Elias David Perez v Instant Access Australia Pty Limited

CATCHWORDS: Limitations - date of discoverability

Civil Procedure Act 2005 (NSW), s 61 LEGISLATION CITED: Limitation Act 1969 (NSW), ss 50C, 50D Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Antonini v SRA (No 2) [2006] NSWDC 133 Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234 CASES CITED: Ford Excavations Pty Ltd v Do Carmo (1981) 2 NSWLR 253 Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49 Wilson v Kochate Pty Limited t/as Caradon Ski Park [2003] NSWCA 25

Elias David Perez PARTIES: Instant Access Australia Pty Limited Hastie Australia Pty Limited

Plaintff: K Andrews COUNSEL: First Defendant: G Gregg Second Defendant: M Stevens

Plaintff: Keddies Solicitors SOLICITORS: First Defendant: DLA Phillips Fox Second Defendant: Boyd House & Partners

HER HONOUR: The defendants in these proceedings by way of notices of motion seek the following relief:

(a) that the plaintiff's claim against each of them be dismissed pursuant to s 50C Limitation Act 1969; (b) further and in the alternative the claim be dismissed pursuant to s 61 Civil Procedure Act 2005 and r 13.4(1) Uniform Civil Procedure Rules 2005. (c) in addition orders are sought as to costs and such order as the court may deem fit.

The plaintiff by way of statement of claim firstly commenced proceedings, in the District Court at Liverpool (Proceedings No. 24 of 2006) in relation to his former employer and then, parallel with those proceedings, commenced these proceedings by way of statement of claim filed on 26 June 2007. That statement of claim sets out the following particulars against the first and second defendants: "8. The abovementioned injury, loss and damage was caused by the negligence of the first and/or second defendant. Particulars of negligence: (a) failure to properly erect the said scaffolding. (b) failure to ensure that all components of the said scaffolding were appropriate fastened. (c) failure to properly inspect the said scaffolding. (d) failure to carry out the appropriate inspections of the said scaffolding before allowing any person to use the said scaffolding. (e) failure to ensure that the said scaffolding was fit for the purpose for which it was required. (f) allowing the plaintiff to use the said scaffolding before appropriate inspections had been taken by the first and/or second defendant... 10. The plaintiff first became aware of the identity of the first and/or second defendant and/or the fact that his injury, loss and damage was caused by the fault of the first and/or second defendant on or about 29 June 2004."

Having set out the pleadings I now briefly describe the cause of action. The plaintiff was on the second defendant's premises at 110 Pitt Street on or about 11 April 2003.

STEVENS: Your Honour, I don't think it was our premises. We happened to be a subcontractor. I'm loath to interrupt your Honour but I don't think it's pleaded that it was our premises.

HER HONOUR: The plaintiff in the statement of claim filed in these proceedings recites in paragraph 3 that on or about 11 April 2003 the plaintiff attended upon the second defendant's premises at 110 Pitt Street, Sydney. I note that the second defendant's counsel has leapt to his feet to say that this is not the case but that is what is pleaded. It is asserted in paragraph 4 of the statement of claim that at all material times the second defendant was the owner and/or occupier and/or head contractor and/or head supervisor of the premises and that at all material times the first defendant had provided scaffolding upon the premises. On 11 April the plaintiff was required to access part of the said premises by way of scaffolding and it was while he was on the scaffolding that he had the accident that is described in more detail in the statement he gave to his solicitors which is an annexure to the affidavit of Catherine Dennyse Lawrence. I will set out this description in full: "On 11 April 2003 at about 9am I was working at a building site at 110 Pitt Street with Jose Lopez. I was directed to go to this work site by John Sapperella who told me because we had to put on a damper support and spray with vermiculite. John told me that the air-conditioning contractors had arranged for scaffolding and that that would be in place for me when I got there. I think the builders at the site were Baulderstone Hornibrook but I had no dealings with them. A week before that I had been to that site when the builders arranged for my induction of the building site and I remember Baulderstone Hornibrook and the person in charge of the induction was named George. When I was at the induction the scaffolding was not there. Jose was at the induction with me but not John and no one else from my company was there. One day after the induction John showed me this building site and pointed to the floor that I would be working on and said that as soon as the scaffolding was ready he would let me know. A couple of days before my injury he told me that I had to do this job with Jose. We arrived at the building site at about 7.30-8am and I had to take materials up to the fourth floor. There was scaffolding on the side of the building and scaffolding inside on the fourth floor. I do not know who put the scaffolding up but John told me the scaffolding would be there. John apparently did not inspect this site before I went there. John told me this later on.

