1 REGISTRAR WALLACE: Now before me are two applications, one brought by each defendant. The first defendant's application was made by chamber summons dated 22 November 2004, and on its face it seeks an order that the plaintiff's claim against the first defendant be struck out, consequential to par 1 of my orders made in pre-trial conference on 8 September 2004.
2 The second defendant's application was made by chamber summons dated 24 November 2004, and on its face it seeks leave to bring the application out of time and summary judgment pursuant to O 16 of the Rules of the Supreme Court. Each defendant also seeks the costs of its application. The two applications were heard by way of special appointment on 15 March 2005, when I reserved my decision.
3 It is appropriate for me to note at the outset that the plaintiff's action was commenced on 6 November 2001, and briefly to outline the nature of the plaintiff's claim against each of the two defendants.
4 The plaintiff's claim in this action against each defendant is for damages in respect of personal injury allegedly sustained during the course of carrying out his work between August 1997 and January 1998. According to the statement of claim, the plaintiff, who is currently aged 40 years, was at all material times employed by Kiam Corporation. Kiam Corporation contracted with the first defendant to hire the plaintiff's services to the first defendant at a processing plant at Naval Base, Kwinana, which is where the work in question was undertaken. It is pleaded that the first defendant had overall responsibility for supervising all work carried out at the plant, and that the first defendant provided direct supervision, direction and control to the plaintiff in the manner of performance of all work at the plant, including boilermaker/welding duties, the plaintiff's schedule and the plaintiff's hours of work. It is also pleaded that the first defendant had overall responsibility for the safety of all workers undertaking work at the plant.
5 The plaintiff pleads that the first defendant owed the plaintiff a duty of care to ensure, inter alia, that the plaintiff was not exposed to any reasonably foreseeable risks of injury and to ensure that it properly supervised and controlled the plaintiff's work so as not to expose the plaintiff to any reasonably foreseeable risk of injury.
6 As against the second defendant the plaintiff pleads that it was the manufacturer and/or supplier of vibrating tools, and that it supplied such vibrating tools to Kiam Corporation. The plaintiff pleads that the second defendant owed a duty of care to the plaintiff to take reasonable steps to ensure that the plaintiff was not exposed to any reasonably foreseeable risk of injury and to take such care as was necessary to see that the plaintiff did not suffer injury or damage by reason of any dangers which were due to the use of the vibrating tools.
7 The plaintiff further pleads that, between August 1997 and January 1998, the first defendant required the plaintiff, in the course of his employment, regularly to work for between 70 and 80 hours per week, for extended periods of up to 63 days without a break, and to operate the vibrating tools supplied by the second defendant for excessive hours without any or any adequate work breaks.
8 It is pleaded that the vibrating tools did not exhibit warnings and/or advice that their extended operation or use, without adequate breaks, was likely to constitute a hazard or cause injury to the operator.
9 According to the plaintiff, the first defendant breached its duty of care to him by, inter alia, requiring him to work excessive hours and/or operate the vibrating tools for excessive hours, by failing to provide him with adequate work breaks, and generally requiring him to work in a manner which resulted in his being exposed to the risk of injury.
10 According to the plaintiff, the second defendant breached its duty of care to him by failing adequately to identify and/or reduce the hazards to which the plaintiff was likely to be exposed by use of the vibrating tools it supplied to the Kiam Corporation, and failure to warn of the risks of injury associated with the use of its vibrating tools.
11 (For the sake of completeness, I note that the plaintiff also pleads a cause of action based on breach of statutory duty, but it is not necessary for the purpose of these reasons to examine that part of the pleadings in detail.)
12 The injuries which the plaintiff claims resulted from each defendant's breach of its duty of care include bilateral pain syndrome in the hands, wrists, elbows and forearms, reduced strength, muscle wasting, anxiety and depression. The plaintiff's treatment has included open bilateral carpal tunnel release surgery and narcotic based medication.
13 Turning now to consider the nature of the two applications to be determined, I note that there is significant overlap. Essentially, the two can be dealt with together insofar as they relate to the issue of the plaintiff's expert evidence. The second defendant's application for judgment has an additional ground (relating to a pleading issue) which will be addressed separately.
14 As a preliminary matter, I note that whilst, on the face of it, each application for judgment has been made at a very late stage in the proceedings, the circumstances are such that there has been no undue delay. Neither defendant's application will fail on that ground, therefore, and leave is granted to the second defendant to bring its O 16 application out of time.
15 It is now appropriate for me to examine precisely what has prompted the making of these two applications for judgment. On 8 September 2004, I presided on a pre-trial conference, during the course of which I made, inter alia, an order in the following terms: