Lee v Woolworths Ltd

Judgment 1HER HONOUR: On 26 October 2012 orders were made under r 28.2 of the Uniform Civil Procedure Rules 2005 to permit resolution as a separate question whether proceedings against the second and third defendants are statute barred by operation of s 50C and s 50D of the Limitation Act 1969. 2On 14 March 2005 the plaintiff was employed by Williams Bulk Haulage Limited (Williams) as a driver of prime mover trucks. Williams supplied trucks and drivers to Wickham Freight Lines Pty Ltd (Wickham) - the third defendant. Wickham is the preferred carrier for the transport of goods on behalf of Woolworths Ltd - the first defendant. 3On 14 March 2005 the plaintiff was driving a truck that had been loaded at the Woolworths Distribution Centre at Warwick in Queensland to the Combined Distribution Management Centre (CDM) at Yennora in Western Sydney. CDM operates as a partnership where six transport companies use Yennora as a freight delivery hub. Wickham is one of those companies. 4The plaintiff was not responsible for loading the truck or supervising its loading at Warwick. Once loaded the truck is sealed until it is received at Yennora where, after the seal is confirmed as unbroken, the truck is unloaded by forklift drivers. 5There is a lack of clarity in the evidence before me as to the precise relationship between CDM, the forklift drivers, the participating transport companies, and the identity of those who direct or supervise the unloading operations at Yennora. Questions as to duty of care and scope of duty that is owed (or might be owed) to drivers and others who use the site are live issues in the proceedings. 6The truck driven by the plaintiff included boxed cans of Coca-Cola, the product of Coca-Cola Amatil Ltd (CCA) - the second defendant. It seems to be the agreed position that the boxes were originally packed by CCA and then stacked on pallets which were, in turn, wrapped in shrink-wrapped plastic designed to secure the load for transport to Warwick and from there to Yennora. Each of the three pallets contained 60 boxes and each box contained 30 cans. In an expert report obtained by the plaintiff for the purpose of the substantive proceedings (and relied upon by CCA in the proceedings before me) it appears that after the pallets were originally packed and wrapped by CCA they were restacked and rewrapped before the pallets were loaded onto the truck before the plaintiff left Warwick. There is no evidence as to where and when this occurred (or any explanation as to why it might have occurred or who might have been responsible for it). 7On arrival at the Yennora depot the plaintiff confirmed what he suspected from the way the load was moving in transit, namely that the plastic shrink-wrap around the pallets had broken, freeing the cardboard boxes and necessitating the restacking of a large number of them onto new pallets to allow for the truck to be unloaded. The plaintiff was not provided with any manual or mechanical assistance from the depot staff employed by CDM at Yennora to restack the boxes. In the process he injured his back. One of the forklift drivers did confirm that the load had "fallen over" before it was unloaded but he declined to assist the plaintiff. The depot manager, Mr Jones, a person the plaintiff understood to be employed by Wickham, also came to learn some time later that the load had collapsed, the plaintiff apparently having gone to seek assistance from him but was unable to find him before attending to restacking the load himself. 8The plaintiff sought legal advice in August 2005. Thereafter his solicitors sought the advice of senior counsel in anticipation of commencing proceedings in negligence against those individuals or entities considered to be at fault. The plaintiff gave evidence that he has at all times accepted the advice of his lawyers. 9On 31 August 2006 Mr King SC advised that of the potential causes of action, a claim against the party responsible for operating the depot at Yennora for failing to provide adequate manual or mechanical assistance for the restacking procedure, or no safe system for accomplishing it, was the most feasible. He also considered there may be a cause of action against the plaintiff's employer as to which there is no issue in the present proceedings. 10In so far as the potential claim against the entity responsible for loading and securing the truck at Warwick, Mr King advised that while there should be no difficulty in obtaining evidence from someone experienced in loading trucks to say it should be possible to load and secure the pallets so that a load does not become destabilised and collapse in transit, in his view the party principally at fault was at Yennora as this was where the plaintiff suffered injury. After giving consideration to potential jurisdictional questions which did not rise in the proceedings before me, counsel advised that: ...If at all possible the identities of the employers of the people who did the loading in Warwick and who drove the forklifts and did the general work in the premises at Yennora should be ascertained... 