Workers Rehabilitation and Compensation Act 1988 (Tas), s135.

Limitation Act 1974 (Tas), s5.

Judgment Number: [2002] TASSC 80

PATRICK JAMES RUSH v SKILLED ENGINEERING LIMITED

(ACN 005 585 811), SIMON ENGINEERING LIMITED (ACN 000 117 000)

trading as SILCAR PAPER and AUSTRALIAN PAPER PTY LTD (ACN 082 475 438)

1 The plaintiff, a fitter and machinist, employed by the first defendant, a labour hire company (Skilled Engineering), claims to have suffered a back injury whilst working for the second defendant, a maintenance contractor (Silcar Paper), at the premises of the third defendant, a paper manufacturer (Australian Paper) on 4 April 1996. By his writ issued 13 March 2001, the plaintiff alleges that his back injury was the result of the negligence and breach of statutory duty of each of the defendants. The plaintiff received workers compensation payments from his employer and so the limitation provisions of the Workers Rehabilitation and Compensation Act 1988 apply to the claim against Skilled Engineering. So far as Silcar Paper and Australian Paper are concerned the Limitation Act 1974 applies. Both Acts prescribe a primary limitation period of three years from the date of the accrual of the cause of action, that is to say, from the date upon which the injury was suffered. Both Acts confer upon the Court a discretion to extend the primary limitation period for a further period of up to three years. The discretion under each Act is the same, namely, a discretion to be exercised in accordance with the justice of the case: Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996. The plaintiff having delivered his statement of claim and now being faced with limitation defences from each of the defendants has applied to have time extended to the date of the issue of the writ.

2 The evidence given by the plaintiff as to the facts upon which his action is based is as follows. The plaintiff was a fitter and machinist classified as a leading hand. He was part of the Skilled Engineering work force available for hire. Skilled Engineering hired his services to Silcar Paper to assist it in carrying out a maintenance and repair contract it had with Australian Paper, the operator of the Wesley Vale paper mill. The plaintiff was an experienced tradesman having completed his apprenticeship as a fitter and machinist in 1977. He was not supervised by nor directed by Skilled Engineering whilst working for Silcar Paper, but left to work in accordance with that company's requirements. On 4 April 1996, he presented at work at the paper mill at about 7.30 am and carried out duties assigned to him by Silcar Paper. At about 10.30 am along with Silcar Paper employees, Stephen Dick and Craig Hortle, also fitters, he was assigned to replace the pump which pumped pulp into a storage tank ready for use in the paper making part of the plant. It took them 2 - 3 hours to disconnect the pump. When this had been done the reconditioned replacement pump was still being made ready and, accordingly, the three men went off to attend to other duties. At about 4.30 pm the replacement pump was brought into the pulp area of the plant and the three commenced the installation task. The area in which they were working was so confined that the work had to be undertaken adopting awkward and uncomfortable postures. The reconnection involved replacing bolts in areas which were difficult to get at and great care and precision was required as couplings needed to be closely aligned with pipes to achieve satisfactory connections. Because of the awkward access the plaintiff spent a good deal of time on hands and knees attending to his task. The installation took about 2½ hours, and was completed at about 7 pm.

3 The pump was started at about 7.30 pm and failed. By this time Mr Hortle had left for the day. The pump and the surrounding area had a covering of pulp. This was hosed away and the plaintiff and Mr Dick inspected the damage. The four glands (one at each end of the two drive shafts) of the pump had blown out. The glands are seals used to prevent liquid escaping from where the rotating shafts protrude from the body of the pump. The plaintiff was of the view that the failure had occurred because the glands had not been properly tightened before the reconditioned pump left the workshop and possibly because nobody had ensured that the outlet pipe to the storage tank was clear of any blockages after the old pump was removed. The plaintiff and Mr Dick were of the view that the remedial action required was to clear the outlet pipe of any blockages and to repack and tighten the failed glands. Although working conditions would be difficult with the pump left in place, no thought was given to removing it to undertake the work. Removal was not necessary to perform the required work. Removal and replacement was a time consuming procedure. Although the plaintiff and Mr Dick had by this time been at work for about 12 hours, walking away and leaving the problem for another time was not an option. Mr Dick's employer, Silcar Paper, was responsible for the maintenance work. Silcar Paper had hired from Skilled Engineering the plaintiff's services. The pump needed to be made operational urgently as reserves of pulp in the holding tank were believed to be running low and if more pulp was not pumped in shortly the paper machine would have to be shut down at great expense to Australian Paper. The plaintiff and Mr Dick simply set about the repair work with the plaintiff, the smaller of the two men, working at the more confined non-drive end of the pump on the two glands there and Mr Dick working with a little more space on the two glands at the other end.

4 It took the plaintiff about two hours or so to complete the work at his end of the pump. Because of the position of the pump the plaintiff spent most of his time working bending over at the waist. Within about half an hour the plaintiff began to experience back pain which he attended to by taking short breaks to stretch. The pain increased however as he did the work radiating into his left buttock and left leg. He worked on regardless until the job was completed on the basis that it was urgent work expected of him. The work was completed at about 10 pm and the pump was successfully restarted. The plaintiff and Mr Dick packed up and the plaintiff left work at about 11.30 pm that evening.

5 The next morning the plaintiff reported at the paper mill for work, but he was still in pain and went to the first aid office and reported the incident. The pain got worse during the day and he went to see a doctor who prescribed anti-inflammatory medication and certified him unfit for work for the balance of the week. When the plaintiff returned to work he found that during the course of the day the pain would increase so that by the afternoons he had difficulty walking. He persevered for about 2½ weeks before being once again certified by a doctor as being unfit for work. When he did return he was assigned light duties by Skilled Engineering.

6 The plaintiff in his statement of claim attributes his injury to the posture he was forced to adopt in repairing the glands on the night of 4 April 1996. He says, amongst other things, that Skilled Engineering was negligent and acted in contravention of the Workplace Health and Safety Act 1995, in requiring or allowing him to work as he did for a prolonged period with such an awkward posture. Similar allegations of negligence are made against Silcar Paper along with complaints that Silcar Paper was negligent in failing to ensure that the glands were properly tightened and the outlet pipe unblocked before the new pump was installed. It is alleged that Silcar Paper acted in breach of reg182A of the Industrial Safety Health and Welfare (Administrative and General) Regulations ("the Regulations") by causing or permitting the plaintiff to work contrary to the National Standard for Manual Handling. It is alleged that Australian Paper was negligent for the same reasons as Silcar Paper, and also negligent and in breach of its statutory duty under the Regulations in failing to locate and set up the pump and associated apparatus in such a way that maintenance work could safely be undertaken.

The relevant considerations and assessment methodology

7 The discretion conferred by the legislation is a discretion to grant and not a discretion to refuse and so the plaintiff carries the overall onus of satisfying the court that the discretion should be exercised in his favour: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 544, 547, 551 and 567. In considering the exercise of the discretion the court is entitled to take into account every relevant factor and circumstance that does not travel beyond the scope and purpose of the enactment authorising the extension of the limitation period: Klein v Domas Pty Ltd [1963] HCA 54; (1963) 109 CLR 467 at 473; Taylor at 554 and Marr v Green 3/1993 at 1.

8 The rationales for enacting limitation periods are set out by McHugh J in Taylor at 551 - 553 as follows:

(a) As time goes by relevant evidence is likely to be lost. The longer the delay the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose.

(b) Allowing actions to be belatedly commenced is oppressive to prospective defendants.

(c) People should be able to arrange their affairs on the basis that claims can no longer be made against them.

(d) There is a public interest in having disputes settled quickly.

It is in the context of these rationales that the discretion to extend time is to be approached. The question is whether the facts of the particular case should override the general rule bearing in mind the reasons for the existence of the general rule. If they should then the exception can be invoked to eliminate the injustice the plaintiff would otherwise suffer by the barring of his action: Taylor at 553.

9 The plaintiff should demonstrate that he has an arguable case. Unless the apparent viability of the proposed action can be shown in an appropriately preliminary way, the plaintiff could not expect to persuade the Court that he will suffer an injustice if the time bar is left in place. If the case which the plaintiff outlines is obviously hopeless, the justice of the situation could never lie with the grant of the extension: Williams v The Minister Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508. On the hearing of an application for an extension of time the issue of the liability of the prospective defendant cannot be canvassed with the exhaustiveness that would be achieved at trial. The plaintiff only has to show the viability of the claim. There is no need to obtain comprehensive information from each and every witness available to the plaintiff. There is generally no opportunity to cross-examine the witnesses of the prospective defendant. Accordingly, the court having found that a claim is viable will not usually go on to assess whether the proposed case is weak or strong or somewhere in between. In relation to "skeletal" evidence on an application of this kind Cox J (as he then was) said in Soul v Soul 23/1982 at 6:

"It may be that at a subsequent trial additional evidence might alter its complexion to such an extent that the conclusion no longer remains open."

Of course, there may be cases where the court is able to conclude even on the limited materials available to it that the proposed action is in respect of an insignificant injury and in any event is very unlikely to succeed. In such cases, in my opinion, it would not be going beyond the scope and purpose of the legislation to give effect to that conclusion by deciding that it would not be just to lift the time bar and expose the prospective defendant to potentially expensive and time consuming litigation over a minor matter with the plaintiff having little prospect of success.

On the hearing of the application the plaintiff may not even be in possession of sufficient evidence to establish a prima facie case, but this will not automatically be disentitling. As Zeeman J said in Butt v Comalco Aluminium (Bell Bay) Ltd (supra) at 9:

"The accepted relevance of the merits of a proposed cause of action on the hearing of applications of this nature should not be elevated into a proposition of law that an applicant must establish a prima facie case. On the other hand a failure to establish a prima facie case may suggest that the proposed action is speculative and therefore affords strong grounds for refusing the application ...".

10 To persuade the Court that the overall justice rests with the grant of the extension the plaintiff needs to fully and frankly explain the failure to commence the action within time and any delay following the expiration of the limitation period: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 435 and Marr v Green (supra) at 1. A conscious and informed decision within the limitation period not to take action would tend strongly against a conclusion that there is an injustice to be remedied: Hall (supra) at 435 - 436. On the other hand, a plaintiff with a viable case, ignorant of the limitation period, whose injury only became debilitating after the expiry of the limitation period and who had not suffered significantly financially prior to the expiry of the period, but had instead tried to get on with his life and career may well suffer an injustice if time is not extended: Glover v Southern Cross Homes (Tasmania) Inc 111/1997 and Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23. A plaintiff who does not condescend to set out fully the reasons for the delay deprives the court of an ability to properly consider the matters relevant to the discretion and should generally expect that such a failure will mitigate strongly against a favourable exercise of the discretion. A plaintiff who does give an explanation which shows fault on his part will not necessarily fail. The fault will simply be a factor to be taken into account with the other considerations: Knight v Smith (1975) Tas SR 83.

11 As I have said limitation legislation amongst other things, is a recognition of the fact that as time goes by relevant evidence is likely to be lost so that there is a deterioration in the quality of the justice that can be administered. The greater the delay the greater the risk. This feature being one of the rationales for the enactment of limitation periods must be considered in every case. The disadvantage, however, to a defendant caused by delay will vary from case to case, and as Toohey and Gummow JJ said in Taylor at 550:

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

The question then arises, bearing in mind that the applicant carries the overall onus, whether it is for the applicant to show that delay has not made the chances of a fair trial unlikely or for the prospective defendant to show that it has. In Taylor, McHugh J said at 555 that the existence of prejudice is presumed by the legislation in favour of the defendant at the expiration of the limitation period and Dawson J agreed at 544. In other words, they held that a prospective defendant had no evidentiary onus on this point. However, they were in the minority on this matter. Toohey and Gummow JJ at 547 endorsed the position stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; [1964] VR 788 at 793, namely:

"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."

Kirby J, although dissenting on other matters, put Toohey and Gummow JJ in the majority on the point. He said at 566 - 567:

"It will be rare that the passage of time does not cause at least some disadvantages to a prospective defendant (eg, the erosion of memory; the loss of documents; and the death, departure or disappearance of witnesses). But precisely what that disadvantage is in a particular case is better determined on evidence than on the basis of judicial generalities about time, the importance of finality and the usual desirability of prompt action for the fair trial of contested issues.

It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. ... If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the 'evidentiary onus' resting on a proposed defendant in relation to such an issue." [emphasis added]

12 Where prejudice is asserted it is no answer to say that the prejudice had accrued by a time shortly prior to the expiry of the limitation period during which the proceedings could have been commenced as of right: Taylor at 548 - 549 and 554 - 555_._ Where the court is able to conclude that the chances of a fair trial have become unlikely through delay, seldom will the justice of the plaintiff's claim be likely to be strong enough to warrant the reinstatement of the right of action: Taylor at 555. Although a weighing process may be undertaken in relation to the respective injustices that might be caused to the parties depending on the outcome of the application no weighing process applies in the case where the chances of a fair trial have been lost through delay. On the issue of prejudice it is not a question of balancing the prejudice which the plaintiff will suffer by being deprived of a trial against the prejudice which the prospective defendant will suffer by being deprived of a fair trial: Taylor at 549.

"There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion."

The passage from the judgment of Kirby J quoted earlier shows his agreement with this general proposition. Accordingly, it follows that the second rationale concerning the oppression to a defendant dealing with belated claims is a matter for the prospective defendant to deal with in evidence. The third and fourth rationales, namely, the community benefit of having limitation periods enforced so that people and institutions can confidently arrange their affairs and disputes are settled quickly, are simply matters to be taken into account by the court in considering whether the overall justice of the case lies with invoking the exception to the general limitation rule.

14 Counsel for Skilled Engineering conceded that as employer of the plaintiff it had a non-delegable duty of care. There was no point in contending otherwise. As Mason J (as he then was) said in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687 and 688:

"That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of an employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."

Mason J had occasion to confirm his remarks in Stevens v Brodribb Sawmilling Co Pty Ltd (1985 - 1986) 160 CLR 16 at 32, where he said:

"In Kondis v State Transport Authority I considered that the law sometimes imposes on people a duty higher than the usual common law duty to take reasonable care. This higher duty is a duty to ensure that reasonable care is taken and it is said to be non-delegable because a principal who engages another to perform work will be liable for the negligence of the person so engaged, notwithstanding that he exercised reasonable care in the selection of the contractor."

15 Counsel for Skilled Engineering, however, went on to submit that:

"... there is not a scintilla of evidence suggestive of a breach of that non-delegable duty of care."

The evidence is that Skilled Engineering took no effective interest in the plaintiff's safety. Its occupational health and safety manager, Mr Glover, in his affidavit annexed Skilled Engineering's standard conditions of hire for its work force which was concerned entirely with the amount to be paid in respect of the employee hired.

"The process by which Silcar Paper, or any other client at that time, hired skilled labour hire from Skilled was that the client would simply telephone Skilled and order a certain number of workers of a certain skill for a fixed period of time. The payment rates would be discussed and agreed upon.

Skilled did not have any input into the supervision of the work which Skilled employees performed at a client's work site, such as that controlled by Silcar Paper, or any control over the system of work conducted by clients or their supervision of Skilled employees including the plaintiff. Responsibility and supervision for the plaintiff's safety lay with Silcar Paper whilst the plaintiff was on hire. Whilst working for Silcar Paper the plaintiff came under the direct control and supervision of Silcar Paper.

Skilled administrative staff frequently went onto work sites to ensure that workers were performing their work as required by the client, but such presence was to ensure client satisfaction rather than relating to the substantive work or the system of work, or supervision of that work being performed by Skilled workers."

16 The reality on the day of the injury was that the plaintiff, was likely to have worked as he did risking injury. Australian Paper had a manufacturing plant to run. Silcar Paper had contracted to maintain the equipment at the plant. Skilled Engineering had provided part of the work force required by Silcar Paper to perform its maintenance contract. If a piece of equipment critical to the operation of the plant broke down and repairs were required urgently to keep the plant running it does not take much imagination to foresee employees putting themselves in the same position which the plaintiff was in, in the belief that a failure to act may jeopardise future employment. I refer to the transcript of the plaintiff's cross-examination at p48:

"Mr Hall: (resuming) Well, if I can take you back again, and be specific to the three months leading up to the time of your injury. You said that, in your opinion, you were under the supervision and control of Silcar and Australian Paper. Was there a representative from Skilled Engineering on site during that period? ...Oh, they come on to the site once a week.

Okay. But they didn't have any control over the task that you were assigned did they? ... None whatsoever - and don't care.

Okay. When they hire you out to Silcar, do they tell you that your job is essentially to do what your supervisors tell you to do? ... Yes, I mean, now days, you are given a safety booklet that says, I know - if you don't feel its safe, you don't do it. But, in the real world that's not the situation at all because you go home and wait for the phone call for your next job, so in real life, you do what the people on the site ask you to do."

17 Lord Brandon said in McDermid v Nash Dredging and Reclamation Co Ltd [1986] UKHL 5; (1987) 2 All ER 878 at 887:

"My Lords, the Court of Appeal regarded the case as raising difficult questions of law on which clear authority was not easy to find. With great respect to the elaborate judgment of that court, I think that it has treated the case as more difficult than it really is. A statement of the relevant principal of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Second, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Third, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."

The evidence shows that Skilled Engineering did not take responsibility for the system of work nor for its operation. The environment into which Skilled Engineering placed the plaintiff exposed him to the possibility of working long hours in physical discomfort and Skilled Engineering instead of dealing with the risk simply left it to others. It is plainly arguable (in my view highly likely) that Skilled Engineering will be liable for the negligence, if any, of those persons having responsibility for the control of the plaintiff at the time of his injury.

18 Counsel for Skilled Engineering referred to the case of Fennell v Supervision and Engineering Services Holdings Pty Ltd & Anor (1987 - 1988) 47 SASR 6, as an illustration that an employer who hires out the services of an employee is not necessarily liable for a breach of the duty of care by the person accepting the hiring arrangement. There the plaintiff was sent by his employer, a labour hire company, to work as a storeman for Santos Ltd. He injured his back in a situation of urgency whilst attempting to manually handle a steel flange weighing about 300 lbs. The case, however, is of no assistance to Skilled Engineering in the context of this application where I am simply considering whether or not the plaintiff has an arguable claim. King CJ was plainly of the view that although the trial judge had dismissed the action against the hire company (which dismissal was not the subject of appeal) the opposite finding may have been the proper one. He said at 7:

"... I think that it may well have been proper to hold the appellant's employer, the first defendant, liable to the appellant for a breach of the non-delegable duty to provide a safe system of work. It is unnecessary, however, to decide this point. De facto control of the appellant had passed to Santos Ltd and the fault which caused the appellant's injury was that of Santos Ltd."

19 On behalf of Silcar Paper it was submitted that the evidence does not support a claim that it was negligent as at the time of the plaintiff's injury he was working under the effective control of the Australian Paper superintendent at the plant, Mr Gerald McCoy, there being no Silcar Paper supervisor there at the time. Mr McCoy apparently was a qualified fitter and machinist. He was in a position to issue instructions including instructions relevant to the plaintiff's safety. I do not consider that this submission provides an insurmountable answer to the plaintiff's claim against Silcar Paper. Silcar Paper had a responsibility to those persons working for it. The plaintiff and his co-worker had already been at work for about 12 hours when the reconditioned pump failed. They had been left as apparently the only two people available at the plant to perform the repair work and left without a supervisor. They were left with the plant superintendent standing by adding pressure on them to complete the repair work as quickly as possible. It is at least arguable that Silcar Paper was negligent in leaving the plaintiff and his co-worker without a Silcar Paper representative being there to assess the ongoing work environment and consider whether relief Silcar Paper staff should have been called in. Although it might have been reasonable for Silcar Paper to consider that Mr McCoy would attach appropriate weight to the well being of the workers there is nothing to suggest that Mr McCoy was in the equivalent position of a Silcar Paper supervisor. In particular, there is nothing in the evidence which suggests that Mr McCoy had direct access to any on call Silcar Paper staff and it was foreseeable that Mr McCoy may have been principally concerned, not with how the work was being done, but with getting it done before the pulp reserves in the storage tank were exhausted resulting in a shutting down of the paper making part of the plant. The plaintiff has a viable claim against Silcar Paper and it follows, in light of the authorities to which I have referred, that a finding of negligence against Silcar Paper will also be likely to result in a finding that Skilled Engineering is liable for Silcar Paper's acts or omissions.

20 On behalf of Australian Paper it was submitted that the evidence against it was not sufficient to demonstrate either the existence of a duty of care or a breach. Australian Paper was the operator of the plant. The maintenance work had been contracted out to Silcar Paper and its staff whether employed or hired were its responsibility. In particular, the system of work so far as maintenance was concerned was not within the area of responsibility of the plant operator. Reference was made to Stevens v Brodribb Sawmilling Co Pty Ltd (supra). There, Brodribb Sawmilling Co Pty Ltd operated a sawmill. It contracted tree fellers to fell trees; sniggers to construct a loading ramp and move the logs through the forest to the ramp. Finally, it contracted truckers, including Mr Stevens, to accept logs onto their trucks at the loading ramp and transport them to the sawmill. One of the sniggers was loading logs onto Mr Stevens' truck using a bulldozer. The snigger asked Mr Stevens to assist and for that purpose he had entered an area near to the foot of the ramp. Before Mr Stevens had moved clear the snigger recommenced the loading operation. A log rolled down the ramp pinning Mr Stevens against the bulldozer and causing him serious injury. The trial judge found the snigger to have been negligent and that finding was not disturbed by the Full Court of the Supreme Court of Victoria and was not the subject of the appeal to the High Court. The Trial Judge had also held the sawmiller Brodribb to be liable, but that finding was overturned by the Full Court and it was in relation this aspect of the case that Mr Stevens took the matter to the High Court. The High Court rejected arguments that Brodribb was the employer of the snigger and Mr Stevens and so rejected the contention that Brodribb was vicariously liable for the snigger's negligence and rejected the contention that Brodribb owed a duty of care to Mr Stevens by virtue of an employment relationship. The High Court also rejected the contention that there exists in Australia the "doctrine of extra hazardous acts" rendering a principal liable for the negligence of his independent contractor in undertaking such dangerous operations. That then left the High Court to consider whether the general common law duty of care applied by reference to the elements of reasonable foreseeability and proximity. The High court having regard to the interdependence of the activities carried out in the forest and the need for coordination by Brodribb imposed upon Brodribb a duty to prescribe and provide a safe system of work. However, it was held that the duty was not breached in the ways put forward by Mr Stevens. The loading ramp had been constructed in accordance with established forest practice. It was unrealistic having regard to the mountainous terrain to introduce forklift trucks as part of the loading operation. The sniggers being skilled operators and there being no history of accidents during the loading operations there was no reason for Brodribb to place a supervisor at the ramp.

21 It was suggested by counsel for Australian Paper that an application of the same principles and methodology will inevitably result in the plaintiff's claim against Australian Paper failing. I do not accept that the circumstances of this case are analogous to the circumstances in Stevens. Here, unlike in Stevens, Australian Paper's superintendent, Mr Gerald McCoy was standing by, for at least some of the time, watching the injury causing activity. Mr McCoy, in particular, was there as the plaintiff worked in a cramped environment adopting awkward postures and undertaking heavy manual work. The plaintiff described in his affidavit some of his activities in the following terms:

"... I had to bend over the pump so that my body was jack knifed across the pump to access the back side of the gland. Once the first ring of the gland packing had been started in by pushing and pulling with screwdrivers the gland follower had to be forced in behind it using a podgy bar from each side simultaneously ... This operation had to be repeated four times on each shaft to put in the packing. Not only was I jack knifed over the pump but I was in a twisted position for about 1½ to 2 hours. While I was doing this work on a number of occasions the podgy bars slipped causing me to jerk forward suddenly."

Injury was foreseeable. Mr McCoy was the plant superintendent. He was apparently employed by Australian Paper and apparently acting in the course of his employment whilst overseeing the repair work. Presumably it was within his power to relieve the plaintiff from further duty that evening. That much having been said it is arguable that at trial an evidentiary onus would then be cast on Australian Paper to demonstrate that relieving the plaintiff from further duty was unreasonable in the circumstances. In Inverell Municipal Council v Pennington (1993 - 1994) 82 LGERA 268, Meagher JA referred to Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 and in relation to the case where a defendant had the power to control an activity at a place for which it had responsibility said at 283:

"So long as a duty arises whenever the occurrence of the risk is not fanciful a duty will arise in every single case. It does not follow that the defendant will be liable in every single case, but it does follow that he will be unless it can be proved that to avoid the risk would be wholly unreasonable."

22 The plaintiff has demonstrated that his claim against each of the defendants is viable.

23 The plaintiff saw a doctor the day following the injury and was certified unfit for work for the rest of the week and prescribed anti-inflammatories. Within about 2½ weeks of returning to work the plaintiff found that by the afternoons he was in such back pain that walking became difficult and that "By the end of each day I was in agony and I spent all of my evenings lying flat on the floor with my left leg bent at the knee. The weekends were spent resting." Thereafter, another doctor was consulted who certified that the plaintiff was unfit for work for a period and then was fit for light duties only. The plaintiff's level of earnings reduced whilst he was on light duties because of his inability to perform overtime. He consulted his union representative who referred him to a solicitor in December 1996.

24 The plaintiff said under cross-examination that he was aware of the possibility of making a common law claim for damages and that there was some discussion about this aspect with his solicitor, but that no action was taken as his "thoughts were almost entirely on getting myself in some situation where I could get back to work" (presumably pre-injury duties including overtime). The solicitor did not follow the meeting up with any correspondence and the plaintiff did not attempt to contact his solicitor. In February 1998, the plaintiff's union arranged for him to have another consultation at the same legal firm, but this time with a different solicitor. The meeting occurred in February 1998 and on 23 February 1998, the solicitor sent to the plaintiff a letter recommending that instructions issue to investigate the possibility of making a negligence claim against Australian Paper. Part of the investigation required was the commission of a report from a medical practitioner at a cost of about $600. The letter advised the plaintiff that a claim needed "to be made within three (3) years of the date of the injury, that is by April 1999", and went on to say "I do not think you should delay too much longer in investigating whether you have a negligence claim because these investigations can take some months". In March 1998 an appointment was made for the plaintiff to see a medical specialist on 30 June 1998. That appointment was kept.

25 In October 1998, the plaintiff was referred to a third solicitor in the legal firm and an internal memorandum was sent by the referring solicitor in October 1998 advising that the plaintiff was on a three month new job trial with Skilled Engineering and it was expected that within a couple of months a decision would be made by Skilled Engineering as to whether he had a future as an employee of that company. The memorandum said that if the plaintiff's work was not to be continued there would be a "need to look at his common law entitlements and/or workers compensation entitlements". About two months later the plaintiff saw the third solicitor at which time settlement discussions were occurring. In January 1999 the plaintiff told the solicitor that he would like to secure a lump sum settlement and provided her with some details of expenses he had incurred as a result of his injury including spending about $6,000 replacing his wood heater with a heat pump because of his injury. In late January 1999, the solicitor identified what she considered to be an appropriate settlement figure. On 27 January 1999, the insurer for Skilled Engineering sent a facsimile transmission to the plaintiff's solicitor concerning the execution of a deed of release previously forwarded. When the plaintiff saw the deed of release he decided not to go through with the proposed settlement the reasons for which he explained in cross-examination (transcript p35) in the following terms:

"As I said at the time, I will say again, more money would have made my situation worth the risk of signing the release and that's the simple facts of it.

... But at twenty thousand dollars and no guarantee of a job and an ongoing back injury I wasn't going to take responsibility for my back injury."

The file was then passed on to a fourth solicitor in the legal firm whom the plaintiff met on 25 March 1999. The plaintiff gave evidence that at that meeting he had still made no decision as to whether a writ was to be issued and it was apparent from his evidence that he still entertained a hope that he would have a long term employment future with Skilled Engineering. The transcript at p36 records the following exchange in the course of the plaintiff's cross-examination:

"And was that because you still were not sure whether you wanted to proceed with issuing a writ? ... Yes. I didn't want to go ruffling any feathers with my employer or with Silcar or with anyone else, I wanted to be in a job, I want to be in a job now, I don't want to be sitting here, I want to be working. Now that was my total concern at the time. I thought if I piss everyone off, lodge a writ, that will probably bugger up my chances of employment so I was basically trying to say well keep my nose clean, do the right thing by everybody and hopefully I will still be employed."

26 The solicitor was seen again on 13 April 1999 at which time the solicitor told the plaintiff that Skilled Engineering would dismiss the plaintiff from its employment unless the plaintiff accepted the settlement offer or obtained a clearance from his doctor to return to normal duties. This made it crystal clear to the plaintiff that at that stage it was unlikely that he had a long term employment future with Skilled Engineering. There was no reason for him to remain indecisive about issuing a writ. The time limit had expired on 3 April 1999, but the plaintiff gave evidence that he was unaware that it had prior to the meeting on 13 April 1999. There was no suggestion from any of the defendants that the plaintiff was not a witness of the truth. The transcript at p36 contains the following:

"Now at that stage you knew that the time limit had already gone by? ... No.

Mr Harris told you about that though didn't he? ... Only after I asked him to issue the writ."

On 14 April 1999 the plaintiff's solicitor sent a letter requesting written instructions for commencement of the proceedings. It said in part:

"Once I have your written instructions then I will make application to the Supreme Court for an extension of time so that we may file the writ in the Supreme Court to allow you to bring common law proceedings." [emphasis added]

Those instructions issued shortly thereafter. The writ issued against Skilled Engineering on 14 May 1999. On 28 May 1999 the plaintiff was referred to a fifth solicitor in the legal firm and that solicitor told him that the writ had issued. The letter of 14 April 1999 indicated to the plaintiff that an extension of time needed to be granted before the writ could be filed and so the reasonable assumption from the plaintiff's point of view on the face of what he had been told and what had occurred would have been that an extension of time had been granted and time was no longer an issue.

27 I find that the plaintiff did not issue any instruction to withhold service of the writ. The plaintiff said in his affidavit that at the meeting with his solicitor on 28 May 1999 he instructed him to proceed with the action. On 18 February 2000 a sixth solicitor at the plaintiff's legal firm wrote advising the plaintiff that the insurers of Skilled Engineering had made an increased offer to settle his claim. The letter made no mention of the fact that the writ had not been served. The last day for service of the writ was 13 May 2000. There is no evidence that the plaintiff received correspondence advising that the writ was about to go stale and seeking instructions for service. The evidence is consistent with the plaintiff believing that the writ had been served.

28 The letter of 18 February 2000 said that the solicitor had insufficient information at that stage to make a recommendation in respect of the offer. The plaintiff frustrated with his solicitors asked his union if he could be referred to another firm and on 24 February 2000 he saw a solicitor at the new firm (now the seventh solicitor he had seen). In the course of issuing his instructions he told the solicitor that a writ had already issued. On 18 April 2000 the new solicitor wrote to the plaintiff setting out in brief summary the facts giving rise to the injury; setting out some of the material matters that needed to be proved to succeed and advising the plaintiff that further expert evidence was required. The solicitor invited the plaintiff attempt to obtain union approval for the transfer of his file to the new solicitor. There was nothing in the letter to indicate urgency. The plaintiff's union approved the transfer of the file to the new firm and wrote accordingly to the plaintiff's new firm of solicitors on 20 September 2000. The union said that the former solicitors had been requested to pass the file on and that the question of that firm's costs had been resolved. Notwithstanding this, the old firm of solicitors did not pass the file over until 23 October 2000. Within two or three weeks of this the plaintiff's new solicitor went on maternity leave and the file was referred to another solicitor in that firm, now the eighth solicitor dealing with the plaintiff's matter. That solicitor had read the file by the end of November 2000 and noted that the writ had not been served. On 11 December 2000 he sent the stale writ to the solicitor for Skilled Engineering, but on 21 December 2000 a reply was sent advising that service would not be accepted and an unconditional appearance would not be entered. On 13 March 2001 the current writ issued and shortly thereafter was served on all defendants. Appearances were entered by each and on 25 May 2001, the statement of claim issued. By 27 June 2001, defences had been received from the three defendants each pleading the time bar. On 1 August 2001, the application for the extension of time was filed.

29 The failure to commence action within time and the delay following the expiry of the primary limitation period has been satisfactorily (that is, fully and frankly) explained.

30 The plaintiff consulted a solicitor in the same year that the injury occurred. He wanted to recover his health and return to normal duties rather than litigate. He remained in employment with Skilled Engineering during the three year limitation period and when off work had been in receipt of workers compensation payments. He knew from early on that he had a potential claim and he knew that a three year time limitation applied from the date on which he injured his back. About a year before the primary limitation period expired he received correspondence from his solicitor regarding the investigation of the merits of a common law damages claim. He issued instructions for the investigation to occur and on 26 March 1998 his solicitor wrote to him advising of an appointment with a medical specialist made for 30 June 1998. That letter went on to say:

"Once I have received Dr Rossi's report I will make an appointment for you to see me to go through that report and also to obtain a statement from you. I have a copy of your accident report already."

This letter indicated that the plaintiff's interests were being represented and that he could await further communication from his solicitors. The plaintiff attended the medical appointment as arranged and saw his solicitors again in December 1998. By then settlement discussions were occurring. The plaintiff did not want to accept the settlement proposal of Skilled Engineering without having some reason for being confident that his future employment was secure. It became apparent that the plaintiff's employment was not secure and in March 1999 the plaintiff instructed his solicitor not to proceed to settle the claim. I have accepted the plaintiff's evidence that he was not conscious of the primary limitation period passing by between the discussions he had with his solicitor in March 1999 and 13 April 1999, when his solicitor told him that time had expired. Accordingly, I reject the submission made by the defendants that the plaintiff consciously allowed his proposed action to become statute barred. The time limit passed by because the plaintiff's solicitors did not remind him of the need to make a decision by 3 April 1999, and because the plaintiff was a passive and indecisive client who did not give the careful attention he should have given to being alert to the date by which he needed to commence proceedings so that he could make a firm election by that date as to whether or not he wished to sue. In this regard, I conclude that the plaintiff was at fault for his lack of care and that any injustice he might suffer as a result of now being prevented from pursuing his action would be significantly less than would have been the case had he not known at all about time limits.

31 Promptly, upon being informed on 13 April 1999 that time had expired the plaintiff instructed his solicitors to apply for an extension of time to facilitate his claim. However, after being told that the writ had issued he remained a passive client not initiating contact with his solicitors and not requiring progress reports or otherwise encouraging prompt action. If he had he would have found out that the writ had not been served well before it became stale. In respect of the period up until 13 April 1999 the plaintiff said in his affidavit:

"I had previously expected my solicitors would do everything to protect my interests."

Plainly that expectation had not been fulfilled so far as reminding the plaintiff about the time limit was concerned. The plaintiff thereafter had good reason to pay close attention to the progress of his claim. Despite this the plaintiff had little or no communication with his solicitors for several months after May 1999. I consider the plaintiff to be at fault for the period between May 1999 and about December 1999 or January 2000 when his union made arrangements for him to see new solicitors. This fault also mitigates against any injustice the plaintiff will suffer if he is deprived of his action.

32 The plaintiff saw his new solicitors in February 2000 and received follow-up correspondence from them in April 2000. That correspondence did not indicate any urgency, but notwithstanding this, I consider that the plaintiff's failure to communicate with his original solicitors up until the file was transferred to the new solicitors in late 2000 was unsatisfactory. There was no contention on behalf of the defendants that the plaintiff contributed to the delay between his new solicitors getting the file in late 2000 and the issue of the writ in March 2001.

33 The fault which I have found, although not necessarily determinative against the plaintiff, is a significant factor which I will take into account in assessing whether the overall justice of the case lies with the grant of the extension sought.

34 The injury was reported the day following its occurrence. On the day of the report the plaintiff was certified by his doctor to be unfit for work. The plaintiff received workers compensation payments from the insurer of Skilled Engineering. The plaintiff in his affidavit identified his co-worker at the time of the injury as Silcar Paper employee, Mr Stephen Dick. The plaintiff in his affidavit identified Australian Paper supervisor, Mr Gerald McCoy, as being present on the day of the injury. The defendants have not said that these persons are unavailable to them or that their recollections are unreliable. There is no evidence that the set up of the pump and the area around it, as it was, can no longer be accurately described. Although since service of the writ the defendants have been entitled pursuant to legislation to have the plaintiff submit to examination by medical practitioners appointed by them and to provide such medical practitioners with all such facilities and information as may be required to ascertain fully the nature and extent of the injury, there is no evidence that the passage of time has disadvantaged the medical investigation of the claim.

35 I do not ignore the generalities concerning how delay diminishes the quality of justice that can be achieved at trial, but in the circumstances of this case, where the injury was promptly reported; where workers compensation documents were presumably created; and where witnesses presumably remain available, I do not attach great significance to the generalities concerning the effect the effluxion of time potentially has. There being no evidence presented on behalf of the defendants indicating that delay has made the chances of a fair trial unlikely when it would be expected that if such evidence existed it would be in their power to present it, the inference is that a fair trial can still occur, and I find that it can.

36 It was suggested on behalf of Skilled Engineering that the company having conducted settlement negotiations within the three year limitation period that it is now oppressive to lift the time bar and allow a belated action to proceed against it. I do not consider that this feature gives rise to any oppression. Firstly, the possibility of a claim continued to be apparent to Skilled Engineering as in February 2000, well after the primary limitation period had expired, it made a further offer of settlement. The question of who is to blame for the plaintiff's injury is the subject of litigation anyway in proceedings commenced by Skilled Engineering against Silcar Paper and Australian Paper for recovery of workers compensation payments pursuant to the Workers Rehabilitation and Compensation Act 1988, s134(1). There is no evidence that since the plaintiff's cause of action accrued any of the defendants have lost insurance cover or that the fact that the proceedings are belated will cause financial embarrassment. I have no reason to think that extending time for the plaintiff will cause material oppression to any of the defendants, and as I said earlier, the defendants carry the evidentiary onus on this aspect, and so I infer and accordingly find that there is no material oppression.

37 I have found that the plaintiff has a viable case against each of the defendants. Allowing the case to proceed will not cause material prejudice or oppression. I have concluded that the potential for the delay to have diminished the quality of the justice that can be achieved at trial is not great in the present circumstances. Against these factors, however, I note that any injustice that would be caused to the plaintiff by precluding the action is very much diminished by the fact that the plaintiff is at fault for his action not having been commenced in time and at fault for much of the delay that has occurred thereafter. Even when I take into account the fact that the plaintiff is at fault and take into account the general interest which the community has in having claims commenced and disposed of promptly, on balance, in my opinion, the injustice which the plaintiff would suffer by not being permitted to pursue his action is significantly greater than the injustice which the defendants would suffer by having the time bar which protects them lifted. I also am of the opinion that granting the extension in the circumstances of this case will not undermine the policy considerations which lie behind limitation legislation.

38 There will be an order that the time within which the plaintiff's action against each of the defendants may be commenced is extended to the date of the issue of the writ, namely, 13 March 2001.