I had to climb up the scaffolding to get to the first floor and then step across that scaffolding on to other scaffolding. Where I had to step from one set of scaffold to the other there was a horizontal gap of about thirty centimetres and a vertical differential of about thirty centimetres also. I had to do this whilst carrying a steel plate about 40 x 50cms. After I got up there and took some measurements I had to go down and get my tools. I started to climb down and when I got to the gap between the scaffolding I put my left hand out to hold onto the scaffolding I was stepping off and reached across with my right hand to the other scaffolding and put my right foot out but just as I did this the bar that I was holding with my right hand came away from its clamp. This caused me to lose my balance and to fall to my right and I ended up falling three storeys to the ground, a distance which was later measured as 3.5 metres. I think I hit my right forearm on the way down."

I pause here to interpolate there is a handwritten note added to this paragraph which says: "John told me the WorkCover fined him for not checking scaffolding."

Returning to the statement, I note that the plaintiff then recited how he went to a Sydney hospital where he was X-rayed and found a fracture in the middle of his back and his boss told him to go and see Dr Simmons, the company doctor in Alexandria. He had continued under the care of Dr Simmons who had referred him to another doctor. The plaintiff in his statement then set out what his problems were and said he returned to part-time light duties but he was having problems. He said that currently he was being paid the amount of $730 per week, which was about $500 to $600 less than his average earnings before the injury and that it had been explained to him that eventually if he could not get back to regular work with the company that might be the maximum he would get paid.

He went on to give the following the instructions to his solicitor: "Accordingly, I would like Mr Rimes to advise me about whether I can recover these lost earnings in the future by taking legal action against the company for negligence."

This statement is dated 20 August 2003. Those then are the circumstances in which the plaintiff set out in his statement how he suffered his injury.

The clinical notes indicate that on 16 April 2003 the plaintiff's treating doctor, Dr Gock, received: "A visit from the director of the company allegedly saying the height of fall was 3.5 metres instead of 6 metres."

It is indicated in the clinical notes that this was discussed with the plaintiff and some kind of WorkCover documents were amended. In addition the clinical notes refer to a photocopy of the scaffold inspection certificate being enclosed. The clinical notes include a copy of the scaffold handover/inspection certificate bearing the names of both defendants as well as the full contact details for one of them. I note there is a concession made by the defendants that that does not establish that the plaintiff thereby knew that this was actually the case.

GREIG: No, I didn't make that concession. Your Honour, I made a concession about Exhibit C, which was the handwritten note about the company director company coming. In respect of Exhibit C to Annexure C the discussion about the height, that that was insufficient for me to be able to rely upon that alone to make out that…

HER HONOUR: There is a concession that this is not enough to rely upon alone, however, great emphasis is placed upon other annexures and it is relevant as part of the totality of the evidence. The clinical notes of Sydney Hospital were obtained by Mr Rimes on or about 4 September 2003 and they were served with a statement of particulars in relation to the proceedings at the Liverpool District Court in relation to the proceedings the plaintiff commenced against his employer. In addition I note that there are documents under subpoena by Hastie Australia Pty Ltd and Baulderstone Hornibrook produced in answer to subpoenas from the plaintiff indicating that the plaintiff participated in an investigation after the accident.

The proceedings at Liverpool District Court were commenced on 28 March 2006 and cross-claims were filed on 21 March 2007 which sought to join Instant Access, the first defendant in these proceedings and Hastie, the second defendant in these proceedings, as cross-defendants. On 14 May 2007 a solicitor for the plaintiff wrote to both cross-defendants and it is asserted that this letter acknowledges that the proceedings are out of time. The text of that letter speaks for itself. The defendants each wrote back correspondence. The letter from Phillips Fox of 29 May 2007 very helpfully sets out the precise information relied upon by the first defendant and the second defendant, although writing a separate letter, has largely adopted the Phillips Fox letter.

I note that the second defendant has read an Affidavit of Michael Childs of 2 August 2007 which contains that correspondence. Both defendants have principally relied upon the material that is attached to the affidavit of Catherine Dennyse Lawrence.