11No advice was given that proceedings against CCA should be considered or commenced. 12On 26 July 2007 Mr King rendered further advice confirming his earlier identification of three potential defendants and the implications of a claim in negligence against each of them. In giving further consideration to a claim against Wickham (the entity he had by that time apparently been instructed was the occupier of the premises at Yennora), Mr King made reference to a statement from Mr Jones, the depot manager employed by Wickham, from which he concluded that because of an instruction given by Wickham to its forklift drivers only to lift properly stacked pallets from trucks, Wickham was the party responsible for not having provided assistance to the plaintiff in the restacking process. However, he expressed a qualified view as to whether what he described as Wickham's "responsibility" converted to liability for the purposes of bringing proceedings against them, a determination that appeared to him to turn upon whether the need to ensure the stability of a load to be transported was so routine that Wickham did not owe any duty of care to ensure that an unstable or collapsed load was safely unpacked. In that regard he referred to J Blackwood & Son Steel & Metals Pty Ltd t/as Horans Steel v Nichols [2007] NSWCA 157. In the result, counsel advised that: ... there is still plenty of time to commence proceedings before the time limit expires, but ... it would be desirable to get proceedings under way as soon as possible. After referring again to be potential jurisdictional question, he said: ...I think it is simply a matter of commencing proceedings against Woolworths and perhaps also Wickham Transport. (Emphasis added) 13In October 2007 Mr Sheldon of counsel was briefed to draft a statement of claim. On 16 October he furnished a written advice in which he made express reference to Mr King's advices and, in particular, the three potential defendants identified by senior counsel. However, Mr Sheldon advised that Wickham not be joined as a defendant. After considering Mr Jones' statement in detail he concluded that there was some difficulty identifying the party responsible for providing assistance where a load has collapsed, a problem that he thought was compounded by the fact that Wickham did not employ the plaintiff and, for that reason, it was not incumbent upon them to provide him with a system for restacking pallets. Further, because the collapsing of loads transported from Warwick appeared to Mr Jones to be unusual, counsel was of the view that there may have been nothing to justify the implementation of a safe system directed to the bare potential of that occurring. On the other hand, Mr Sheldon noted that despite the demarcation lines of responsibility between Wickham, CDM and Woolworths being blurred, there was some scope for the imposition of a duty on Wickham by reason of it being the coordinating entity between the plaintiff (subcontracted from Williams) and CDM. 14On 13 December 2007 Mr Sheldon settled the statement of claim in which Woolworths were named as the only defendant. He advised that: Further inquiries need to be undertaken as to the identity of other potential defendants. Given that the accident, the subject of the proposed proceedings, occurred on 14 March 2005 investigations and any amendment to the pleadings need to take place prior to 14 March 2008 in order to avoid limitation complications. 15On 24 January 2008 the plaintiff commenced proceedings against Woolworths in negligence alleging a failure to properly stack and secure the load at Warwick and a failure to implement a safe system for restacking loads which become unstable in transit. (The particulars of negligence were expanded in the amended statement of claim filed on 20 January 2012 which it is unnecessary to elaborate upon for present purposes.) 16On 6 March 2008, after being briefed with material produced under subpoena by Woolworths, Wickham and Williams, including, in the material produced by Woolworths, an agreement it had with Wickham as to its obligations as carrier, Mr Sheldon remained guarded in his advice as to whether Wickham should be joined as a defendant. On the other hand, he expressed the view that it was arguable that CDM owed a duty of care to the plaintiff and ought be joined as a defendant. Before confirming that advice and noting the imminent expiry of the limitation period for the commencement of action against CDM, he asked his instructing solicitors for express instructions from the plaintiff as to whether he had requested assistance from CDM staff which was declined. 17The plaintiff's solicitor took further instructions from the plaintiff on the basis of which Mr Sheldon advised that CDM ought not be joined as a defendant. The question whether Wickham should be joined as a defendant was apparently not revisited. 