.

(3) The plaintiff is to pay the defendant's costs. **********

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