New South Wales Supreme Court CITATION : Arcuri v Dalma Formwork Pty Limited & Ors [2001] NSWSC 219 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20559 of 1999 HEARING DATE(S) : 23 March 2001 JUDGMENT DATE : 29 March 2001 Peter Arcuri (Plaintiff) v PARTIES : Dalma Formwork Pty Limited (First Defendant) Laurence John Woodley (Second Defendant) Walter Construction Group Pty Limited (Third Defendant) Target Steel Fixing Pty Limited (Proposed Fourth Defendant) JUDGMENT OF : Master Malpass Mr G Hickey (Plaintiff) COUNSEL : N/A (First, Second and Third Defendants) Mr J Sewell (Proposed Fourth Defendant) Carroll & O'Dea (Plaintiff) SOLICITORS : Hunt & Hunt - Amicus Curiae (First and Second Defendants) N/A (Third Defendant) John Sharpe (Proposed Fourth Defendant) CATCHWORDS : Leave to commence common law proceedings - discretionary considerations - sufficiency of explanation for delay. LEGISLATION CITED : Workers' Compensation Act 1987, s 151D (2). CASES CITED : N/A DECISION : See Paragraph 21. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS THURSDAY 29 MARCH 2001 20559 of 1999 PETER ARCURI v DALMA FORMWORK PTY LIMITED & ORS JUDGMENT 1 Proceedings were commenced by Statement of Claim filed on 7 December 1999. The process was amended by an Amended Statement of Claim filed on 16 December 1999. 2 The plaintiff was injured in a work incident that took place on 22 March 1997. A fork lift vehicle was driven into and over the body of the plaintiff whilst he was working at a construction site at Broadway. 3 Presently, there are three defendants. The plaintiff now wishes to add a fourth defendant (Target Steel Fixing Pty Limited), who was his employer at the time of the incident. He seeks leave to file a Further Amended Statement of Claim. He seeks relief under s 151D (2) of the Workers' Compensation Act 1987 (the Act). 4 The Notice of Motion was filed on 21 July 2000. The application is opposed. The plaintiff himself has sworn two affidavits. He has been cross-examined. His solicitor (Mr Concannon) has sworn three affidavits. There has been a tendering of documentary material (Exhibit A). A solicitor for the proposed fourth defendant (Mr Sharpe) has sworn an affidavit. 5 The proposed fourth defendant has been wound up and was deregistered. There has been a reinstatement. Recently, it has been disclosed that its insurer is in financial straits. 6 The explanation offered for the delay in joining the proposed fourth defendant starts with some conflicting material. The plaintiff himself said that prior to 28 February 2000 he had adopted the view that his employer had minimal involvement in the circumstances of the work incident. His solicitor attributes it to a reluctance to make a decision on the question of making an election. The plaintiff further says that since 28 February 2000 he has left the matter in the hands of his legal advisers. 7 In one of the affidavits sworn by Mr Concannon, reference is made to a conference held with senior counsel on 28 February 2000. It appears that at that time there was some concern as none of the three existing defendants had admitted liability. At the conference, a decision was made to join the proposed fourth defendant. One of the affidavits sworn by Mr Concannon details matters which are put forward to explain how it came to pass that it is now necessary to bring the present application (including acting on advice said to be received from a Deputy Registrar and other activity which could be seen in the light of misadventures). 8 The plaintiff's present legal advisers have been acting since about two weeks after the incident. The relevant limitation period expired during March 2000. 9 The court has a discretionary power to grant the relief sought by the plaintiff. It is exercised having regard to the provisions of the Act and the relevant circumstances of the particular case before the court. The court is concerned with what best serves justice between the parties. The applicant bears the onus of satisfying the court of an entitlement to relief. 10 In this case, in opposing the application, the proposed fourth defendant agitates four discretionary considerations. Firstly, it says that the plaintiff has no viable cause of action against it. Secondly, it points to the delay that has ensued since the date of the incident. Thirdly, it says that the delay has not been sufficiently explained. Fourthly, it says that the delay has occasioned prejudice. 11 I shall now deal with the first question. The plaintiff says that the proposed fourth defendant has a non delegable duty as his employer to provide a safe work place. 12 The first defendant was the owner of the fork lift. The second defendant was the driver. The third defendant was the head contractor at the site. The proposed fourth defendant was a sub-contractor. 