Cain v MBP (Industries) Pty Ltd [1992] QSC 297

IN THE SUPREME COURT OF QUEENSLAND No. 2976 of 1988 BETWEEN: RICHARD THOMAS CAIN Plaintiff AND: M.B.P. (INDUSTRIES) PTY. LTD. Defendant ( REASONS FOR JUDGMENT - RYAN J. Delivered the 21st day of August, 1992 Counsel: Mr. H. Zillman for Applicant Mr. R. Traves for Respondent Solicitors: Baker & Associates for Applicant Cooper, Grace & Ward for Respondent Hearing dates: 24 June, 1992 and 13 August, 1992 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND No. 2976 of 1988 BETWEEN: RICHARD THOMAS CAIN Plaintiff AND: M.B.P. (INDUSTRIES) PTY. LTD. Defendant ( REASONS FOR JUDGMENT - RYAN J. Delivered the 21st day of August, 1992 ( This is an application by the plaintiff for leave to proceed in the action, and that the name of M.B.P. (Industries) Pty. Ltd. be struck out as a defendant in the action and the name of 0 Dee Gee Pty. Ltd. be added or substituted as a defendant in its place. It is deposed by the plaintiff's solicitor Mr. Barker that ( 1 ', > on 17 September 1986 he was consulted by the plaintiff who instructed him that on 30 August 1985 he sustained personal injuries in the course of his employment with Oliver Davey Glass at Jupiters Casino. On 7 October 1986 he wrote to the Workers' Compensation Board stating that he had instructions to institute proceedings against the employer claiming damages for unsafe working conditions. He asked to be sent a copy of his client's application. This was sent to him on 28 October, 1986. The application for Workers' Compensation gives as particulars that the injury occurred on 30 August 1985 at Jupiters Casino; that the applicant suffered a strained back; that he reported the injury to one Gordon Thomson; that he was -- 2 of 9 -- 2 carrying an empty glass case; went to ... it down and had to stretch forward; · and that his employer was Oliver Davey Glass of Beaudesert Road, Coopers Plains. Presumably the word "put" should be inserted between "went to" and ... it down" . On 26 February, 1987 the plaintiff's solicitor wrote to Oliver Davey Glass at that address. He stated that the plaintiff had sustained a strain to the back as the result of the negligence of a fellow worker, Mr. Fitzgerald. It was alleged that the injury occurred when the plaintiff in association with Mr. Fi tzgerald was stacking empty glass cases. Instead of allowing the empty cases to be stacked neatly on top of one another, Mr. Fi tzgerald carelessly pulled towards himself an empty case and in so doing caused the plaintiff to lurch forward, as a result of which he received a back strain. A reply to this letter, which had asked for the name of the employer's insurers, was sent on 18 May 1987 by M.B.P. (Industries) Pty. Ltd. Included in the reply was the statement, "If you need to contact the former manager of Oliver Davey Glass I will be_pleased to assist you". The insurer was stated to be Suncorp Insurance. On 1 0 September 1987, the plaintiff's solicitor wrote to the Workers' Compensation Board, enclosing a copy of a letter sent to Suncorp in which it was alleged that the plaintiff's injury was caused through the negligence of a fellow employee or alternatively through the employer's failure to provide a safe system of work. He enclosed also a copy of the letter received from M.B.P. (Industries) Pty. Ltd. The Board replied on 18 0 0 0 0 -- 3 of 9 -- c 3 September, 1987 denying liability. Its reply was headed: Oli ver Davey Glass Company Pty. Ltd. On 8 August 1988, a writ of summons was issued against M.B.P. (Industries) Pty. Ltd. as defendant. This was served on 28 November 1988 on the defendant and the Workers' Compensation Board. No appearance was entered on behalf of the defendant to the writ by the solicitors for the Workers' Compensation Board by agreement pending identification of the proper person to be named as defendant. On 1 December 1988, Cooper, Grace and Ward, Solicitors, wrote to Mr. Barker stating that they had been handed a copy of the writ of summons and had received instructions to act on behalf of the defendant. It asked for advice as to when the defendant had been served with the writ of summons. This advice was forwarded on 6 December 1988. A solicitor who is a consultant to Cooper, Grace and ward, Mrs. Shirley, has deposed that on 9 December, 1988 she told Mr. Barker by telephone that the plaintiff had sued the wrong employer, that the correct employer was Oliver Davey Glass Co. Pty. Ltd., and that the plaintiff was out of time to sue the correct employer. Mr. Barker has deposed that he was not told the correct defendant. However he deposes also that thereupon he ordered an urgent search by Oliver Davey Glass Pty. Ltd. through Commercial Legal Services. On 30 January, 1990, Mrs. Shirley wrote to Mr. Barker asking as to their intentions with respect to joining Oliver Davey Glass Company. Further letters asking for this advice were sent in September and October 1990. -- 4 of 9 -- 4 Mr. Barker states that on 30 October, 1991 he obtained from the Department of Justice a Business Name Extract as to Oliver Davey Glass eo. and ascertained that the business was registered on 16 October, 1989 by Pilkington (Australia) Ltd. of 420 St. Kilda Road, Melbourne. On the same day he obtained from the Australian Securities Commission a company extract of 0 Dee Gee Pty. Ltd. This showed that 0 Dee Gee Pty. Ltd. had changed its name from Oliver Davey Glass Co. Pty. Ltd. on 2 December, 1986. He has formed the view that Oliver Davey Glass Co. Pty. Ltd, known since · 2 December, 1986 as 0 Dee Gee Pty. Ltd. was the employer of the plaintiff at the time he sustained his injuries, and that Pilkington (Australia) Ltd. and M.B.P. (Industries) Pty. Ltd. were never an employer of the plaintiff. An important consideration in an application for leave