Evans v Pacific National

Civil Procedure Act 2005 LEGISLATION CITED: Freight Rail Corporation (Sale) Act 2001 Limitation Act 1969 Uniform Civil Procedure Rules 2005

Commonwealth v McLean (1996) 41 NSWLR 389 CSR Ltd v Rendell, NSWCA, unreported, 7 August 1996 CASES CITED: JX v GX & Ors [2006] NSWCA 167 McGloin v Magaan [2005] NSWCA 358 State of NSW v Moss [2000] NSWCA 133

PARTIES: Darryl Evans (Plaintiff) Pacific National (NSW) Pty Ltd, formerly Asciano Pty Ltd t/as Freight Corp (Defendant)

COUNSEL: Mr F Toscano (Plaintiff) Mr DT Tallintyre (Defendant)

SOLICITORS: Hunt Leitch Hasson and Dent (Plaintiff) Piper Alderman (Defendant)

1. The plaintiff, Mr Evans, proceeds upon a summons and a notice of motion that were respectively filed on 28 September 2009 and 3 December 2009. The parties were given leave to file written submissions, the last of which was received on 15 March 2010. These interlocutory proceedings raise limitation and joinder issues by which the plaintiff seeks leave to proceed.

2. Four issues arise in these interlocutory proceedings: Issue 1 : Whether Afciano Pty Ltd has been mistakenly joined as a party to the proceedings instead of Asciano Pty Ltd.

Issue 2 : Whether Pacific National (NSW) Pty Ltd, the successor of Asciano Pty Ltd, should be joined as a defendant pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 and whether Asciano Pty Ltd should be removed pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005.

Issue 3 : Whether the plaintiff should be granted leave pursuant to either s 60C or s 60G of the Limitation Act 1969 to proceed and to continue the current proceedings that were filed on 18 June 2009.

Issue 4 : If the plaintiff were given leave to proceed would the defendant suffer significant prejudice.

On 18 June 2009, the plaintiff, commenced proceedings claiming damages against the presently named defendant, Afciano Pty Ltd trading as Freight Corp. In the course of the interlocutory processes of those proceedings it has become apparent that there was a misdescription by a misspelling of the name of the defendant in that the statement of claim named Afciano Pty Ltd, which is a non-existent entity, instead of correctly naming Asciano Pty Ltd. The plaintiff now seeks to correct that error.

At about 4.00pm on Tuesday 31 July 2001 the plaintiff was engaged in the course of his employment with Rail Infrastructure Corporation. On that day his work involved the maintenance and inspection of railway tracks. For this purpose he was driving a rail modified Toyota Dyna High Rail motor vehicle on a section of railway line near Beckton, NSW, on the Ariah Park to Ardlethan section of railway tracks. At that time, a wheat train was being driven by an employee of Freight Rail Corporation on the same rail tracks when that train collided head-on with the plaintiff's vehicle.

Immediately before the collision, on realising that a collision was about to occur, the plaintiff managed to successfully alight from the truck he had been driving. He did so without suffering any apparent physical injury. The plaintiff makes a claim that in these events, which involved a heavy and noisy impact that occurred in his near vicinity, he suffered a significant shock and a psychological injury. He claims that over time following these events, the extent of the consequences of such psychological injury, which was not initially appreciated by him, gradually increased in its severity and impact upon him. In the result, he now claims that the incident has adversely affected his psychological wellbeing and it has also impaired his capacity to continue in full and unrestricted employment.

After participating in his employer's investigation that followed the incident, the plaintiff was due to return to his normal track maintenance duties but claimed he felt unwell and sought medical treatment. His symptoms were nightmares, difficulty sleeping and feeling agitated and fearful of going back to work at his normal duties. Apart from some initial treatment from his general practitioner, Dr Lehman, whom he saw on about 3 occasions, initially prescribed the plaintiff some medication, and after some initial counselling from a psychologist, Dr Sowden, arranged by the employer and aimed at getting the plaintiff back to work, the plaintiff did not seek out any further treatment until 2008. The plaintiff resumed work after some weeks of absence and then continued to work despite increasing but fluctuating psychological symptoms to varying degrees, over the period between 2001 and until 30 June 2008. In June 2008 the plaintiff accepted a redundancy payment.

In early July 2008, the plaintiff saw his general practitioner again and told him he was experiencing problems. Thereafter the plaintiff took the prescribed medication Seraltrine for about 7 months and appeared to be able to cope with his new found employment as a truck driver. He ceased taking the medication because he felt it was not safe to continue to take it whilst driving. He then continued to suffer flashbacks.