I am required for the purposes of this application to determine whether the plaintiff knew or ought to have known of each of the facts set out in s 50D Limitation Act 1969. The text of s 50D deals with the question of the date on which a cause of action is discoverable. Sidis J in Antonini v SRA (No 2) [2006] NSWDC 133 summarised these provisions as being the fact that the injury had occurred, the fact that the injury was caused by the fault of the defendant and the fact that the injury was sufficiently serious to justify the bringing of the cause of action. In Antonini v SRA (No 2) both the second and third of these three elements were the subject of dispute. In the present case, as I understand it, it is not asserted that the injury was not sufficiently serious to justify the bringing of an action or a cause of action. Accordingly, the question is whether or not the plaintiff knew or ought to have known of the fact that the injury was caused by the fault of the defendant.

Section 50D(2) provides: "A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact."

Section 50D(3) notes that: "In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person."

The ambit of ss 50C and 50D has been helpfully explained by her Honour Sidis J in Antonini v SRA (No 2). The facts in that case were that the plaintiff fell over or tripped on a railway station when she was leaving a train. It would appear that the plaintiff believed at the outset that her injury was caused by the fault of the State Rail Authority. There was correspondence among the papers of the State Rail Authority which raised the suggestion that the plaintiff in fact tripped when she was leaving the train in question.

Sidis J was not prepared to accept that the belief of an elderly passenger as to fault established that she knew as a discoverable fact that the State Rail Authority was at fault by 11 August 2003.

I pause to note here that it has been very properly conceded by the defendants that they do not assert actual knowledge by the plaintiff. What they assert is constructive knowledge and in particular constructive knowledge by the solicitor.

Her Honour's judgment deals with the constructive knowledge of the solicitor as to the third matter (whether the cause of action reached the threshold) but not really as to the second matter, namely the identity of the likely tortfeasor. However it is impliedly the case, from what her Honour has to say at [15] or [16], that it is not only that the plaintiff did not know but that the plaintiff was not in a position where she ought to have known.

Essentially what the defendants contend is that any sensible solicitor, reading the plaintiff's statement (the text of which is set out above) ought to have known that the plaintiff could only have suffered this accident, or was most likely to have suffered this accident, by reason of negligence which would include negligence in the construction of the scaffolding. It was put to me that since the scaffolding had been certified, i.e. inspected, only the day before the accident, that the most likely explanation for the plaintiff's fall was that the scaffolding was in this faulty condition in the twenty-four or forty-eight hours beforehand when it was inspected. I say twenty-four to forty-eight hours because it is quite possible the certificate of inspection was issued one day and the inspection might have occurred perhaps a matter of hours or days beforehand.

If anything, the fact that the scaffolding was inspected the day before the accident to my mind would indicate that there is some likelihood that the scaffolding was in fact in reasonable and proper order the day before the accident. The very nature of scaffolding is that it is a temporary structure and it is constantly being raised and lowered by workmen for the purpose of performing their work.

The question of negligence by the first defendant in the construction of the scaffolding is a matter which, it is asserted by the first defendant, the plaintiff's solicitor ought to have known had he taken reasonable steps to ascertain the fact.

There are two matters that I need to consider. The first is whether or not the knowledge of the solicitor, assuming what is put to me is correct, is something that the plaintiff can be taken to have known by reason of the fact that the solicitor ought to have known. Mr Andrews has taken me to Telstra Corporation Limited v Albert John Rea [2002] NSWCA 49 where the Court of Appeal has dealt at [99] - [102] and [120] with the difference between constructive and actual knowledge: "[99] Hutley JA in Ford Excavations v Do Carmo (1981) 2 NSWLR 253 at 267 in relation to the then Limitation Act stated: "Where a solicitor acting for a client obtains knowledge or has knowledge as part of his general fitness to advise the client of the material facts relating to his client's cause of action, those facts are, in my opinion, part of the actual knowledge of the client."

[100] This issue was reconsidered on appeal to the High Court in Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234, where Wilson J referred to this opinion and stated at 249: "With all respect, I would wish to reserve my opinion on that question because it seems to me there may be a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply."

[101] Dawson J (with whom Brennan J agreed) stated at 259: "It is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man. And s57(1)(e) provides that a fact is outside his means of knowledge if he does not know it and he has taken reasonable steps to ascertain it. The remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC, at p530, made in reference to a similarly worded provision, are to the point:

'In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with 'the reasonable man'. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.'

It is also to be noted that it does not matter what advice the appellant received. In fact he sought advice and it would appear, did not receive the advice which he ought to have been given. However, s58(2), unlike s57(1)(c) makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense."

