Todorovski v Petersville Industries Limited [1999] VSC 213

8. The deceased was employed in Kensington by the defendant to clean the cooker after the process of cooking meat for meat pies was completed. On the day the deceased was injured, the lid of the cooker flew open without warning spraying boiling water and steam causing him very serious injuries from which he died.

11. During the course of the inquest the solicitors for the plaintiff became aware that additional persons may have been negligent so as to cause or contribute to the death and ought to be joined as defendants in the proceeding. Counsel was briefed to amend the statement of claim on 4 December 1995 but nothing was done by counsel. In July 1998 another counsel was briefed to amend the statement of claim. The amendments drafted by counsel required joinder of, T. Giusti Limited as second defendant (Defendant 2), a company residing in the United Kingdom, Leeds and Bradford Boiler Co Limited as third defendant (Defendant 3), a company resident in the United Kingdom, and Forest Edge Consultants Limited as the fourth defendant (Defendant 4), a company resident in the United Kingdom.

14. The allegation against defendant 2 is that the cooker was negligently designed and manufactured in that the closure mechanisms had a design fault (paragraphs 7A and 11A Statement of Claim).

17. The allegation against defendant 3 is that a Quicklock locking mechanism was negligently designed manufactured and installed by it. The pleading in paragraph s 7C and 11B is deficient, in my opinion, and requires amendment to plead more precisely the cause of action against defendant 3. I am able to infer, however, that the plaintiff intends to rely upon negligence by defendant 3 in relation to the clamping operation of the lid of the cooker.

20. The allegation against defendant 4 is that defendant 4 installed the Quicklock locking mechanism. The pleading in paragraph 11C is also deficient and amendment is required to specify clearly the cause of action against defendant 4. The appropriate amendments will be necessary, if the court makes the orders sought by the plaintiff.

23. On 11 February 1999, Beach J made an order that the writ may be amended by the joinder of defendant 2, defendant 3 and defendant 4. On 16 February 1999 the amended writ was filed in the Office of the Prothonotary by which time the cause of action against defendant 2, defendant 3 and defendant 4 was barred by s.20 of the Wrongs Act 1958.

26. Time expired on 14 February 1999, six years after the cause of action accrued and only two days before the amended writ was filed.

29. The new defendants entered appearances to the Amended Writ (defendant 2 on 9 March 1999, defendant 3 on 18 March 1999) notwithstanding that the Amended Writ was not endorsed as required by Rule 7.02 of the Rules of the Supreme Court. The Amended Writ, with the appropriate endorsement, could have been served out of Australia pursuant to Rule 7.01 because the proceeding is founded on a tort committed within Victoria (R7.01(1)(i)).

32. On 23 March 1999 defendant 2 filed a Summons seeking an order that pursuant to Rule 23.01 or alternatively Rule 23.03 of the Supreme Court Rules the plaintiff's proceeding be dismissed.

35. On 22 April defendant 3 filed a Summons seeking orders that pursuant to Rule 25.01 of the Rules defendant 3 have leave to withdraw its appearance or, alternatively, to amend it to a conditional appearance; that pursuant to R9.06 defendant 3 be removed as a party; that pursuant to R8.09 service of the Writ be set aside; alternatively, that pursuant to R23.01 the proceeding against defendant 3 be stayed, and alternatively, that judgment be entered for defendant 3 on the ground that the Writ is an abuse of the process of the court alternatively, it discloses no cause of action against defendant 3.

38. On 30 March 1999 the plaintiff filed a Summons seeking an order:

(1) That pursuant to s.20(2) and (3) of the Wrongs Act 1958 the limitation period be extended to allow the plaintiff to continue with the proceedings issued on 16 February 1999 or, in the alternative, to extend the time within which the plaintiff may commence proceedings against defendant 2, defendant 3 and defendant 4.

(2) That the application be heard together with defendant 2's application to have the plaintiff's proceeding dismissed.

44. The three Summonses were heard together, Mr O'Dwyer for the plaintiff proceeding first. The fourth defendant was not represented by counsel.

47. Section 20(2) of the Wrongs Act 1958 enables a person claiming to have a cause of action under Part 3 not commenced with six years after the death of a deceased person to apply to a court for an order that the period within which an action on the cause of action may be brought be extended for such period as it determines. The court, subject to sub-s.(3) may make the order "if it decides that it is just and reasonable so to do".

