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- Unreported Judgment
Smallman v Woolworths Group Limited QDC 17
DISTRICT COURT OF QUEENSLAND
Smallman v Woolworths Group Limited  QDC 17
WOOLWORTHS GROUP LIMITED
DEMATIC PTY LTD
District Court at Brisbane
20 February 2019
17 December 2018
McGill SC, DCJ
(Publication of reasons)
LIMITATION OF ACTIONS – Extension of time – whether material fact of a decisive character – identification of decisive material fact – whether reasonable not to have taken steps to ascertain previously – time extended.
Limitation of Actions Act 1974 s 31(2).
Beer v State of Queensland  QDC 14 – cited.
Bradford v Darling Downs Bacon Co-operative Association Ltd  QCA 404 – cited.
Healy v Femdale Pty Ltd  QCA 210 – cited.
Maguire v Plumbing Industry Group Training Scheme Inc  QCA 248 – cited.
Muir v Franklins Ltd  QCA 173 – cited.
K Roche for the applicant
D Atkinson QC for the second respondent
Nathan Lawyers for the applicant
Barry Nilsson as town agent for Kennedys Solicitors for the second respondent
- This was an application under the Limitation of Actions Act 1974 (“the Act”) for an extension of the period within which the applicant may commence a proceeding against the second respondent in respect of injuries the applicant alleges that he suffered on 18 March 2015. The application was resisted by the second respondent, but on the hearing date, after the cross-examination of the applicant and hearing argument, I ordered that the applicant’s period of limitation to commence a proceeding against the second respondent be extended so that it expires on 19 July 2019. I also made an order for costs. I said at the time that I would give reasons for that order in due course. These are those reasons.
- The applicant worked as an employee of the first respondent at a warehouse in Larapinta from October 2013 as an order selector: p 12. His job was to assemble orders of goods to be sent from the warehouse to particular stores. This involved filling pallets which were carried on a kind of forklift which he drove from site to site within the warehouse: p 19. He received instructions as to where to go, and what to load onto the pallets, from a computer which would direct him to a particular site within the warehouse, and tell him what quantity of whatever it was that was available there was to be loaded: p 20.
- If at a particular location the instruction was to take more boxes of the particular product from that location than were available on the accessible pallet of boxes, the applicant would take what was available, and then, after informing the control system of what was going on, could obtain access to a full pallet of the relevant boxes by pulling a lever which would cause the empty pallet to drop down and be removed, and, after the lever was restored, the next full pallet moved forward and the balance of the required quantity was collected: p 20. Once the applicant had done this, he was given his next site and quantity.
- The applicant alleges that on 18 March 2015 while doing his work this situation arose, and after he had emptied the pallet, when he pulled the lever the mechanism malfunctioned and he suffered an injury. The applicant reported what had happened to his supervisor, and later that day stopped work because of the injury. He applied for workers’ compensation on 23 March 2015, and that was received. He returned to full duties on about 9 May 2015, but something similar happened on 10 December 2015 which stirred up his symptoms, and he again applied for compensation which was received. On 7 March 2018 he signed notices of claim for damages against the first respondent, his employer in respect of each of the injuries, and the first respondent has accepted that he has given compliant notices.
- On about 20 July 2018 the applicant’s solicitors received from the first respondent’s solicitors a copy of a contribution notice issued by the first respondent against the second respondent. The applicant said that this was the first that he was aware that the first respondent was alleging that it was the responsibility of the second respondent to service and maintain the mechanisms the malfunction of which he alleged had caused his injuries. By this time, the limitation period in respect of any claim against the second respondent had expired. On 3 August 2018 he signed a notice of claim under the Personal Injuries Proceedings Act 2002 directed to the second respondent in respect of each of his injuries. The solicitors for the second respondent took the point that the limitation period had expired, and did not consent to an extension of the limitation period. Hence this application.
