Limitation extension: adding a third party as a defendant

Anderson v Gofish Pty Ltd & Ors [2017] QSC 30

The plaintiff sustained catastrophic injuries on 7 December 2011 when he sustained an amputation of right arm above the elbow and his right leg through the hip.

In a twist on the usual application to extend the limitation period, the plaintiff sought to join as a defendant, the third party Trades Employment Services QLD Pty Ltd (TES). The second, third and fourth defendants were members of a joint venture (Synergy JV) for realignment works on the Bruce Highway near Cooroy, where the plaintiff sustained his injuries and had joined TES.

TES was engaged by Synergy JV to provide labour hire to the site and in particular, a supervisor Paul Pulkkimen was supplied to supervise the unloading of the parapets.

The plaintiff alleged that Synergy JV controlled the site and directed him where to park for the parapets to be unloaded by mobile crane. The plaintiff alleged that while stowing the chains used to secure the parapets, the mobile crane continued to unload causing a parapet to fall onto the plaintiff.

The several defendants had completed the pre-proceedings under the respective Personal Injuries Proceedings Act 2002, Motor Accident Insurance Act 1994 and Workers’ Compensation and Rehabilitation Act 2003. TES participated as a contributor in the compulsory conference.

The material fact the plaintiff alleged that was not within his knowledge until 26 February 2016 was that Synergy JV would allege “…that TES as a contractor, based on the terms of its contract, was responsible for the plaintiff’s injuries and loss”. The plaintiff alleged that until that was disclosed this was unknown. TES responded that it was always known there was a contract for labour hire and that a review of the disclosed material by October 2014 would have caused a reasonable person to conclude such a cause of action existed against TES as the employer of Paul Pulkkimen.

Boddice J considered s.31 of the Limitation of Actions Act 1974 and the settled authorities and found that prior to the disclosure, the other material, including a statement from Synergy JV’s supervisor Geoffrey Hill, referred to Paul Pulkkimen as in effect Synergy JV’s supervisor:

[48] Whilst a consideration of that material could have caused a reasonable person in the plaintiff’s position to conclude that TES may be a party liable for the actions of the supervisor provided by it to the site, I am not satisfied a consideration of that material as a whole should have caused a reasonable person in the plaintiff’s position, having received appropriate legal advice, to conclude that a proceeding brought against TES, would have a reasonable prospect of success and result in an award of damages sufficient to justify the bringing of that action.

[49] The material as a whole supported the reasonable conclusion that the TES supplied supervisor was at all times acting under the direction and supervision of the Synergy JV’s structures supervisor.

[50] Whilst the documentation referred to Pulkkimen as a “TES employed site supervisor” hired “to organise unloading of trucks” and stated that Pulkkimen directed the plaintiff where to park and further noted there was no evidence Pulkkimen had been trained in risk management processes, that no exclusion zone had been established by him and that Pulkkimen was not exercising proper control of the site, Pulkkimen in his own statement asserted that he was employed to assist the Synergy JV superlight structure supervisor, was given work instructions by Synergy JV’s structures supervisor and took his directions and instruction from that supervisor. Synergy JV’s structures supervisor, Geoffery Hill, also gave a statement to the effect that he gave directions and instructions to the entire workforce including the TES supplied supervisors. Synergy JV’s own incident report referred to Pulkkimen as Synergy JV’s structures supervisor.

[51] Whilst one of the investigation reports specifically referred to there being no evidence the TES’s employed site supervisor had been trained in risk management processes, a consideration of the material as a whole, including the statement from Synergy JV’ own structures supervisor, would not have caused a reasonable person in the plaintiff’s position, having taking appropriate advice, to conclude proceedings against TES were likely to result in an award of damages sufficient to justify the bringing of such proceedings. The preponderance of evidence supported the conclusion that Synergy JV was responsible for the overall supervision of the TES supplied supervisor who was supplied by a labour hire company providing some part of the workforce to Synergy JV.

His Honour was satisfied there was a cause of action, that a fair trial could be had and there was no prejudice to TES. The application was granted.

David Cormack – Brisbane Barrister & Mediator

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