50. Sub-section (3) of s.20 is a mirror image of s.23A of the Limitation of Actions Act 1958. It reads as follows:

"In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following -

(a) the length of and reasons for the delay on the part of the deceased or the claimant or each of them (as the case may be);

(b) the extent to which, having regard to the delay, there is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the deceased or the claimant or each of them (as the case may be) mean of ascertaining facts which were or might be relevant to the cause of action of the deceased or the claimant or each of them (as the case may be) against the defendant;

(d) the duration of any disability of the deceased arising on or after the date of the accrual of the cause of action;

(e) the extent to which the deceased or the claimant or each of them (as the case may be) acted promptly and reasonably once he knew in relation to the injury that caused the death that the act or omission to which that injury was attributable might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the deceased or the claimant or each of them (as the case may be) to obtain medical legal or other expert advise and the nature of any such advise he may have received".

57. The word "delay" in sub-paragraph (a) and (b) of sub-section (3) of s.20 of the Act means the period from the accrual of the cause of action to the making of the application for an extension of time. Koumorou v. The State of Victoria [1991] VicRp 66; (1991) 2 VR 265 at 273; Repco Corporation Ltd v. Scardamaglia [1996] VicRp 1; (1996) 1 VR 1 at 11.

60. It was submitted by Mr Riordan of counsel who appeared for the Defendant 2 and Mrs Kenny of counsel who appeared for the Defendant 3 that a relevant circumstance of the case is the availability of a cause of action in negligence against the legal practitioner who delayed drawing an amended statement of claim for 18 months or the plaintiff's solicitors. In my opinion, it is not a relevant circumstance that the plaintiff may be able to recover "lost chance" damages from her lawyers if this application against the defendants fails. The circumstance that the plaintiff was not responsible in any manner for the delay in pursuing the claim against multiple defendants is a relevant circumstance. The reason for the delay does not reflect upon the plaintiff who acted promptly in giving instructions to her solicitors in March 1993. A writ against Defendant 1 was issued promptly by the plaintiff's solicitors.

63. In the Scardamaglia case, supra, the Full Court chose not to determine the question whether the existence of a possible cause of action by an applicant against his legal advisers was a relevant consideration under s.23A of the Limitation of Actions Act 1958. Phillips J, referred to a number of authorities which considered the relevance of alternative causes of action and reserved the question for a case where it could prove critical to the outcome of the application (p.15).

66. The plaintiff was not responsible for the dilatory conduct of her lawyers and, if she were unsuccessful in the action against Defendant 1, alone, damages in an action against her lawyers would be for the "lost chance" to recover damages against Defendant 2 and Defendant 3. The litigation would be drawn out for many years, a most unreasonable situation.

1. The case against the joined defendants, Defendant 2, Defendant 3 and Defendant 4. 2. The extent to which, having regard to the delay, there is likely to be prejudice to Defendant 2 and/or Defendant 3.

73. I shall consider first the case the plaintiff claims to have against Defendant 2 and Defendant 3. The language of s.20(2) of the Wrongs Act shows that a person is not required to prove at the threshold of the application that he has available evidence to support the proposed cause of action. A person only has to claim to have a cause of action. Previously, the law required an applicant to prove that there is evidence on which the claimed cause of action could be established at a trial. This is no longer the case. Taylor v. Western General Hospital [1986] VicRp 26; (1986) VR 250 at 253.

76. Mr Riordan submitted that the court should follow a recent decision of the New South Wales Court of Appeal - Dow Corning & Anor v. Paton (1988) Aust Torts Reports 65, 241. The appellant appealed against a decision in the District Court extending the limitation period to commence proceedings in negligence against two parties. The appeal was allowed. Mason P, who agreed in the leading judgment of Beazley JA, delivered a brief judgment in which he observed:

"The application is not the trial of the action. But the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced that demonstrate that the dilatory plaintiff has a real case to advance".

80. Beazley JA referred to a concession made by counsel for the appellants "that the relevant legislation (in NSW) did not, as a matter of statutory mandate, require an applicant for extension of time to adduce evidence of negligence, that is evidence of the existence of a cause of action or even evidence that evidence as available, or likely to be available for the purposes of the trial". Nevertheless, his Honour then proceeded to quote the following passage from an unreported decision of Badgery-Parker J (Elvines v. Herron 14 December 1995) with which he agreed.

