CITATION: Hill v Iluka Corporation Limited & Anor [2002] TASSC 30

HEARING DATES: 28 February, 15 April and 1 and 3 May 2002

Limitation of actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.

Limitation Act 1974 (Tas), s5(3).

Judgment Number: [2002] TASSC 30

1 By writ filed 26 July 2001, the plaintiff claims damages for personal injuries suffered by him in the course of his work at the Renison tin mine near Zeehan in Tasmania on about 9 March 1998. As the plaintiff has not received workers compensation payments the relevant limitation of actions legislation is to be found in the Limitation Act 1974, and not in the Workers Rehabilitation and Compensation Act 1988. Section 5(1) provides that actions for damages consisting of or including damages in respect personal injuries are not to be brought more than three years after the date on which the cause of action accrued. Section 5(3), however, authorises the Court to extend that period for up to six years from the accrual of the cause of action if, after hearing the persons likely to be affected "in all the circumstances of the case it is just and reasonable so to do". The plaintiff seeks an extension of time to the date of the issue of his writ, namely, for a period of about 4½ months after the expiry of the primary limitation period.

2 The plaintiff is a geologist currently aged 33 years. He obtained an Honours Degree in Science at the University of Western Australia at the end of 1997 and commenced employment with the first defendant ("Iluka") in February 1998. His employment commenced with a two week course dealing with team building and management issues in the Blue Mountains in New South Wales. Immediately upon completion of that course, he was sent by Iluka to Zeehan in Tasmania, to commence work with the second defendant ("Renison") at its Tasmanian tin mine under the supervision of geologist, Mr Tim Hunter. The plaintiff had some below ground safety training, but within about two weeks of commencing work at the mine he had the accident which is the subject of these proceedings. His clothing issue had not arrived and he was wearing apparel principally used by visitors to the mine including a pair of steel capped wellington boots, which he says were too big for him, the right size not being available. He had only been underground a few times and was not used to the environment. He was climbing down an underground ladder about three metres long which, he now says, was damp, greasy and poorly anchored. He was substantially dependent for light on his helmet lamp and says that he could not see the rungs upon which he was placing his feet. He got about half-way down the ladder when he lost his footing and then fell a metre or so to the mine floor. He says that he landed in a pot hole causing him to fall backwards onto his side landing on his hip. The plaintiff says that since the fall he has suffered from lower back pain with occasional periods of intense discomfort requiring complete rest.

3 On behalf of Iluka it was submitted that I should disbelieve the plaintiff's version of events and dismiss his application. On behalf of Renison it was submitted that I should dismiss the application on the basis that although the plaintiff provided sufficient evidence to demonstrate a viable action, he had established only "the barest outline of a case". Both submissions were predominantly based on the fact that the circumstances which the plaintiff now says caused or contributed to his fall were not included in an Incident Investigation form completed shortly after the accident and signed by the plaintiff. The description of the incident contained on the form is confined to the following:

"Fell off ladder which accessed hand mined bench/stope. Landed on right side & back".

The question "What are the immediate acts, failures to act and/or conditions contributed most directly to this incident?" was answered "k - still becoming familiar with working underground with restricted lighting". The preventative measures recommended on the form were described as "q - reinstruction of employee involved".

The reverse side of the form contained a glossary including the following:

"What condition of tools, equipment or job site caused or contributed to the accident?

What action has been taken or is planned to prevent recurrence?

4 The glossary on the reverse side of the form enabled a selection from a large number of possible causative conditions and preventative measures some of which may have been better suited to the situation which the plaintiff now asserts. For example, in relation to conditions causing or contributing to the accident, the following options were available:

In relation to preventative measures the options available included:

5 The plaintiff was cross-examined at length. Although he now complains that a factor contributing to the fall was a failure on the part of the defendants to give him appropriate warnings, he admitted that at the time the Incident Investigation form was submitted no such complaint had crossed his mind. As to the allegation that the ladder was damp, greasy and rusty, the plaintiff conceded in cross-examination that the first time this allegation had been communicated to the defendants in writing was some years after the event. He made similar concessions regarding his current allegations about the size of his boots; lack of lighting and lack of stability of the ladder being contributing factors. There were complaints about the plaintiff's credibility. For example, the plaintiff said in his affidavit that as a result of the fall he had to "take two days off from work". The plaintiff admitted that this was not correct, but said he recalls being on light duties for a couple of days immediately following the incident.