He said that by 2008 he gradually came to realise that the psychological problems he was experiencing were worsening in their intensity and were significantly and adversely impacting upon his ability to cope with his work. In the period up until 2008 the plaintiff had been resorting to the consumption of alcohol in order to alleviate the problems he was experiencing.

On 8 September 2008, and at a time when his claim was already statute barred, the plaintiff consulted his solicitor concerning these events. His solicitor made enquiries to establish the correct naming of the proposed defendant to the proceedings he was contemplating on the plaintiff's behalf, albeit that such proceedings were by then out of time.

On 5 March 2009 the plaintiff consulted Dr Manuela Habicht, a clinical psychologist. This was the first time it was suggested to him that his experience of flashbacks, problems with temper control, restlessness, tension, insomnia and depression, which were by then affecting him, were as a result of his work accident in 2001.

His solicitors commenced making enquiries concerning the matter and then commenced proceedings on 18 June 2009. In doing so, an error arose as to the correct naming of the defendant.

This occurred because, in the course of a telephone enquiry made by the plaintiff's solicitor of the defendant, the plaintiff's solicitor was told, or had incorrectly noted, that the correct defendant was named Afciano Pty Ltd, which was why the defendant's name was misspelled in the statement of claim.

It is common ground between the parties that the correct defendant was Freight Rail Corporation or Freight Corp. The evidence discloses that over the course of time that corporation was the subject of a series of sale transfers that were enabled by legislation. By that process Freight Corp purchased the business assets and the liabilities of Freight Rail Corporation : Freight Rail Corporation (Sale) Act 2001.

It is also common ground that Freight Rail Corporation has been dissolved as a legal entity and that the successor of its liabilities is Pacific National (NSW) Pty Ltd. The defendant concedes that Pacific National (NSW) Pty Ltd is the correct defendant but that entity objects to the joinder.

The error as to the correct naming of the defendant became known to the plaintiff following a disclosure by the defendant's legal representatives at a pre-trial conference before the Judicial Registrar in this Court on 26 August 2009. At that time an order was made for any application concerning any interlocutory issues that consequently arose should proceed by way of notice of motion.

It was by this pathway that the current interlocutory issues arise for determination.

There was no substantial dispute concerning the chronology of relevant events regarding the history of the plaintiff and these are outlined as follows:

The plaintiff left school at the end of Year 10 when aged 16 years. At that time he commenced employment with State Rail. He had a steady and continuous work history that continued up until the time of the incident in question. Over the course of that employment the plaintiff was not aware of the fact of, or timing of, changes to the naming or corporate constitution of the various names of his employer that had changed over the years.

After the occurrence of the incident on 31 July 2001, the plaintiff remained on duty to initially assist in the investigation of the incident. He was not rostered onto normal duties during that time. Thereafter he was under the care of his general practitioner Dr Lehman for a short time and received some psychological counselling from Dr Sowden for some weeks. He was off work for 6 weeks on workers' compensation leave.

By 26 September 2001 the employer's investigation had concluded.

Although when the plaintiff returned to work from leave and although he remained in the same employment, he avoided carrying out track work wherever possible until about March 2002, when he recommenced to carry out some track work.

In 2005 the plaintiff began to re-experience symptoms of flashbacks. By late 2007/early 2008 he was experiencing difficulties carrying out track work duties. In 2008 his employer was requiring him to carry out an increasing level of track work, some 3 days per week for 6 hours per day. In this time his experience of flashbacks, nightmares and sleeping difficulties increased.

On 30 June 2008 the plaintiff ceased his employment with State Rail after taking the opportunity of accepting a redundancy. On 1 July 2008 he commenced a short period of employment as a driver for Compass Group Australia Pty Ltd, a contractor at the Kapooka Army Base. In September 2008 he commenced duties as a driver for Neverfail Spring Water. In December 2008 he commenced working for a credit union.

In this period, on 8 September 2009 the plaintiff first consulted his solicitor for advice in connection with this matter.

On 5 March 2009, when the plaintiff saw Dr Habicht, she diagnosed him as suffering from Post Traumatic Stress Syndrome due to the work accident in question.

The plaintiff's account of the relevant events seems broadly consistent with the factual content of the report of Dr Habicht and, in the context of evolution of his claimed psychological conditions, does not seem improbable or unlikely.

In this chronology, the plaintiff argues that there is scope for him to claim that he has incurred a loss of earning capacity.