18On 10 March 2008 the plaintiff's solicitors forwarded a letter to the plaintiff confirming that as at that date the proceedings had issued against Woolworths as the sole defendant. They also referred the plaintiff to Mr Sheldon's analysis of a statement from Helen Williams (his employer) to the effect that it was common knowledge that if a driver required assistance it ought to have been sought from CDM staff, and counsel's advice that if the plaintiff did not seek assistance then it may be contended that he contributed to his own injury. After taking into account the plaintiff's instructions (which confirmed that he did not actually ask for assistance from a forklift driver as distinct from accepting the driver's assertion that he could not assist) the solicitor advised that there was no justification in joining any other party to the proceedings. Again the question as to whether Wickham should be joined as a defendant was not revisited. 19On 12 March 2008, the plaintiff signed an authority to the effect that he did not instruct his solicitor to join any other party to the proceedings and that he understood and appreciated the limitation period was at that time due to expire, and that he would have great difficulty joining any further defendants at any future time. 20On 15 June 2009 Woolworths filed its defence in which, inter alia, it contended that packing and shrink-wrapping the pallets was the responsibility of CCA. It pleaded that its handling of the pallets was confined to unloading them from trucks delivered from CCA and then loading the pallets onto the plaintiff's truck for delivery to Yennora. 21In March 2010 Mr Dooley SC was briefed to appear for the plaintiff. He advised that depending upon the arrangement between CDM and Wickham at Yennora, and in particular the nature of the arrangements between these two entities for assisting drivers with the restacking of a destabilised load, there was a potential liability in either both entities or one of them. While it is patent that Mr Dooley came to a different view from Mr Sheldon on this question (at least in so far as the potential liability in CDM is concerned), it is not clear why he came to the view that Wickham may be liable, other than that he applied a different legally evaluative judgment to the critical legal questions concerning the existence of a duty of care and its scope on the available evidence. It is not suggested that any additional evidence came to light between March 2008 and March 2010. Mr Dooley did however advise that further subpoenae should issue to both entities. 22On 10 September 2010 Woolworths filed a cross claim naming CCA and Wickham as cross defendants. The plaintiff's solicitor gave evidence that it was not until the cross claim was filed that there was thought to be any basis to regard CCA as liable for what Woolworths contended was their failure to properly stack and wrap the pallets to ensure that the load did not shift in transit. Woolworths' cross claim against CCA was subsequently discontinued. The basis of the discontinuance, or any terms upon which it was agreed that the claim would not be pursued, was not in evidence. Woolworths' cross claim against Wickham remains on foot. 23Material produced under subpoena from Williams in September 2010 raised the suggestion that instability in a load at the unloading site should be reported by the driver to the person in charge of the loading dock before unloading commences or as soon as the problem with the load is noted. It is not clear whether that person is the depot manager or someone else, or whether they are employed by Wickham. 24Between October 2010 and December 2010, after persistent attempts to require Wickham to comply with their obligations as a subpoenaed party, counsel advised that the statement of claim be amended to join Wickham and CCA as defendants. 25On 6 December 2011 the plaintiff commenced separate proceedings against CCA and Wickham. There is no evidence as to the reason for the delay of 12 months between the receipt of counsel's advice or why separate proceedings were commenced. On 12 December 2011 both parties were joined to the original proceedings. 26On 20 January 2012 the plaintiff filed an amended statement of claim. 27In summary, as against CCA, the plaintiff alleged a failure to properly stack and package the product for transport and to have a proper system in place for the inspection and identification of the risk of a failure to properly package its products. As against Wickham, the plaintiff alleged a failure to provide a safe system for unloading trucks at Yennora in breach of its obligation to establish an Occupational Health and Safety Training Hazard Identification and Risk Control at that site; a failure to provide manual or mechanical assistance for the removal of a load that has collapsed in transit and to instruct personnel to provide such assistance; and a failure to advise Woolworths and CCA that collapsed loads would not be accepted and should not be transported until they were rendered safe. 28Wickham and CCA have filed defences claiming, inter alia, that the claim against each of them is statute barred by virtue of s 50C and s 50D of the Limitation Act which provide: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff... 