6 I am not prepared to conclude that the plaintiff is to be disbelieved. He said that at the time of his fall he had not developed a familiarity with the underground environment which he described as "quite an intimidating environment". He said that he was "embarrassed" about having fallen and as he had only been in his new job for a short time he wanted to "impress" and not "to make a fuss". He said he filled out the Incident Investigation form with the assistance of his supervising geologist, Mr Tim Hunter. He said that Mr Hunter witnessed his fall. Being new to the mine, in my opinion, it is certainly conceivable that the plaintiff accepted the condition of the ladder as part and parcel of the normal underground working environment. In this context it is not necessarily surprising that the contents of the incident report form attributing the fall to lack of familiarity with the underground environment and selecting reinstruction as the appropriate preventative measure were adopted by the plaintiff as applicable to the situation. The case which the plaintiff wishes to present at trial, should his action proceed, although possibly controversial, does not lack viability.

7 The defendants submitted that the delay in commencing proceedings had not been satisfactorily explained. The plaintiff, prior to commencing his geology course at the University of Western Australia had successfully completed a Bachelor of Laws Degree and worked as a legal practitioner for a year or two. He knew of the availability of damages as a remedy where fault could be shown. He knew that limitation periods applied to personal injury claims, but did not know what those periods were. His back condition resulted in x-rays being taken within a couple of months of the fall and the x-rays showed some spondylolisthesis of which there was a history in the plaintiff's family. About a 1½ years after the fall further x-rays, a CT scan and a MRI scan were undertaken confirming defects at L5 with minor spondylolisthesis at the L5/S1 level. In December 1999 the plaintiff's orthopaedic surgeon, Mr Peter Woodland, reported:

"It certainly would appear that Richard's pre-existing condition of bilateral L5 pars defects with relatively minor spondylolisthesis, was rendered symptomatic by the significant fall March 1998.

I discussed with Richard the range of possible treatments including diagnostic/therapeutic L5 pars defects injections using local anaesthetic and corticosteroid. Also L4/5 and L5/S1 facet joint injections. If any one of those injections did at least give transient relief then theoretically he might benefit from denervation procedures as performed by a pain specialist.

Theoretically surgery could be considered, but obviously kept at a last resort. If surgery were to be considered at some stage it would probably best involve L5/S1 posterolateral fusion surgery, although one could consider fusing the L4/5 level in view of the definite two level disc disease seen on the MRI scan."

8 By the time of this report in December 1999, the plaintiff had, presumably at his own expense, undergone physiotherapy treatment and he had regular episodes of back pain. Intermittently the pain had radiated to both thighs and as far as the knees, particularly after prolonged sitting. The plaintiff's symptoms were aggravated by activities such as repetitive bending and lifting and sitting for more than 30 - 60 minutes at a time. By late 1999 or early 2000, the plaintiff had suffered a period of intense pain which confined him to bed for a week. Thereafter, he was not able to return to normal activities for three or four weeks and on his return to work continued to experience significant discomfort for several weeks. There were other episodes of significant pain including later in 2000 when the plaintiff had to take a week away from work. It was at this point that the plaintiff decided to take legal proceedings. He reported the matter to Iluka and some months afterwards in about February 2001 he was interviewed by a loss assessor. At around the same time in February 2001 he saw a lawyer in Perth, Western Australia. That lawyer has said in an affidavit that the limitation period for personal injuries claims in Western Australia is six years and that his "impression was that the same period applied in Tasmania". His lawyer prepared a detailed case history and made some preliminary enquiries as to the corporate entities to be named as defendants in the proceedings. He then left for an overseas holiday on 24 February 2001 returning to his office on 15 March 2001. Whilst the lawyer was away the three year limitation period passed by. On 3 April 2001, the lawyer wrote to Tasmanian solicitors and a couple of days later was advised that the action was out of time. The lawyer then caused proceedings to be instituted against the wrong company. Eventually, he correctly identified the defendants and the current action was commenced by writ filed 26 July 2001.