to proceed is whether the grant of leave will cause prejudice to the defendant. In this case, a statement was taken from a Mr. Keepers dated 17 February, 1987, in which he states that he and the plaintiff were engaged in carrying glass cases at Jupiters Casino. They lifted up an empty case, carried it and threw it on a pile. Shortly afterwards the plaintiff said he had hurt his back when they threw the case onto the pile. Mr. Keepers does not identify the date when this occurred. Mr. Keepers died in April 1990. Inquiries conducted on behalf of the Workers' Compensation Board have failed to divulge any knowledge of an employee named Fitzgerald. Mr. Gordon Thomson was absent from Brisbane on an extended holiday when the application originally came before me. As his 0 () C) -- 5 of 9 -- 5 evidence seemed to me likely to be important, I requested that the results of an interview with him should be communicated to me. This was eventually done. He has agreed that from December 1956 until February 1991 he was employed with Extons which later became Oliver Davey Glass and then Pilkingtons. In August 1988 he was employed in the capacity of a works supervisor. He was Mr. Keepers' immediate supervisor. He recalls the incident when Mr. Cain was injured, though he did not witness it, and he ( believes that Mr. Cain reported his injury to him. He is not aware who was carrying the case with him. He has no recollection I of telling Mr. Cain that the name of the person who was assisting him was "Fitzgerald" and he has no recollection of a person by that name being in the employ of Oliver Davey Glass or being on the Jupiters Casino site. The plaintiff has deposed that he did not know the man who was assisting him to carry the crate at the time he injured his back. Mr. Gordon Thomson told him that his name was "Fitzgerald". He judged his age to be in the late thirties, and not in his fifties, as it appears that Mr. Keepers was. He states that in 1986 he made enquiries of the defendant company in order to ascertain the whereabouts of Fi tzgerald. It informed him that Fitzgerald had left its employ. Enquiries by the defendant's loss adjusters and a search of its computer pay records do not disclose that at the time of the accident there was an employee by the name of Fitzgerald. The last step taken in this case was the service of the writ upon the defendant on 28 November, 1988. The writ was issued only a few days prior to the expiration of the limitation period. -- 6 of 9 -- 6 It has been stated on many occasions, and recently in Dempsey v. Dorber [1990] 1 Qd.R. 418 that on an application for leave to proceed under 0.90 r.9, the applicant for leave must show that there is good reason for excepting the particular proceedings from the general prohibition on the taking of a fresh proceeding without the order of a court or judge in a case in which three years have elapsed from the time when the last proceeding was taken. It appears from the decision in Wilson v. Bynon [1984] 2 Qd.R. 83 that a satisfactory explanation for delay is not a condition precedent to the granting of leave to proceed under 0. 90 r. 9, but it is a relevant circumstance. As was pointed out in Dempsey v. Dorber at p.420, the question whether () there is good reason for making such an order involves a consideration of all relevant matters, and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter. In this case, I consider that there was reasonable excuse for the delay, arising from uncertainty as to the name of the defendant. The plaintiff's solicitor had attempted to ascertain D \\ this from early in 1987 and had given at least an. outline of the (J plaintiff's claim to the Workers' Compensation Board a few months earlier. It repeated this in the letter to Oliver Davey Glass. There was, I consider, inordinate delay in following up in the advice given by Mrs. Shirley on 9 December, 1988. Nevertheless, I consider that this did not unduly prejudice the defendant. It has known since 1987 what the plaintiff is alleging, namely that he was injured while working at Jupiters Casino on 30 August, 1985 while working for Oliver Davey Glass -- 7 of 9 -- 7 (whatever may have been the correct name of the employer at that time), and that this was due to the negligence of a fellow worker named Fitzgerald or a faulty system at work. There would seem to be no serious prejudice to the defendant through the death of Mr. Keepers, since his statement may be admitted pursuant to s.92 of the Evidence Act 1977, and since the plaintiff alleges that another person caused his injuries. In relation to the application to strike out the existing ( defendant and to substitute for it as defendant 0 Dee Gee Pty. \ ( _' Ltd., I consider that the amendment should be allowed pursuant to 0 . 3 2 r . 1 ( 3 ) . I am satisfied that the mistake sought to be corrected was a genuine mistake and is not such as to cause any reasonable doubt as to the identity of the person intended to be sued. I would apply to this sub-rule what was said by McHugh J. in Bridge Shipping Pty. Ltd. v. Grand Shipping Ltd. (1991) 66 A.L.J .R. 76 at p.88 namely that it should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description was mistaken as to the person who answers that . description. It is clear that the identity of the person intended to be sued was the plaintiff's employer, and an amendment should be allowed to correct the name, even though the effect will be to substitute a new party. I order - ( 1) that the plaintiff have leave to proceed in the action; (2) that the name of M.B.P. Industries Pty. Ltd. be struck out as defendant in the action and the name of 0 Dee -- 8 of 9 -- 8 Gee Pty. Ltd. be substituted as a defendant in its place. I shall hear submissions on the question of costs. () 0 -- 9 of 9 --