- Section 31(2) of the Act provides that the court may order that the period of limitation for a claim for damages for personal injury be extended so that it expires at the end of one year after the date that a material fact of a decisive character relating to the right of action was within the means of knowledge of the applicant. It is necessary for the applicant to show that there is evidence to establish the right of action apart from any defence founded on the expiration of the period of limitation, but there was no issue raised before me that that aspect of the matter had been satisfied. It is also necessary to show that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the commencement of the year preceding the expiration of the period of limitation for the action. In the present case, in respect of the earlier injury, that meant after 18 March 2017. Whether a material fact is of a decisive character depends on the test in s 30(1)(b) of the Act: in essence, those facts showing that an action would be worthwhile and the potential applicant ought to bring such an action. Whether a fact is within the means of knowledge of the person at a particular time depends not only on whether the person actually knows the fact, but also on whether the person has taken all reasonable steps to find out the fact before that time: s 30(1)(c).
- In his affidavit the applicant swore that prior to receiving the contribution notice he had no knowledge that the relevant machines were supplied, serviced and maintained by the second respondent. The second respondent sought to dispute this proposition, on the basis that it had employees working within the warehouse, who wore uniforms which identified them to a business “Dematic,” inspecting, servicing and repairing the relevant pieces of equipment within the warehouse; that this occurred within the sight of the first respondent’s employees including those doing the sort of work the applicant was doing; and that in these circumstances it must have been obvious to someone in the position of the applicant, particularly someone who had worked in the warehouse for some years, that people associated with the business called “Dematic” were in fact undertaking whatever inspection, care and maintenance the relevant machines were in fact receiving.
- It seems to me however that the mere fact that it may have been obvious that people associated with that business were the ones who did work on the machines when work was in fact done on them was not an answer to the application, because that was not really the material fact. What was material in the circumstances of the applicant’s situation was the fact that by the terms of the contract between the first and second respondents, the second respondent had undertaken to the first respondent the responsibility of maintaining these machines in good working order. This was significant in two respects.
- First, it would be material to the existence of a duty of care owed by the second respondent to the applicant, for the second respondent to have undertaken this responsibility in respect of the proper functioning of the machines, rather than simply being someone who repaired machines once they had been shown to be defective; in the latter case it would be necessary for the applicant to show that the second respondent had carried out work on the relevant machine and had undertaken that work negligently, with the result that he had suffered his injuries, before there would exist a cause of action for negligence against the second respondent. In other words, the scope of the obligation undertaken by the second respondent in respect of these machines is relevant to what has to be proved against it in order to show a cause of action for damages for negligence.
- There is a further aspect to the significance of the terms of the contract. The first respondent as employer owed a non-delegable duty of care to the applicant as its employee, relevantly, to take reasonable care to provide the applicant with safe plant and equipment with which to work. The mere fact that someone like the second respondent undertakes repairs, when asked to do so, on the machines in the first respondent’s premises does not mean that the first respondent has discharged its duty of care to the applicant to provide safe plant and equipment. On the other hand, if an apparently competent specialist contractor has undertaken contractually to the first respondent to maintain the relevant machines, presumably to maintain them in good working order so that, relevantly, they did not present a danger to employees using them, it could be argued by the first respondent that it had in this way discharged its non-delegable duty of care to the applicant, and so was not negligent and therefore not liable in respect of any injuries in fact suffered by the applicant as a result of the malfunctioning of the machines.
- If that is the situation, it becomes relevant for the applicant to consider not just whether there exists a cause of action against the second respondent, but whether he ought in his own interests bring an action on that cause of action. This is because in such a situation he cannot safely rely on the cause of action against the employer. Hence it is not the mere fact that there was another company which did work on the machines that is really the material fact of the decisive character; rather it is the content of the contract between the first and second respondents, and the fact that that extended to an obligation to maintain the machines, presumably in good working order, and hence to keep them safe for the first respondent’s employees to use. Then it becomes relevant for the application to consider whether it is appropriate to be looking for someone other than the first respondent to sue in respect of his injuries.