9 The plaintiff had been advised by his orthopaedic surgeon in December 1999 that his symptoms should be treated "conservatively" and that he would not become "very badly disabled". Following that report the plaintiff suffered episodes of significant pain, but his orthopaedic surgeon advised in June 2000 that the plaintiff's symptoms "should remain fairly stable" with the "worst case scenario" being "that from time to time he will have severe flare-ups of pain". Continuation of conservative treatment was recommended. A flare up of the pain occurred later that year and the plaintiff discussed with his orthopaedic surgeon the possibility of facet joint injections and the possibility that as a last resort the plaintiff might have to submit to a posterolateral fusion. The plaintiff had not been severely disabled. It does not appear that any significant amount of work had been missed and it does not appear that any significant out-of-pocket expenses had been incurred. I accept that the plaintiff did not know that the time limitation for the commencement of his action was three years; that his injury had not been significantly disabling and that he was getting on with his work and career. It has been accepted in this jurisdiction in the past that such an explanation for delay is satisfactory (see Glover v Southern Cross Homes (Tasmania) Inc 111/1997 and Bluett v Wedd Canon Pty Ltd [1999] TASSC 23). Notwithstanding that the plaintiff had had legal training, I regard his explanation for delay up until the time he decided to take action as having been satisfactorily explained.

10 The limitation period did not expire until 9 March 2001. The plaintiff had consulted his solicitor only a month earlier. Perhaps that solicitor's handling of the matter is open to reasonable criticism. He knew that the accident occurred in Tasmania, but took no prompt steps to find out what time limit applied. It was not until 26 July 2001, that he secured the filing of a writ against the appropriate defendants in Tasmania. Even, however, if fault is to be attributed to the solicitor, it is not fault for which the plaintiff should be held responsible. I am satisfied that the plaintiff, having seen his solicitor, apprised him of the relevant information and thereafter, did not by act or omission cause progress to be slow (Hall v Nominal Defendant [1966] HCA 36; (1967-68) 117 CLR 423 at 435).

11 The plaintiff said in his affidavit "I attach hereto as Annexure 'E' a copy of the form which I filled in and which was duly forwarded by my ex employer to QBE Workers Compensation NSW Ltd". The annexure contained a facsimile transmission imprint showing that it was sent on 2 August 2000. I infer from this that by 2 August 2000 the plaintiff had decided to claim compensation of some sort in respect of his fall. He did not, however, see a solicitor until 9 February 2001, a period of a little over six months. The plaintiff has not explained the delay between deciding to take action and consulting a lawyer, but I infer he was content to await a response from Iluka's insurers. Having regard to the plaintiff's legal training, he must have known that it was likely that he would have to sue to recover common law damages and although he did not know what it was he knew that a time limit applied. The plaintiff should have seen a lawyer promptly after deciding to claim compensation. Instead he did not see a lawyer until a month before the limitation period expired. He created the environment which led to the time limit passing by, whilst the matter was in his lawyer's hands. His fault in this regard is not necessarily fatal to the application (see Knight v Smith (1975) Tas SR 83 at 91). It is, however, a factor which I will take into account in considering the overall question of whether the plaintiff has persuaded me that the justice of the case lies in granting the extension which he seeks.

12 The defendants say that the belated commencement of the proceedings has caused them prejudice. As I have already said, the Incident Investigation form completed at the time of the accident is not enlightening as to what the plaintiff now says were the causative features. The evidence is that the plaintiff was interviewed on behalf of Iluka by a loss assessor in about February 2001. The evidence does not disclose any communication to Renison, the mine operator, of the plaintiff's detailed allegations prior to the filing of the plaintiff's affidavit sworn in October 2001. The plaintiff did not during the course of his employment claim workers compensation payments. There was nothing to indicate to the defendants for several years that the plaintiff had suffered an injury of significance. Renison sold its interest in the mine in September 1998 and has not conducted business in Tasmania since. On selling its interest in the mine it ceased to employ all those who worked for it in the mine. The only record of the incident that was kept by Renison was the Incident Investigation form completed at the time of the incident. Affidavits filed on behalf of Renison indicate that store records as to the size of the boots issued to the plaintiff are not now available and would only have been kept for about a year. The witness to the incident, Mr Hunter, no longer works at the mine, but is believed to be now employed somewhere in New South Wales. Renison no longer holds the records of the training which the plaintiff received when he first started at the mine. In the normal course of events those records would have been sent to Western Australia when the plaintiff's employer, Iluka, transferred him back there in 1999.