"But whether there is evidence available to establish the cause of action will, at the least, be always a relevant consideration and in many a case the absence of such evidence must necessarily prove fatal to a contention that it is just and reasonable to extend the period".

84. The Court of Appeal took into account that the level of evidence adduced on behalf of the respondent was so minimal and in the case of Dow non-existent that an order should not have been made.

87. With the greatest of respect, I do not accept that the relevant legislation in Victoria requires an applicant to adduce evidence of negligence or to satisfy "an evidentiary and persuasive onus" or risk dismissal of the application.

90. This is no longer the law in Victoria. The plaintiff bears the legal onus of showing that in all the circumstances of the case it would be just and reasonable to grant an extension of time: Scardamaglia, supra.

93. However, I am satisfied that sufficient evidence is available to establish a prima face or arguable case in negligence against Defendant 2, Defendant 3 and Defendant 4.

96. On 6 May 1996 the Coroner made findings and recommendations into the death of the deceased. The "record of Investigation into Death" is a comprehensive report concerning the circumstances of the death of the deceased and the investigation into the cause. Mr Riordan and Mrs Kenny submitted that the findings of the Coroner are not admissible against Defendant 2 and Defendant 3 and the findings may not be used by a person claiming to have a cause of action.

99. I do not propose to rely upon the findings of the Coroner but I do propose to use the Coroner's report as a narrative providing information into the circumstances of the death. From the narrative it will be possible to determine whether the claim of the plaintiff to have a cause of action under Part 3 of the Wrongs Act against a person or persons may succeed or is hopeless.

102. The narrative refers to a number of reports from experts engaged by various authorities and parties. The experts' reports contain opinions about mechanical aspects of the cooker, the lid and the control mechanism in addition to aspects of the safety of the deceased's place of work, the safety of the plant and equipment he was required to use and the safety of the system of work. The reports deal with the case against Defendant 2, Defendant 3 and Defendant 4 and are admissible, in my opinion.

105. I shall summarise the accident briefly. The deceased was a cleaner employed by Defendant 1 since 1988. He was required to clean the cooker, known as a "Giusti cooker", from time to time. Defendant 1 purchased two Giusti cookers from Defendant 2 in 1986. The cooker involved in the accident had a "Quicklock" hydraulically operated locking mechanism manufactured by Defendant 3 and a cooking control mechanism supplied and installed by Defendant 4. The Quicklock mechanism was allegedly jointly installed by Defendant 1 and Defendant 3.

108. The cooker was designed to operate in atmospheric pressure with the lid open or under pressure with the lid-closed. When the cooker was pressurised two safety systems protected the lid against inadvertently opening should the "lid open" button be pressed. Modifications made to the safety systems by Defendant 1 without the knowledge of Defendant 2 were designed to improve safety.

111. The deceased probably filled the cooker with water to clean the internal area and closed the lid by pressing a lid-close button, designed to cause an automatic cam locking ring to activate and restrain the lid. Water was then heated under pressure. After heating was completed and as the water was cooling the deceased apparently pressed the lid-open button. Shortly afterwards, the lid burst open and steam and water flew out burning the deceased.

114. The narrative does not show that the deceased was guilty of contributory negligence.

117. A case of negligence against Defendant 1 is clearly available to the plaintiff upon the basis that the defendant employer was in breach of its duty to provide safe plant and equipment and a safe system of work. However, Defendant 1 could possibly escape responsibility for the accident by proving that another person or persons caused or contributed to the accident.

120. A consultant engineer (Robinson) examined the cooker after the accident on behalf of Defendant 1 and reported on 13 April 1993 and 30 October 1994. I propose only to refer to those parts of the reports which support the plaintiff's claim to have a cause of action against Defendant 2, Defendant 3 and Defendant 4.

123. The cooker's electrical control circuit was designed to protect against a "lid open" button operating the unclamping of the lid if the thermostat registered a temperature in the cooker of 98 degrees Celsius or above. A delay timer was installed by Defendant 1 after the cooker was wired to place a delay of two seconds between the lid lowering and the operation of the lid's locking lugs. This allowed the lid to seat properly before the lid's locking lugs commence to actuate.