- Hence the issue is not really whether it ought to have been obvious that the second respondent was doing things on the machines, but whether the terms of the contract between the first and second respondents, and in particular the extent of the second respondent’s obligation in relation to the machines, is something that ought to have been within the means of knowledge of the applicant at the relevant time. Whether, had an enquiry been directed to the first respondent prior to the receipt of the claim, the first respondent would have disclosed the relevant aspects of the terms of the contract cannot be known, but it can safely be assumed that, even if a person in the position of the applicant ought to have been aware that the second respondent’s employees were working on the machines, there is no reason to think that he would have been aware of the terms of the contract between the respondents, even in general terms. That in my view is the real material fact of the decisive character, and I accept that it was not in fact known to the applicant prior to his seeing the contribution notice.
- The other aspect of the matter is whether, prior to that time, the applicant had taken all reasonable steps to ascertain that fact. The question of what is reasonable has to be assessed by reference to the situation and circumstances of the individual applicant, and, although it is to be assumed that the applicant has taken relevant advice, the question of what are reasonable steps to find out the relevant fact depends on whether the applicant had any reason to be concerned to investigate the issue. If there is no reason for an applicant to investigate a particular issue, it is reasonable for the applicant not to investigate it. It has long been established that in the context of an application of this nature, and the question of whether the test in s 30(1)(c) has been satisfied, that there is no requirement to take advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the applicant to have done so.
- I do not consider that it was reasonable for the applicant to be concerned to investigate the question of whether there was anyone other than the employer who was liable for his injuries until the issue was raised by the first respondent in the contribution notice. In these circumstances it cannot be said that prior to that time there had been a failure on the part of the applicant to take all reasonable steps to ascertain the relevant material fact.
State of applicant’s knowledge
- In these circumstances, the issue particularly contested in cross-examination, namely the extent to which the applicant realized while he was working in the warehouse that there were people from Dematic working on the relevant machines, is not in my opinion of crucial importance. Nevertheless, the matter having been litigated, I should make a finding on the issue, if only on the precautionary basis.
- The applicant said that problems can arise from time to time with these machines, and if he encountered a problem with one the practice was that he would advise his team co-ordinator, who would refer that matter to someone else: p 13. He had seen someone come to inspect the machine afterwards, but he claimed that he had never seen anyone actually repairing one of these machines in the warehouse: p 14. Later he said that he could not recall having seen any of the first respondent’s staff doing any work on the machines: p 16. He had some recollection of seeing shirts with the word “Dematic” on people in the warehouse, and he had seen on the first floor something which he thought was a store which had the word “Dematic” on it: p 15. He was not aware of the machines being taken to that area from time to time: p 15.
- The applicant agreed that he had seen Dematic people looking at these machines if they had a fault, and was aware that they would be the ones to do that: p 15. He said however that he was not aware of the arrangements between them and Woolworths, if any, or whether Dematic had a contract to maintain the machines: p 15. He said that when someone operates the machine you can see a gas strut on each side which controls the lowering of the platform which supports the palette: p 25. He understands that it is possible for one or both of these struts to be missing or lose, and in that situation the machine does not operate properly, but from his point of view if the machine does not operate properly his responsibility was to tell his team co-ordinator: p 25. The applicant conceded that he did not take any steps in December 2015 to ascertain what role Dematic had: p 27.
- The respondent read affidavits by two employees. One was the Queensland Service Manager of the second respondent who said that the service and maintenance work on the machines was carried out by the second respondent’s employees in clear sight of the order selectors employed by the first respondent. The other was by trade assistance who worked at the same warehouse as the applicant, and who said that repairs on the machines were carried out in the sight of the first respondent’s order selectors. He also referred to an incident when the applicant spoke to him about a machine, at the end of which he said the applicant made a derogatory comment about him. The applicant denied the disparaging remark (p 17), but agreed with some other parts of the conversation: p 16. I do not consider that it is necessary for me to resolve this conflict.