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) 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. (3) 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. 29These provisions have been the subject of detailed consideration by the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454, Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 and State of New South Wales v Gillett [2012] NSWCA 83. In Gillett the Court of Appeal confirmed the correctness of the interpretation given to s 50D of the Limitation Act in Baker-Morrison. 30For the purpose of these proceedings the facts with which s 50D(1)(a) and (c) are concerned are not in question. The issue is whether the plaintiff knew or ought to have known of the fact that the injury was caused by the fault of Wickham and/or CCA, as required by s 50D(1)(b), within three years of commencing the proceedings against them. 31As Basten JA emphasised in Baker-Morrison, the state of satisfaction required by s 50D necessitates giving consideration to: (i) the concept of knowledge; and (ii) each of the identified facts in s 50D(1)(a), (b) and (c). His Honour said at [26]: These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. ... 32His Honour then analysed the concept of fault in s 50D(1)(b) as one of the key factors that needs to be "known" before a cause of action is discoverable. At [28] his Honour said: In para (b), the word "fault" is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as "discoverable" for the purposes of s 50C is "the cause of action". The "fact" contemplated by para (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation. 33At [39] his Honour rejected the proposition that it was necessary for a person to be able to articulate a particular cause of action for the purposes of s 50D(1)(b). Rather, "It [was] the key factors necessary to establish legal liability [that had to] be known". At [94] in Gillett Beazley JA confirmed that his Honour's approach to the construction of s 50D was correct. Campbell JA also agreed, publishing additional observations as to the construction of s 50D with which McColl, Young and Whealy JJA agreed. 34The plaintiff submitted that time commenced to run from the filing of the amended statement of claim in January 2012 and, accordingly, that the date of discoverability is 20 January 2009. The defendants submitted that the relevant date is 6 December 2011 - the date when proceedings were initially commenced against them as separate proceedings. As a matter of construction I favour the approach of the defendants although, for the reasons that follow, the six week differential is of no consequence. Accordingly, CCA and Wickham have the burden of establishing, on the probabilities, that the plaintiff knew or ought to have known of the key factors that gave rise to their liability (or either of them) on or before 6 December 2008. 35Assuming the key factors necessary to give rise to liability in his client are those pleaded in the amended statement of claim, counsel for Wickham submitted that they were all facts known to the plaintiff and to his legal advisors on or before 6 December 2008. 36He cross-examined the plaintiff as to the contents of his most recent evidentiary statement of February 2013 (prepared with the assistance of Mr Dooley) to confirm the fact that on the day of the incident he went to Mr Jones, knowing he was an employee of Wickham, to seek assistance but was unable to find him and that the assistance he sought from a forklift driver (a CDM employee) was refused. The plaintiff rejected the proposition however that it was Mr Jones who customarily gave him instructions as to how to unload the truck as distinct from it being Mr Jones who told him where to unload the truck, despite the fact that his evidentiary statement reads: I regularly received instructions of where to load, and indeed how to unload the vehicle from Mr Jones or from other persons who were operating the forklifts. 37The plaintiff was also cross-examined to confirm the fact that it was one or other of these two men who took photographs of the load in its collapsed condition as support for the proposition that the plaintiff knew at that time that Wickham was the responsible entity for documenting the state of a collapsed load and rendering assistance to restabilise to facilitate the unloading of the truck. This, it was submitted, was sufficient to satisfy the requirement in s 50D(1)(b) that the plaintiff knew that it was likely that Wickham was the party at fault on that date and the party against whom he had an actionable case, a state of affairs the subject of advice from Mr Sheldon. 