On 19 November 2009 the solicitor for the defendant wrote to the solicitor for the plaintiff advising that Pacific National (NSW) Pty Ltd is now the legal entity for any liabilities arising from the operation of the train following the purchase of the freight rail business in 2002.

The following affidavits were read by the plaintiff in the application: (a) The affidavit of the plaintiff, Darryl Evans, sworn on 25 September 2009, which incorporated extensive annexures;

(b) The affidavit of the plaintiff, Darryl Evans, sworn on 11 December 2009;

(c) The affidavit of the plaintiff's solicitor, Miles Hunt, sworn on 25 September 2009;

(d) The affidavit of the plaintiff's solicitor, Miles Hunt, sworn on 3 December 2009.

The plaintiff was cross-examined on his affidavits. Mr Hunt was not cross-examined on his affidavits. In these interlocutory proceedings there can therefore be no contest that the plaintiff's solicitor was erroneously provided with the name Afciano Pty Ltd as has been claimed.

In essence, the plaintiff's evidence was that he did not appreciate the significance of his increasing psychological problems. He gave me the impression that by resorting to significant alcohol consumption between 2001 and 2008, he had pressed on with his work in a stoic manner albeit that it took a cumulative toll on him until he could no longer cope and required medical assistance. In my view his evidence in that regard was not improbable or far-fetched.

The claim form regarding the incident had attached to it a medical certificate completed by Dr Lehman on 21 August 2008. Dr Lehman certified the plaintiff to be suffering from depression and anxiety, and recommended rest time away from work and counselling. The counselling report from Dr Sowden clearly shows this counselling was aimed at assisting the plaintiff to return to work. A gradual return to work was planned. The plaintiff's history of psychological problems since then have been comprehensively documented and analysed in the unchallenged opinion dated 15 March 2009 from Dr Habicht.

Dr Habicht diagnosed the plaintiff as having a Major Depressive Disorder according to the DSMIV criteria, including a chronic Post Traumatic Stress Disorder. Her opinion was that the plaintiff was fit for limited employment but not his pre-injury duties. The plaintiff's condition was considered not to have stabilised. She noted that the plaintiff's anxiety levels did not permit him to carry out his pre-injury duties. She noted the plaintiff's prognosis to be guarded.

The defendant submits that in his evidence, the plaintiff made an unconvincing attempt to make light of the symptoms he experienced in the early years following the incident. The defendant further submitted that the plaintiff's evidence should not be accepted as it was directed at manipulating the facts to suit his pursuit of the limitation remedy now sought. The defendant submitted that the plaintiff had exaggerated the impact of the relevant events upon him and with full knowledge of the consequences, the plaintiff had made a conscious decision to delay the commencement of these proceedings. Those assertions were not supported by the evidence and were denied by the plaintiff. I do not accept these submissions.

During oral argument I indicated my impression of the plaintiff's testimony as having been given in a straightforward and truthful, albeit laconic manner. There was nothing in my review of the evidence of the plaintiff that caused me to doubt the credibility of his testimony. I accept the plaintiff's denials of the matters put to him in cross-examination, as summarised in the preceding paragraph. In my view the plaintiff gave credible and truthful testimony on the issues calling for decision and I accept his evidence in this regard.

In the paragraphs that follow I set out my consideration of the issues calling for decision in these interlocutory proceedings.

Issue 1 - Has Afciano Pty Ltd been mistakenly joined as a party to the proceedings?

The plaintiff claims that Afciano Pty Ltd has been mistakenly joined to the proceedings instead of Asciano Pty Ltd.

Section 64 of the Civil Procedure Act 2005 provides: " 64 Amendment of documents generally

(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate." [Emphasis added]

In purported answer to the plaintiff's submission concerning mistaken joinder, the defendant claims that any such mistake arose in relation to the identification of the entity sued, not the name of the defendant.

In my view the evidence clearly discloses that the plaintiff's solicitor was either mistakenly informed of, or had mistakenly noted, the name of the defendant as Afciano Pty Ltd rather than Asciano Pty Ltd. Whilst this mistake may have resulted in a non-existent entity being joined, in my view, the fact remains, that there was "a mistake in the name of a party" within the meaning of s 64(4) of the Civil Procedure Act 2005.