- What was put to the applicant was that the machines were repaired in the warehouse by the second respondent’s employees, and he said he was not aware of that: p 14. It was also put that there was a workshop on the first floor of the warehouse, and the applicant was aware of the facility, but thought it was a store: p 15. He was not aware that machines were from time to time taken to that facility: p 15, p 17. The facility was not referred to in the second respondent’s affidavits, but if it was enclosed, anything done there would not have been in the sight of the first respondent’s employees.
- It was submitted for the second respondent that the applicant must have been aware that the second respondent serviced the relevant machines, as a result of his knowledge of the presence of staff associated with Dematic on the premises and the fact that they were seen to be inspecting the machines once something went wrong. It is true that the applicant was aware of the presence of such staff on the premises and that they inspected the machines, though he said he was not aware of their actually doing work on the machines, or taking the machines to a particular area associated with Dematic where work was done on them. His position seems to be that he just did not pay attention to what was going on to that extent. He explained that people doing his work were on a time limit, that is (I assume) that they were required to do a certain number of pickups per hour, and that as a result when he was working he was largely concentrating on doing his job. That is understandable, and I do not find it surprising that someone in his position would have that attitude.
- Specifically, it was not established in cross-examination that he was aware that Dematic personnel serviced or repaired the machines, or that he was aware of the relationship between that company and the first respondent; I am prepared to accept that he was aware that they did not work for the first respondent directly, or that such information was within his means of knowledge. In general, I accept the evidence of the applicant. No good reason has been shown not to do so, and having seen him in the witness box, his evidence struck me as plausible.
- One other point was made in the written outline, though it was not developed orally: that the applicant had not explained the delay between suffering the injuries and giving the notice of claim in March 2018. Further, the applicant was not cross-examined on this. In circumstances where there was no evidence of prejudice to the second respondent if the limitation period was extended, and where prejudice was not relied on in submissions, I do not think this is a matter of significance. Effectively the matter proceeded on the basis that, as stated in paragraph 14 of the second respondent’s outline, if the court accepted the applicant’s version of events he would succeed.
- For these reasons, on 17 December 2018 I made the order sought by the applicant.
 Affidavit of applicant para 3.
 Ibid, Exhibit KS1.
 Ibid para 4, Exhibit KS2.
 Ibid para 6, 8.
 Ibid para 9.
 Ibid para 12.
 Ibid para 13, 14.
 Ibid para 20.
 For a fuller analysis, I adopt what I said in Beer v State of Queensland  QDC 14 at +.
 Affidavit of applicant para 12.
 The uniforms were not very different from what was worn by the employees of the first respondent: Affidavit of Corbo Exhibits TC2, TC3. But the applicant was aware of the difference: p 14.
 Strictly speaking I have assumed that for the purpose of this application. The agreement between the respondents was not exhibited to the second respondent’s affidavits, but it extended to an obligation to inspect the machines every three months, as well as attending to problems as they arose: Affidavit of Corbo para 8.
 The applicant denied he was aware of the arrangement between the respondents: p 15.
 Healy v Femdale Pty Ltd  QCA 210 at p 5; Bradford v Darling Downs Bacon Co-operative Association Ltd  QCA 404 at ; Muir v Franklins Ltd  QCA 173 at ; Maguire v Plumbing Industry Group Training Scheme Inc  QCA 248 at .
 Affidavit of Corby para 9(b).
 Affidavit of Aliphon para 8.
 Ibid, paras 10 – 24.
 Transcript p 18 line 5; p 19 line 2; p 20 line 7.
- Published Case Name:
Smallman v Woolworths Group Limited
- Shortened Case Name:
Smallman v Woolworths Group Limited
 QDC 17
20 Feb 2019