[102] The position was made quite clear in relation to the current Act as a result of Spadotto . In that case, Priestley JA held that s60I(1)(a) referred to matters which the plaintiff himself or herself does not actually know or is not actually aware of and that there is no suggestion that the sub-section was intended to convey the meaning of "the plaintiff whether by himself or his agent".

… [120] Additionally, having had the benefit of reading the draft judgment of Foster AJA I am in full agreement with His Honour's reasoning in relation to the proper construction of s60I(1)(b). In short: • The passages extracted from the judgments of Hutley JA and Dawson J in Ford Excavations v Do Carmo both at first instance and before the High Court in relation to s58(2) of the Act empowering the Court to extend an applicable limitation period, indicated in relation to that section that the knowledge of an advising solicitor was not in their Honours view, capable of being imputed, without more , to the applicant. If the solicitor had the relevant knowledge but failed to impart it to the plaintiff, it did not become the knowledge of the plaintiff. • The same result is arrived at by parity of reasoning in relation to s60I(1)(a)(iii) and s60I(1)(b). The relevant authorities that hold that s60I(a) is concerned with the plaintiff's actual and personal knowledge (or lack of it) of the matters referred to in the section and clearly demonstrate that s60I(a) is not concerned with the plaintiff's imputed knowledge nor his or her constructive knowledge of those matters. As earlier indicated, in arriving at this construction, the courts have found assistance in the fact that a clear distinction is drawn between the wording of s60I(1)(a) and s60I(1)(b) where the constructive knowledge of the plaintiff is plainly referred to. • In the same way as subsection 60I(b) has been called in aid of the construction of s60I(1)(a), the earlier sub-section can assist in the construction of the latter. S60F, s60G and s60I are in general concerned with alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. Critically, it is the actual position of the plaintiff having regard to his or her personal state of knowledge, which is the subject of the first subsection of s60I(1). Although the second subsection cannot relate to the imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. But that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff . This is what Priestley JA was referring to in the passage in Spadotto where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware". See also Smith v Central Asbestos Co [1973] AC 518 at 530 where Lord Reid put the matter as follows: "In order to avoid constructive knowledge the plaintiff must have taken all such action as was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience" • The relevant question for the trial judge in relation to s60I(1)(b) was therefore whether the plaintiff himself (not the hypothetical reasonable person), having no actual knowledge of the documents should have become aware of the existence and relevance of the documents by making the relevant inquiries. • In circumstances where the solicitor was found not to have imparted this information to the plaintiff, there was no rational basis for further inquiry on his part. • The trial judge was therefore correct in holding that the plaintiff had no relevant constructive (or actual) knowledge of the matters before consulting with his barrister and that the plaintiff had therefore brought himself with in s60I(1)(b) (as well as s60I(1)(a)(iii))."

Even if it was the case that a solicitor ought to know and ought to have taken all reasonable steps, I am not satisfied from the material before me that the solicitor ought to have known from reading the plaintiff's description that it was the case that he should bring proceedings against the first defendant, particularly in circumstances where the scaffolding had recently been inspected and found to be satisfactory and in circumstances where the person who it appears had been fined by WorkCover for failure to inspect was in fact the plaintiff's employer. The case is even less clear for the second defendant and indeed it is hard for me to see what it is that the plaintiff knew or ought to have known in relation to the second defendant in relation to its capacity as occupier. Essentially the plaintiff seems to have had little more information than the identity of this company, which does not contain such useful information as the ACN number or the address. But be that as it may, whatever the plaintiff had it was in my view not information that the solicitor ought to have known.

However, the fact of the matter is that it is not sufficient for the defendants to point to a party's solicitor as someone who ought to have known as sufficient for the information to be discoverable. This is because the section sets out, as Mr Andrews points out and I accept, that the section provides that a person ought to know if that person had taken all reasonable steps. What did the plaintiff do? What the plaintiff did was precisely what the Court of Appeal referred to in [120] of Telstra Corporation Limited v Albert John Rea, in he took such reasonable steps as was necessary for him to find out. He consulted a solicitor and he gave that solicitor specific instructions. That is sufficient to comply with s 50D.

I note in passing the comments by Dawson J in Do Carmo v Ford Excavations that we expect less from members of the public, especially relatively uneducated members of the public, than we do from lawyers. Where a person consults a solicitor and places the relevant information in question in their hands and relies upon that person to find out, particularly in circumstances where the plaintiff presents his own view that his own employer must have been negligent, how can it be said that the plaintiff by reason of the constructive knowledge of a solicitor who ought to have made some inquiries has knowledge of the identity of the wrongdoer?

