Blaskovic v ABB Engineering Construction

[2001] NSWSC 1008

Reported Decision: [2001] NSWSC 1008
[2001] ACL Rep 260 NSW 9

New South Wales

Supreme Court

CITATION:	Blaskovic v ABB Engineering Construction & Ors [2001] NSWSC 1008
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20858 of 1997
HEARING DATE(S):	7 November 2001
JUDGMENT DATE:	9 November 2001
PARTIES :	Jakov Blaskovic by his tutor The Protective Commissioner for The State of New South Wales (Plaintiff) v ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) (First Defendant) Regal Scaffolding Pty Ltd (Second Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr J Clyne (Plaintiff) N/A (First Defendant) Mr G Wilson (Second Defendant) Mr M Fordham (Proposed Third Defendant)
SOLICITORS:	Turner Freeman (Plaintiff) Moray & Agnew (First Defendant) Dennis & Company (Second Defendant) Coleman & Greig (Proposed Third Defendant)
CATCHWORDS:	Application to add a third defendant and amend Statement of Claim - delay and explanation for delay.
LEGISLATION CITED:	N/A
CASES CITED:	N/A
DECISION:	See Paragraph 17.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

20858 of 1997
Master Malpass
FRIDAY 9 NOVEMBER 2001

Jakov Blaskovic by his tutor The Protective Commissioner for The State of New South Wales v ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) & Ors

Judgment

: The proceedings were commenced by Statement of Claim filed on 22 September 1997. The plaintiff suffered severe personal injury in a work incident that took place on 5 October 1994. The injury was suffered when the plaintiff fell whilst descending from scaffolding (via a ladder) at a Shell oil refinery site at Clyde. He brings a claim for damages arising out of that personal injury.

2 Two defendants were named in the Statement of Claim. The first defendant was his employer. The second defendant had erected the scaffolding. In June 2001, the second defendant brought a Cross-Claim against Shell Australia Limited (the proposed third defendant).

3 On 22 June 2001, the plaintiff filed a Notice of Motion. It seeks leave to file an Amended Statement of Claim which joins the proposed third defendant as a party to the proceedings. The proposed amended process seeks to proceed against the proposed third defendant both as occupier of the premises upon which the injury took place and as the head contractor.

4 The application was heard on 7 November 2001. It was supported by an affidavit of Terence Louis Goldberg (the solicitor for the plaintiff). It has a number of exhibits. This was the only evidence placed before the court.

5 Not surprisingly, the existing defendants consent to the application. It is opposed only by the proposed third defendant.

6 The proposed third defendant opposes the application on the grounds of delay and lack of explanation for the delay.

7 The proceedings have now been on foot for about four years. The incident itself took place about 7 years ago.

8 The proposed third defendant is now a party to a Cross-Claim. As things presently stand it can expect that it may be involved in any hearing of the proceedings.

9 The evidence offered to explain the delay is parsimonious. Largely, it is to be found in paragraph 11 of the affidavit of Mr Goldberg. It is in the following terms:-

“In acting on behalf of the plaintiff, the first knowledge that I had of the matters set out in paragraphs 8 and 9 of the first cross-claim was when I received these documents from Dennis & Company on 19 June 2001. Until I received that document I had no knowledge of any involvement of the proposed third defendant in any breach of statutory duty or negligence nor was I aware of any causal link between any activities be it negligence or breach of statutory duty by the proposed third defendant, and the plaintiff’s injuries. Exhibited to me and marked “ 5 ” is a copy of the proposed further amended statement of claim joining the third named defendant. I further believe the plaintiff had no such knowledge.”

Paragraphs 8 and 9 of the Cross-Claim contain allegations of negligence and breach of statutory regulations.

10 The plaintiff’s present solicitors have had the conduct of the matter since at least prior to the commencement of the proceedings. The Statement of Claim itself reveals that at the time it was filed there was an awareness that the work was being carried on at a Shell oil refinery site at Clyde. The exhibited material placed before the court by the plaintiff includes a Record of Interview prepared by the Workcover Authority with Walter Petroni of 15 November 1994. The exhibited material does not reveal when that document was obtained by the plaintiff. Its contents suggest that another party may have been involved in the positioning and fixing of the ladders. The exhibited material also comprises a report from Unisearch dated 28 February 2001. The report contains information concerning the proposed third defendant (including information that the second defendant was contracted by it to carry out maintenance work at the refinery and that it had imposed a system of work for the workplace). This information would seem to have been available to the plaintiff’s advisers at least by about 28 February 2001 if not before.

11 The court has a discretionary power to grant the relief sought. In exercising that power it is required to have regard to all of the relevant circumstances of the particular case before it so as to ensure that justice is best served between the parties.

12 The plaintiff bears the onus of satisfying the court that the relief sought should be granted.

13 In my view, the plaintiff has failed to discharge that onus. It is a failure that flows from evidentiary deficiencies.

14 The fact that a party is already involved in the proceedings can be of considerable weight in cases of this nature. It may be one of a number of circumstances to be taken into account. In this case, there are other circumstances to be considered (such as delay and the explanation offered for delay).

15 In my view, the evidence that is offered to explain delay is parsimonious and falls well short of explaining it. It does not explain why the role of the proposed third defendant was not the subject of earlier investigation. It was an incident that took place at a Shell oil refinery site. Further, there was other material available to the plaintiff’s solicitors which either may or should have put them on inquiry. Why any such inquiry was not undertaken is left unexplained.

16 If the plaintiff had put before the court the evidence which explained the significant delay that has taken place, the result of this application may well have been different. Unfortunately, that course was not chosen.

17 The application is dismissed. The plaintiff is to pay the costs of the application.

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Last Modified: 11/09/2001