126. However, examination of the cooker and its lid after the accident revealed that, if the operator released the lid-close button before the lid clamping operation was completed the lid would be incompletely clamped under pressure. The lid could open, as it did, venting boiling water under pressure. The mechanical system employed for closing and locking the cooker's lid required the operator to press the lid-close button until the lid-closed completely. Then, after a two second delay the lid's locking mechanism is hydraulically actuated and 20 locking lugs operate to clamp the lid until the lid open button is pressed.

129. The investigation made after the accident leads to the inference that the operator did not maintain pressure on the lid-close button for sufficient time to complete the lid closure operation.

132. In the opinion of Haas, another expert, a design fault in the electrical circuit configuration allowed incomplete lid closure to occur. A better and safer design would have allowed the clamping operation to have been completed automatically when the lid-close button is pressed and not be dependent on finger pressure being maintained by the operator.

135. Inspection of the cooker by the investigators after the accident did not reveal fault in the lid-open button.

138. The cooker was ordered by Defendant 1 from Defendant 2 in 1985 and supplied in June 1986. Defendant 2 manufactured the cooker. The Quicklock hydraulically operated locking mechanism was manufactured by Defendant 3 and installed on the cooker by Defendant 1 and Defendant 3. The cooking control mechanism was supplied and installed by Defendant 4. Defendant 1 modified the cooker in several ways that are not important to the current applications.

141. If the lid-close mechanism had a design fault, as some of the experts opine, blame may be fixed on one or more of the defendants.

144. The narrative of the Coroner and the reports exhibited to the affidavit of John Wycherley sworn 14 May 1999 and marked "JW1" provide cogent evidence that the plaintiff has a claim in negligence against the four defendants. It would be imprudent for the plaintiff not to proceed against the three added defendants.

147. No doubt, if there are multiple parties contribution claims will commence between the defendants.

150. I reject, therefore, the submissions of Mr Riordan and Mrs Kenny that the allegations I have canvassed do not show there was a relevant defect in the cooker which may be attributable to the negligence of one or both of their clients and was a cause of the accident. The evidence I have canvassed in relation to the manufacture and design of the cooker, including the Quicklock lid locking mechanism and the electrical circuitry concerns all the defendants and I am persuaded the plaintiff has an arguable cause of action against all the defendants based upon a design fault in the cooker.

153. The next important issue is the assertion of Mr Riordan and Mrs Kenny that their respective clients have suffered serious prejudice by delay from accrual of the cause of action to the date of the application, 30 March 1999, approximately six years. I note that Defendant 2 was made aware of the accident involving a Giusti cooker in March 1995 and was represented by lawyers during the coronial inquiry in May 1995. I also note that Defendant 3 was also made aware of the accident in March 1995 and that a Quicklock lid locking mechanism fitted to a Giusto cooker was under investigation. I also note that the Giusti cooker involved in the accident is available today and may be inspected by the defendants and their experts as they require.

156. A summary of matters prejudicing Defendant 2 in defending the claim begins with an assertion that because the cooker was designed and manufactured in 1986 in accordance with the instructions and specifications, both oral and in writing, persons involved have retired from the company or have incomplete memories.

159. No doubt this is so but the position of Defendant 2 would have been the same had the writ been issued in 1993, seven years after the cooker was designed and manufactured. The evidence did not show that essential witnesses have died since 1993 or that company records have been destroyed or gone missing. Two years after the accident Defendant 2 was alerted to the accident and was put on guard that it may be blamed, in part at least, for it.

162. The circumstances that thorough examinations of the cooker were conducted soon after the accident and that the cooker is still available for further examination are important and diminish the prejudice flowing to the second defendant by delay.

165. Mr Riordan submitted that prejudice is occasioned by delay affecting contribution rights between joint tort feasors. Unlike the position in Wintle v. Conaust (Vic) Pty [1989] VicRp 84; (1989) VR 951, prejudice to the defendants will not be occasioned by delay affecting contribution proceedings. The Wrongs Act 1958 which regulates the time within which contribution proceedings may be brought by one tort feasor against another presently allows each defendant to claim contribution from another defendant.