This is not a case where on the facts before me it can be said, as McColl J said in Wilson v Kochate Pty Limited t/as Caradon Ski Park [2003] NSWCA 25 at 64, that the negligence in not making such an inquiry was gross carelessness or a blatant disregard of the rules of the court or anything of that sort. This is a situation where there was real uncertainty as to how it came about that this clamp-on scaffolding gave way in circumstances where there were many explanations at least one of which seems to have been whatever persuaded WorkCover to fine the plaintiff's employer.

Where accidents occur on building sites where there are multiple potential defendants it is often the case that there is uncertainty as to who is responsible. This is one such case. It is a disputed issue of fact for the trial whether this scaffolding was in fact negligently constructed or whether, as is at least equally likely, the scaffolding was perfectly ably constructed and somebody, perhaps an employee of the second defendant or perhaps a fellow employee of the plaintiff or some third party, was doing work and loosened the clamp. I do not know. But to say of a plaintiff or his solicitor that they ought to have known in the circumstances of the facts of this case in my view is to overstate the burden that is placed on plaintiffs by this section of the Limitation Act. This section is designed to ensure that proceedings are commenced in circumstances where a person knew or ought to have known by taking all reasonable steps. It is designed to ensure that plaintiffs consult solicitors and place all relevant information in their possession so that solicitors can commence proceedings expeditiously and the matter be heard promptly. That is what the plaintiff did.

Accordingly, I dismiss this portion of the notion of motion.

The second prayer for relief that is sought is pursuant to r13.4 that these proceedings be dismissed as an abuse of process because there are concurrent proceedings.

Where proceedings have been started in the one court or indeed in different courts seeking identical relief against different defendants, it may constitute an abuse of process of the court for there to be multiple proceedings where there is a complete remedy available in the court where the proceedings were first started. Both proceedings are now in this court and a notice of motion is before the court although not yet filed for these proceedings to be consolidated. Mr Andrews has told me from the bar table that the defendant in the other proceedings is represented by Gillis Delaney and they have indicated that they would consent to the consolidation of proceedings. By reason of the late service of the notice of motion the defendants in these proceedings are not really in a position to put their submissions to me. However, I note the very proper concession by the defendants that in these circumstances it is not appropriate that an order be made today since it really is a matter for another day to determine whether the application for consolidation, which is consented to by the parties in the other proceedings but which may or may not be opposed by the defendants in these proceedings, is an order that should be made and accordingly it is not appropriate that I deal today with the proceedings for the abuse of process.

I have not been addressed as to whether or not I should dismiss the motion or stand it over generally. It seems to me in the interests of saving costs it is appropriate to stand over generally that portion of the notice of motion. It has been submitted to me that this is relevant in relation to costs. The principal issue that was before me today was the application for summary relief in relation to the limitation argument and that has taken about nine-tenths of the time. It seems to me that I should make a costs order conformably with the costs order made by her Honour Sidis J in Antonini v SRA (No 2) in relation to the limitation argument and that I should reserve the costs of the application for consolidation so that the judge who hears that application, who no doubt would have more information, can deal with that issue. Accordingly the orders I make are as follows:

1. First defendant granted leave to withdraw paragraph 1.2 of the first defendant's Notice of Motion.
2. Second defendant granted leave to withdraw paragraph 1 of the second defendant's Notice of Motion and add a claim for relief under s 60C Limitation Act 1969.
3. The defendants' application for these proceedings to be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules is stood over generally with liberty to apply.
4. Defendants' application to dismiss or strike out the Statement of Claim is dismissed.
5. Defendants are to pay the plaintiff's costs in relation to the ss 50C and 50D Limitation Act 1969 application.
6. Costs of the r 13.4 argument reserved.
7. Exhibits retained for 28 days.
8. The plaintiff is granted leave to file a Notice of Motion for consolidation in the registry.
9. This matter is returnable before Judicial Registrar McDonald on 20 September 2007 for further orders in relation to the r 13.4 relief sought in the Notice of Motion and these proceedings generally.
10. Proceedings in file number 12 of 2007 are to be listed before Judicial Registrar McDonald on the same date.
11. Plaintiff is to notify Gillis Delaney of these dates.

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