13 The defendants say that the effluxion of time causes them prejudice in responding to a number of issues likely to be raised at the trial should the action proceed. They say that questions at the trial will include the following:

(a) Did the plaintiff fall because he slipped from the ladder?

(c) Was there grease on the ladder and, if so, how long had it been there before the fall?

(d) What was the state of lighting in the vicinity?

(e) Did the plaintiff ask for the correct size boots?

(f) Were the correct size boots issued to him and, if not, was there a good reason for the lack of availability of boots at the time?

It may be that witness, Mr Hunter, has a satisfactory recollection of events. It may be that the questions posed above, with the exception of the questions relating to the boot size, are all capable of easy answer. For example, it might be that it was common in underground mines for areas to be dimly lit; for ladders to be exposed to water and grease; for ladders to be loosely chained in place rather than firmly affixed etc. As Toohey and Gummow JJ said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547:

"Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; (1964) VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd (1966) Qd R 465 at 474:

'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"

14 The defendants have put forward no evidence of any attempt to find Mr Hunter other than making an enquiry of the current Operations Manager of the mine. I am not persuaded that Mr Hunter after reasonable search and enquiry cannot be found. In light of the passage just quoted above, it is for the prospective defendant to undertake the search and enquiry and if the witness is found it is for the defendant to put forward a basis demonstrating that the passage of time has caused a material diminution in the quality of the evidence that the witness might be able to give. That has not been done. Iluka has not said that it no longer has access to the plaintiff's training records and I have no reason to believe that Renison could not obtain any such records from Iluka. Mr Hunter had responsibility for the plaintiff when he commenced work at the mine and I am not persuaded that he would be unable to give evidence concerning the issue of the plaintiff's boots. The plaintiff gave evidence that he filled out the initial Incident Investigation form in the presence of Mr Hunter and relayed to him the substance of the allegations he now makes. He said "I certainly made Tim Hunter orally aware of how it happened and what happened, but - you know - it does not appear on the document but it certainly - he was - my superior was made aware of - you know those things". Mr Hunter had the job of supervising the plaintiff and without him being contacted and asked I am not prepared to conclude that Mr Hunter has no satisfactory recollection in relation to the issue of the boots.

15 The defendants submitted that they are disadvantaged by a lack of contemporaneous medical records. The evidence, however, does not bear this out. The plaintiff allegedly suffered the injury in March 1998. He was x-rayed in April 1998 in Perth when he returned there for a short time for a wedding. He was back in Perth for a couple of weeks in September 1998 where he undertook physiotherapy treatment. In October 1999 more x-rays and a CT scan were undertaken. In November 1999 he was seen by an orthopaedic surgeon in Perth and in December 1999 a lumbar spine MRI scan was taken. The writ issued in July 2001 and the defendants have been entitled under the Evidence Act 1910, s25, to have the plaintiff medically examined and to have the plaintiff provide to the defendants' examining practitioner all such facilities and information as may be necessary to ascertain the nature and extent of the injury. There is no evidence from the defendants that they are disadvantaged because of the passing of time in the medical investigation of the plaintiff's injury even though they have had sufficient opportunity to obtain such evidence (if it exists) from a medical practitioner.

16 As was said in Brisbane South Regional Health Authority v Taylor (supra) by Toohey and Gummow JJ at 550:

"The real question is whether the delay has made the chances of a fair trial unlikely. "

The proceedings were commenced within a fairly short time of the expiry of the primary limitation period and the defendants have not placed in evidence sufficient facts to lead me to the view that prejudice would be occasioned by the delay if the matter proceeds.

17 In considering this application, I take into account the rationales for the enactment of limitation periods as described in Taylor (supra) by McHugh J at 552 - 553. In this case, however, the observations concerning the difficulties belated litigation imposes on defendants believing that potential liabilities have been spent and arranging their affairs accordingly are of lesser consequence. Iluka had been advised of a potential claim before the expiry of the three year limitation period. Renison, if I allowed the matter to proceed against Iluka, will be exposed to potential liability any way as Iluka is within time under the Wrongs Act 1954 to claim an indemnity against Renison.

18 Although the plaintiff has failed to satisfactorily explain the delay between deciding to commence proceedings in about August 2000 and instructing a solicitor in February 2001, on balance I am of the opinion that the justice of the case lies with the grant of the extension sought. There will be an order that the time limited for the bringing of the action be extended to the date of the issue of the writ, namely, 26 July 2001.