13 At the time of the incident, the plaintiff had completed work for the day. He was in the process of leaving the site and was en route to picking up his car. The car was parked in a street nearby. The incident took place in a hallway in a building. This was not an area in which he was working. 14 The plaintiff knew that fork lifts were used on the site and that there was a need to be careful. He accepts that he didn't need a warning not to walk in front of a fork lift. He attributes the accident to the fork lift driver not keeping a proper look out. Fork lift vehicles were prohibited from being in the area where he was in fact struck. 15 In an interlocutory application such as the present one, the court has but limited material before it concerning the incident. It does not have the advantage had at a trial and this is a claim in negligence (which the courts are loath to dismiss summarily). In the light of the limited material and the particular circumstances of this case, I take the view that the court is not in a position to conclude that the proposed course of action is hopeless or doomed to failure. It may not be a strong case. It may be that the proposed joinder is more in the nature of a precautionary measure. In any event, it does not seem to me that the proposed joinder could be regarded as a futile exercise. 16 I now turn to the questions of delay and the explanation offered for that delay. The court has regard to what has ensued since the incident. It took place on 22 March 1997 (about four years ago). 17 The proposed fourth defendant takes the stance that what is offered to explain the delay falls well short of what may be regarded as either full or satisfactory. What should be offered is an explanation that is sufficient in the particular circumstances of the case before the court. What has been offered does have deficiencies. In the main, it provides detail of what was done by the solicitor, during the time that elapsed following the decision to sue the employer, to come to grips with the various problems confronting the prosecution of that claim. It is short on specific detail. It could not be said that what was done saw an effective use of the time that elapsed. The term "satisfactory" was not apposite to the attempts to resolve the problems. However, the deficiencies must be seen in the light of the other relevant circumstances. 18 On the question of prejudice, the proposed fourth defendant looks to a number of matters. The construction site is no more. A shopping centre has been erected upon it. The evidence is lacking in precision as to when this came to pass. However, there are photographs. A potential witness (Mr Doualetas) has left Australia. He was the first person on the scene following the incident. He had been with the plaintiff shortly before the incident. There is material which suggests that he now lives in Greece and is at least willing to return to give evidence on behalf of the plaintiff (if his expenses are paid). The proposed fourth defendant does have a statement from both this person and the plaintiff. The material suggests that there are two independent eye witnesses who saw the plaintiff inter alia running, slipping and falling prior to the incident. The material does not identify these witnesses. Counsel for the fourth defendant has said from the Bar Table that his client does not know the identity of these witnesses. His client has not put evidence to that effect before the court. Whether or not these witnesses can or can not be identified is, on the evidence, a matter of conjecture. 19 The proposed fourth defendant has conducted its own investigation as to the circumstances of the incident. This investigation was directed towards its rights of recovering against third parties as opposed to any question of negligence being directed against it. It produced inter alia the two statements earlier referred to. The incident has been investigated also by WorkCover and a copy of its accident report is available. The insurer has had the plaintiff medically examined by its own doctors and the plaintiff has served medical reports upon it. 20 In the circumstances of this case presumptive prejudice can be said to arise from the delay itself. There is the possibility of some actual prejudice. However, I am of the view that a fair trial can still take place. 21 In my view, the relevant onus has been discharged. It seems to me that in the particular circumstances of this case, justice is best served if leave is granted and I so order. Further, I order that the plaintiff have liberty to add the proposed fourth defendant as a party to the proceedings and to file the proposed Further Amended Statement of Claim. I direct that the Further Amended Statement of Claim be filed within 28 days. The plaintiff is to pay the costs of the application. The Exhibit may be returned. ********** Last Modified: 04/02/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.