Jeremiah Wade v Josa Services Pty Limited trading as Josa Constructions & Ors - [2007] NSWDC 184 - NSWDC 2007 case summary — Zoe

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Jeremiah Wade v Josa Services Pty Limited trading as Josa Constructions & Ors

[2007] NSWDC 184

District Court of NSW|2007-05-04

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At a glance

Source facts

Court

District Court of NSW

Decision date

2007-05-04

Source

Original judgment source is linked above.

Judgment (149 paragraphs)

[1]

The application to amend against the defendant (the first respondent to the motion)

[2]

7 The plaintiff seeks leave to amend the statement of claim to claim against the defendant in its capacity as an independent contractor as opposed to an employer. The plaintiff asserts that this is the mere addition of particulars and not a new cause of action and accordingly it is governed by section 64 Civil Procedure Act 2005 (NSW). I consider section 65 is also relevant in that it specifically provides for amendments when the time period has expired.

[3]

8 Section 65 provides as follows: "(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64(1)(b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, "originating process", in relation to any proceedings, includes any pleading subsequently filed in the proceedings. "

[35]

38 The proposed new particulars of negligence are: (j) Making a hook from a material of insufficient strength to support the weight of a laden hopper. (k) Manoeuvring the hopper so that the throat of the hook became positioned on the horizontal plane. (l) Causing the boom of the excavator to be so moved that the hook went from a vertical position to a position approximating the horizontal. (m) Causing the boom of the excavator to be so moved as to release the hopper from its hook when it was above the plaintiff. (n) Using a hook of incorrect type, it being capable of being moved with an orientation such that the throat of the hook can point lower than the horizontal. (o) Contrary to Regulation 73(6) of the Regulations made under the Act the Defendants failed to provide overhead protection for persons working below other persons or where there is a likelihood of persons being injured by timber or other material of strength and construction reasonably adequate to catch, deflect or hold any reasonable weight of material or objects that may fall upon such protective construction. (p) Contrary to Regulation 73(7) of the Regulations made under the Act the Defendants failed to provide head protective helmets, of an approved type, for the use of persons working in places over which it was impracticable to fix overhead protection. (q) Contrary to Regulation 73(14) of the Regulations made under the Act the Defendants failed to cause measures to be taken to ensure that scaffolding materials, tools and other objects and materials shall not be thrown, tipped or shot down from a height where they are liable to cause injury, but shall be properly lowered. (r) Contrary to Regulation 73(14) of the Regulations made under the Act the Defendants failed to protect the plaintiff from falling or flying debris. (s) Contrary to Regulation 127(70) of the Regulations made under the Act the Defendants, where loads are raised, lowered, handled or transported on hooks, or other media, under circumstances in which it is necessary or desirable to prevent them becoming unshipped or displaced therefrom, failed to adopt approved safety hooks, or other approved means to prevent such unshipping or displacement, and/or to prevent injury to any person in the vicinity.

[142]

97 The fifth respondent makes the following submissions: (a) the fifth respondent notes the notice of motion was filed in excess of 6 years after the injury and 3 years and 8 months after expiry of the limitation period. The submission is made that the plaintiff has had plenty of time to gather evidence supportive of his case against Abigroup but no such evidence has been forthcoming. (b) the plaintiff has not demonstrated a real case to advance against Abigroup. In particular: (i) the expert's report is silent as to Abigroup (and the plaintiff's statement of 7 September 2000, which was provided to him, makes no mention of Abigroup or Mr Polito, whom the plaintiff claimed in his evidence before me was the supervisor and whom he said saw the hook on the excavator) (ii) in cross-examination the plaintiff conceded that Mr Polito was not the site supervisor but a labourer and that he could not be sure how far away he was from the excavator to have noticed the hook (T 82 - 83) (iii) this is very much a case where the plaintiff, a specialist sole trader drain layer, was in a better position to exercise his own judgment and carry out the work safely: Pack-Tainers Pty Limited v Moore [2005] NSWCA 43. (c) the plaintiff has no excuse for delay against Abigroup arising from complexity of motor vehicle statutory regime interpretations or uncertainty about which company to sue. The facts of any claim against Abigroup would have been known to the claimant in a very short time and in fact his evidence was that he mentioned the role of Abigroup to Mr Shaun McCullough "maybe four or five years ago" (T 7) and that his discussions with Mr McCullough were what led to his decision to bring proceedings against Abigroup (T 54). The plaintiff knew about limitation periods from his advice from solicitors over this period of time; I have set out the details of this advice in some detail above. (d) Abigroup faces substantial prejudice as follows: (i) it has had no prior notification of the claim. No report was provided to Abigroup on the day of the injury (T 36) although the plaintiff was aware that there was an accident book to be filled in if an accident occurred (T 36). The plaintiff also said in his evidence at T 36 that he knew that if he wanted a copy of any accident report from the site log he should do so yet there is no evidence he ever did. The opportunity for Abigroup to locate any documentation or witnesses six years later, or to have the benefit of interviewing Mr Polito when he had some memory of these events, has been lost. (ii) It is at a disadvantage on the medical evidence, for the same reasons as those put forward by the second to fourth respondents. (iii) The absence of contemporaneous documentation to challenge the plaintiff's version of events is a substantial prejudice. The fifth respondent also noted the absence of the alleged eyewitness "George". (iv) There was no other reference to Abigroup in the legal advice tendered (see Exhibit 13), although the plaintiff was clearly discussing this issue with Mr McCullough some years beforehand. 98 The plaintiff submits that "for reasons unexplained" the fifth respondent did not adduce any evidence from Mr Polito. The plaintiff in written submissions points to an alleged conversation between the plaintiff and Mr Polito on 1 October 2006 in the course of which Mr Polito said "I remember your accident" and "If you want a copy of the accident report from the Site Log you should contact Abigroup's Legal Department." The plaintiff put this in his affidavit of 13 November 2006.

Jeremiah Wade v Josa Services Pty Limited trading as Josa Constructions & Ors

At a glance

Court

Decision date

Source

Judgment (149 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (11)

Cited By (1)