168. Mrs Kenny submitted that the plaintiff must establish that the extension of time will not result in significant prejudice to the prospective defendant, relying upon passages in the judgments of Dawson J and Toohey and Gummow JJ in Brisbane South Regional Health Authority v. Taylor [1996] HCA 25; (1996-1997) 186 CLR 541 at 544 and 548-549. The decision in Brisbane was based upon a Limitation of Actions Act 1974 Q, an Act very different to the current Victorian legislation (s.23A Limitation of Actions Act 1958). In the Victorian legislation "the extent to which, having regard to the delay, there is likely to be prejudice to the defendant" is a relevant circumstance for the court to have regard to along with other matters. I do not consider that a party seeking an extension of time under s.20(2) of the Wrongs Act is required to prove specifically that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant. The likelihood of prejudice to the prospective defendant must be considered along with other circumstances.

171. The discretion conferred upon the court considering an application for an extension of time requires an applicant to persuade the court that it is just and reasonable to make the order. Bell v. SPC Ltd [1989] VicRp 15; (1989) VR 170.

174. The matters of general prejudice relied upon by Mrs Kenny were the same as those relied upon by Mr Riordan. Two matters of specific prejudice were raised by Mrs Kenny. In an affidavit made by Paul Gadsby on 17 May 1999 on behalf of Defendant 3 Mr Gadsby said that he was a draughtsman when Defendant 3 contracted with Defendant 2 in December 1995 to supply a Quicklock mechanism and other parts for a pressure cooker to be built by Giusti. The contract was conducted by the sales engineer, Joe Wallace, who died in 1998. Mr Gadsby said that no-one had as much knowledge of the terms of the engagement as Joe Wallace.

177. It is unfortunate that Joe Wallace is unavailable but the prejudice caused to Defendant 3 is not substantial, in my opinion. In 1985/86 Defendant 3 manufactured and supplied Quicklock lid closing mechanisms in the course of its business. The Quicklock made and fitted to the Giusti cooker was probably one of many produced by Defendant 3. The terms of the contract between Defendant 2 and Defendant 3 in 1985 are not likely to be of critical importance at the trial of this proceeding.

180. The second matter peculiar to Defendant 3 is uncertainty about the availability of indemnity insurance. The material relied upon in Mr Gadsby's affidavit does not state that insurance indemnity is unavailable, it simply indicates that the insurer has not yet made a decision of its attitude. No doubt, if there is a dispute between Defendant 3 and its insurer, a proceeding will be commenced in the UK.

183. The question is whether in these circumstances the court should exercise its discretion in favour of the plaintiff or refuse the application. The following circumstances weigh in favour of making an order extending time.

1. The delay is six years two months, not an inordinate period of delay giving rise to an inference of prejudice. 2. The plaintiff is not guilty of delaying the commencement of the proceeding against Defendant 2, Defendant 3 and Defendant 4. Delay was outside her control and, probably, her knowledge. 3. The matters of prejudice, general and specific, raised by Defendant 2 and Defendant 3 are not, in my opinion, substantial having regard to what I perceive will be the ambit of the issues to be determined at trial. 4. The case available to the plaintiff is compelling and far from hopeless. Without the recently joined defendants the plaintiff's case will be less secure.

187. In all the circumstances I am of the opinion that it is just and reasonable to extend the time within which the cause of action against Defendant 2 and Defendant 3 may be brought be extended to 30 June 1999.

190. I consider that the plaintiff should deliver a further amended statement of claim upon each of the defendants and the appropriate endorsement required by Rule 7.02 of the rules must be placed on the document.

193. Mrs Kenny sought leave to withdraw the appearance of Defendant 3 or to amend it to a conditional appearance for the purpose of an application to set aside service of the Writ. In my opinion, leave should not be given as it would be a futile exercise. A Victorian court has jurisdiction to hear this proceeding for the alleged tort occurred in Victoria and the plaintiff and the first defendant reside within the jurisdiction. This court is the most convenient forum.

1. On the summons dated 23 March 1999 the summons will be dismissed.

2. On the summons dated 22 April 1999 the summons will be dismissed.

3. On the summons dated 30 march 1999 the time within which the plaintiff may commence proceedings against the second, third and fourth defendants is extended to 30 June 1999.

4. That the plaintiff serve a further amended statement of claim upon each of the defendants, appropriately endorsed as required by Rule 7.02 of the rules, such service may be effected upon the solicitors on the record of each defendant.

5. That no further appearance by each defendant will be necessary.

6. That the time for delivery of a defence will be within 30 days after service of the further amended statement of claim.

205. As to costs, I consider the appropriate order will be that the costs of each party before the court be costs in the cause.