In answer to the defendant's submissions, the plaintiff points out that the mistake in question emanated from the defendant and it was relied upon by the solicitor for the plaintiff. However, this case is not concerned with the issue of whether or not the solicitor for the plaintiff ought to have made his own confirmatory enquiries to validate the information obtained from the defendant. In the circumstances, I consider it just and reasonable for the mistake so arising in respect of the mistaken naming of the defendant to be corrected. I consider it is appropriate to do so by amendment pursuant to the power provided by s 64 of the Civil Procedure Act 2005 in order to correct the defect so arising.

Issue 2 - Should Pacific National (NSW) Pty Ltd be joined?

There is no dispute that Pacific National (NSW) Pty Ltd is now the correct entity to be sued as the successor of the liabilities of Freight Rail Corporation when that organisation was sold to Pacific National (NSW) Pty Ltd.

In these circumstances I consider that in the interests of determining the true questions raised between the parties, the defect arising in the proceedings by reason of the mistaken naming of the defendant should be rectified by means of the joinder of Pacific National (NSW) Pty Ltd in order to avoid a multiplicity of proceedings : ss 58 and 64(2) of the Civil Procedure Act 2005.

This conclusion raises the issue of whether or not the plaintiff should be given leave to proceed by reason of the limitation questions that arise.

Issue 3 - Should leave be granted under s 60C or s 60G of the Act?

A question arises as to the appropriate statutory framework for the claimed limitation relief in the circumstances of this case.

In my view, the circumstances of this case raise for consideration the potential for limitation relief to be claimed under s 60G of the Limitation Act 1969. This is so because the limitation relief sought is for a period in excess of 5 years. For that reason, I consider that a claim for relief under s 60C of that Act is inappropriate : s 60C(2).

On behalf of the plaintiff it was submitted that it is doubtful that the plaintiff could have pursued any course of action until he had suffered significant damage. The plaintiff was paid workers' compensation for his initial time off and was not himself out-of-pocket. Although he experienced symptoms, he continued to work and there was no psychiatric diagnosis until he saw Dr Habicht. That diagnosis was given because his symptoms continued, albeit fluctuating over time. It was the diagnosis that led the plaintiff to make a claim that he had a cause of action. The defendant's submission to the effect that the plaintiff was aware of his symptoms during the running of the limitation period ignores the fact that it was the continuity of symptoms over time, as analysed by Dr Habicht, that led to the diagnosis and realisation that he may have had a claim : Commonwealth v McLean (1996) 41 NSWLR 389. In my view the plaintiff's submission in that regard is correct.

The onus is on the plaintiff to show that it would be just and reasonable for the discretion conferred by s 60G(2) of the Limitation Act 1969 to be exercised in his favour. In opposing the relief sought the defendant points to a tract of cross-examination in which the plaintiff agreed with much of what had been put to him concerning his awareness of some of his symptoms over time.

In my view the position adopted by the defendant in placing emphasis on that evidence fails to recognise the significance of the fact that it was not until the plaintiff accepted a redundancy and had later obtained a diagnosis of his condition, that he realised he had a claim that could have been pursued. The defendant submitted that the plaintiff's claim represents a cynical exercise that he had only embarked upon after the opportunity for a redundancy payment arose. I do not accept that submission for it does not coincide with my assessment of the plaintiff's truthful and genuine presentation.

The defendant has argued that for the reasons outlined in JX v GX & Ors [2006] NSWCA 167, the plaintiff ought to be refused leave in this case. I do not accept that submission because, unlike the position in JX (where it was noted that the plaintiff was fully aware of his symptoms and was receiving counselling over a period of time, [10] per Handley JA), in this case the plaintiff only obtained a diagnosis and only became aware of the extent of his problem when Post Traumatic Stress Disorder was diagnosed by Dr Habicht in 2009. Before that time he was unaware of the extent of the injury he had suffered in the incident.

Whilst in some cases, such as McGloin v Magaan [2005] NSWCA 358 where the requisite unawareness is not dependent on the condition in question being made known through the advent of a medical or similar opinion, as stated by Handley JA at [76] in that case, in this case, the plaintiff was not receiving active treatment over time, he was continuing to work, and he was not aware that the extent of his problem amounted to a psychiatric diagnosis : s 60I(1)(a)(ii) of the Limitation Act 1969.

I find that the delayed timing of the plaintiff's claim arose as a result of the earlier non-diagnosis of the plaintiff's psychological condition. This was a direct consequence of the plaintiff's stoic efforts at continuing with his work despite his recurring and fluctuating symptoms, thus deferring the opportunity for an earlier diagnosis as well as an earlier opportunity to make a claim. The plaintiff's efforts at maintaining his employment between 2001 and 2008 constituted more than reasonable efforts at maintaining mitigation of a potential loss in the face of debilitating psychological symptoms.