38Mr Dooley submitted that the plaintiff's implied knowledge said to be reflected in what he did (or what he thought he should do) and who he should have asked for help when he discovered the load had collapsed, is not determinative of the state of knowledge required for the purposes of s 50D(1)(b) of the Act. He submitted that it was only after the facts were legally evaluated (by him) for what they revealed about the component parts of a proper system of work at Yennora for unloading trucks and the identity of the party responsible for implementing that system, that the plaintiff could be said to know of the critical causative connection between his injury and the identity of the party at fault. Mr Dooley submitted that it would only be in circumstances where identification of the party at fault requires no input or legally evaluative judgment from a lawyer that knowledge could be attributed to the plaintiff for the purposes of s 50D(1)(b). That, he submitted, is not this case. 39Without the need to recite the facts Wickham's counsel submitted were known to the plaintiff prior to 6 December 2008 and said to be sufficient for the purpose of actionability, as I see it, the critical question is whether the plaintiff knew or ought to have known on or before 6 December 2008 of the legal relationship between Wickham (to whom he was subcontracted by his employer) and CDM (the entity who apparently employed the forklift drivers at the Yennora depot) and whether the relationship between Williams and Wickham was such as to impose on Wickham an obligation to establish an Occupational Health and Safety Training Hazard Identification and Risk Control at Yennora. In my view, the answer to the question is that he did not. On any reading of Mr Sheldon's advices, that information was not communicated to the plaintiff when his instructions were sought in March 2008 to commence proceedings against Woolworths as the only defendant, counsel having apparently taken the view that because CDM was the party potentially at fault at Yennora and the plaintiff had not in fact sought assistance from anyone employed by CDM, an action against them would not be likely to succeed. Why Wickham faded from further consideration as a potential defendant at that time and before Mr Dooley was briefed is not clear. Whatever the reason, what is critical is that there was nothing that the plaintiff knew or ought to have known at the date of the incident, or at any time leading to the date of discoverability on 6 December 2008, that identified Wickham as the party likely to be at fault for the purposes of s 50D(1)(b). 40On that analysis, Wickham has not persuaded me that the proceedings issued by the plaintiff against it are statute barred. 41I have come to a different conclusion with regards to the proceedings against CCA. Although an expert was retained by the plaintiff's solicitors in March 2012 to audit the process by which Coca-Cola products are packed for the purposes of safe transit, as counsel for CCA emphasised, the expert report simply confirmed what the plaintiff already knew as of the date he sustained his injury, namely that the pallets were not packed in the way he had come to expect Coca-Cola products to be packed (because they were packed inappropriately) reinforcing his belief that the pallets had been repacked and rewrapped at some stage after leaving CCA's warehouses and before they were loaded onto the truck at Warwick. In these circumstances, it was submitted by counsel for CCA that since the plaintiff's knowledge of this state of affairs has remained unaltered in any relevant respect since the date of the injury, it necessarily follows that he had the state of knowledge up to the date of discoverability such that the proceedings commenced on 6 December 2011 are statute barred. 42It was common ground that neither at the time of commencing proceedings on 6 December 2011 nor at any time thereafter has the plaintiff been in possession of evidence that the inappropriate repacking and wrapping was the fault of CCA. Counsel also submitted that given the explanation as to why the load collapsed is straightforward, no legally evaluative judgment as to the potential legal liability of CCA was necessary before actual or constructive knowledge of the fault of CCA is attributed to the plaintiff for the purpose of s 50D(1)(b). 43I accept that analysis. Accordingly, CCA have persuaded me that the proceeding against it is statute barred. 44I make the following orders: 1(a). The proceedings bearing file number 2008/289079 in which Wickham Freight Lines Pty Ltd is named as the third defendant are not statute barred. 1(b). The costs of resolving the separate question so far as Wickham Freight Lines Pty Ltd is concerned are to be costs in the cause. 2(a). The proceedings bearing file number 2008/289079 in which Coca-Cola Amatil Ltd is named as second defendant are statute barred. 2(b). The costs of and incidental to resolving that question so far as Coca-Cola Amatil Ltd is concerned are to be paid by the plaintiff and on an indemnity basis as and from 13 February 2012. 3. The matter is to be listed before the List Judge for directions on 8 April 2013.