Andersen v Gofish Pty Ltd  QSC 30
The Plaintiff lost his right arm and leg when a concrete bridge parapet fell on him at a construction site. He had been stowing chains used to secure the concrete structures to his transport truck, when a crew started unloading the structures. One of the parapets that was being moved, dislodged the other, which then fell on the Plaintiff.
The Plaintiff sued several parties related to the control and supervision of the building site (the original action). Several years after the injury, the Plaintiff became aware of a contract between two of the defendants to the original cause of action. The documentation of that contract was not in the possession of the Plaintiff for some years after commencing the original action.
The contract was between Synergy JV (SJV) and TES. SJV is a joint venture between the second, third, and fourth defendants to the original action. SJV was carrying out the contract work on the project. TES was engaged by SJV to supply skilled labour, including supervisors, for the construction project.
On 26 February 2016, SJV informed the Plaintiff that TES had been engaged to provide a supervisor ‘competent to … establish and enforce an exclusion zone in the lifting area, and to ensure that the lifting process was undertaken appropriately.’ That was after the expiry of the limitation period for bringing an action relating to the injuries he suffered.
In August 2016 SJV filed a third-party notice on TES, relying on the contractual obligations of TES to provide competent supervisors for the project.
Documentation provided to the Plaintiff asserted that the supervisor on the work-site was operating under instruction from SJV’s supervisor.
Did or ought the Plaintiff to have known that the supervisor was a supervisor of TES, and not of SJV.
Was knowing that he had a cause of action against TES a ‘material fact’, knowledge of which justifies an extension of the limitation period for bringing the action.
Are there any relevant factor weighing against granting the extension of time.
FINDINGS AND CONCLUSION
The material supplied to the Plaintiff had lead him and his legal team to believe that the supervisor on the construction site was SJV’s supervisor. For instance, the incident report referred to the supervisor as SJV’s structures supervisor. Consequently, on the material available before February 2016, there was no reason, even with proper advice, for the Plaintiff to conclude he had reasonable prospects of an award of damages if proceedings were brought against TES.
TES had already been joined to the proceedings, and had been involved in pre-proceeding processes. It had participated in the goings-on of the case up until this point. Consequently, there would be no prejudice to TES if the extension of time were granted.
The Plaintiff demonstrated promptness in bringing the application, and reasonable grounds for granting the extension.
Where new knowledge becomes available, and it has a material bearing on proceedings, it should be dealt with promptly.
Where material has been provided, it must be examined thoroughly. The Plaintiff did not have anything in the thousands of pages provided which suggested a cause of action against TES was viable. If the Plaintiff had had the material, the grant of extension would have been unlikely.