In my view it would be unconscionable in such circumstances to refuse the plaintiff leave to proceed. I therefore consider that it would be just and reasonable that discretion should be exercised to extend the limitation period to grant leave to the plaintiff to proceed with his claim notwithstanding that it was filed out of time.

Once the seriousness of the plaintiff's condition became know to him, he reacted reasonably promptly. He consulted his solicitor who took steps by which he sought to have revealed to him the correct name of the proposed defendant so that a claim could be pursued on the plaintiff's behalf. The delay that arose whilst the solicitor made enquiries and took the steps he pursued to advance the matter are not significant in my view.

With regard to the considerations relevant to the exercise of discretion, this is not a case where the plaintiff's entitlement to damages is speculative and uncertain so as to contraindicate the exercise of discretion : CSR Ltd v Rendell, NSWCA, unreported, 7 August 1996. It appears that if the plaintiff were to be successful in his claim, he would at least be entitled to an economic buffer for future impairment of earning capacity : State of NSW v Moss [2000] NSWCA 133. In my view, this analysis serves to confirm the justness and reasonableness for the making of an order giving the plaintiff leave to proceed.

In my view, for the foregoing reasons, the plaintiff has satisfied the criteria for the grant of an extension of time under s 60G and, for that matter, if indeed it had applied, s 60C, of the Limitation Act 1969.

Issue 4 - If the relief sought were to be granted would significant prejudice arise?

The evidence discloses that the incident in question has been the subject of a comprehensive liability investigation by the plaintiff's employer. The plaintiff participated in that investigation. The result of that investigation showed that the train in question that had struck the plaintiff's vehicle did so because it had embarked on its journey 115 minutes earlier than it was scheduled to do so, and that the persons responsible for this had permitted this to occur without the permission of the Train Controller. As a result, the plaintiff had not been expecting to encounter this train on the tracks at the time he was carrying out his rail maintenance work. It would appear from the material within the report of the investigation that the plaintiff had not been warned of the impending problem. The investigation into the incident identified a deficiency in the communications between Network Control Officers and maintenance staff.

In my view, these circumstances indicate that no significant prejudice has been shown to be likely to arise or to impede the defence of the proceedings if leave were granted for the plaintiff to proceed. The factual circumstances were comprehensively investigated, witnesses were identified and detailed statements obtained from those witnesses, including a statement from the plaintiff. In these circumstances it seems difficult to discern how the passing of time is likely to practically impede a defence of the plaintiff's claim on the issue of liability.

From the perspective of damages, the plaintiff's initial medical and allied treatment has been documented. In my view, the defendant has not demonstrated any significant prejudice that is likely to impact on a defence of the plaintiff's claim in respect of the damages claimed. In this regard, the onus is on the defendant to demonstrate that any such prejudice exists.

Accordingly, I find that the defendant would not be significantly prejudiced if leave were granted as is claimed by the plaintiff. The position might have been different where there were extensive treatment records that were no longer available for review in order to test the claim, however, this is not such a case.

Pacific National (NSW) Pty Ltd consents to being joined to the proceedings but opposes the limitation relief sought by the plaintiff. I have determined that such joinder is an appropriate step to be taken in this case and that it should have effect from the date the original proceedings were filed.

The plaintiff has succeeded on all issues calling for decision. Although the defendant resisted the relief sought by the plaintiff, in my view this is a case where the costs of the motion and of the summons should be costs in the cause.

I make the following orders:- (a) Leave is granted pursuant to s 64 of the Civil Procedure Act 2005 to amend the proceedings by correcting the erroneous naming of Asciano Pty Ltd which has hitherto been described as Afciano Pty Ltd;

(b) Leave is granted to the plaintiff to join Pacific National (NSW) Pty Ltd as a defendant in the proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005;

(c) Leave is granted for Asciano (incorrectly sued as Afciano) Pty Ltd t/as Freight Corp to be removed from the proceedings pursuant to Rule 6.29 of the Uniform Civil Procedure Rules 2005;

(d) The plaintiff is granted leave to file an amended statement of claim in the form annexed to the notice of motion filed on 3 December 2009, such amended statement of claim to be filed on or before 28 April 2010;

(e) Costs of the plaintiff's summons and the costs of the plaintiff's notice of motion are to be costs in the cause;

(f) Liberty to apply on 7 days notice, if required.

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