| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : ABREU -v- THOMAS PEACOCK & SONS PTY LTD [No 3] [2012] WADC 31 CORAM : KEEN DCJ HEARD : 30 JANUARY 2012 DELIVERED : 2 MARCH 2012 FILE NO/S : CIV 2455 of 2009 BETWEEN : OSWALD BRUCE ABREU Plaintiff
AND
THOMAS PEACOCK & SONS PTY LTD
Defendant
Catchwords: Practice and procedure - Preliminary issues
Limitation of actions - Personal injury - Whether s 93K(4) Workers Compensation and Injury Management Act 1983 ousts Limitation Act 2005
Limitation of actions - Whether an admission of workers compensation liability is a confirmation within s 46 Limitation Act 2005
Limitation Act 2005 s 55 - Meaning of 'not insignificant personal injury'
Limitation Act 2005 s 39 - Meaning of 'injury attributable to the conduct of a person'
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Limitation Act 2005 s 39 - Whether the period under the Act should be extended Legislation: Alberta Limitations Act 1996
Evidence Act 1906
Interpretation Act 1984
Limitation Act 2005
New Zealand Draft Limitation Defences Act
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982
Workers' Compensation Reform Act 2004 Result: Limitation Act 2005 excluded by reason of s 9 Representation: Counsel:
Plaintiff : Mr T Lampropoulos SC
Defendant : Mr G Hancy
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Cartledge v E Jopling & Sons Ltd [1963] AC 758
Davis v Jacobs [1999] Lloyd's Rep Med 72
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Dobbie v Medway Health Authority [1994] 1 WLR 1234
Haward v Fawcett [2006] 1 WLR 682
Jones v Dunkel (1959) 101 CLR 298
Roncevich v Repatriation Commission [2005] HCA 115
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Rothwell v Chemical and Insulating Co Ltd [2007] 3 WLR 876
Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152
Wilkinson v Ancliff (BLT) Limited [1986] 1 WLR 1352
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1 KEEN DCJ: On 19 August 2009, Mr Abreu issued a writ claiming damages for personal injuries against his employer Thomas Peacock & Sons Pty Ltd arising out of an accident alleged to have been sustained by him on 29 May 2006.
2 The writ having been issued more than three years after the date of the alleged accident, the defendant, in its defence, raises s 14(1) Limitation Act 2005 (WA) and alleges that Mr Abreu was not, and is not, entitled to commence or maintain the action. 3 This plea has given rise to a trial of preliminary issues. Those issues are contained in a statement filed 3 November 2010. In the statement of preliminary issues and in these reasons the reference to Compensation Act is a reference to Workers Compensation and Injury Management Act 1981 (WA). 4 The issues are: (Page 5)
injury 'was attributable' to the negligence of the defendant, and can and should that leave be backdated (so as to ameliorate the effects of s 93K(4) of the Workers' Compensation and Injury Management Act 1981 in the circumstances of this case)? (f) Did the filing of an unconditional appearance by the defendant cure any defect in the commencement of the proceedings? 5 For the purposes of dealing with these issues it seems to me that they are not necessarily expressed in a logical sequence. I propose to deal with them in a different sequence which I will come to later in these reasons. 6 Before doing so it is relevant to note the allegations contained in the statement of claim and averments in the defence. 7 Relevantly, the plaintiff alleges in the statement of claim: (Page 6)
(Page 7)
… 13 The injuries pleaded in paragraph 7 hereof, and the residual disabilities pleaded in paragraph 11 hereof, were sustained by the Plaintiff by reason of the breach or breaches of the contract of employment and/or duty of care owed to the Plaintiff by the Defendant. 8 In its defence, the defendant relevantly pleads: (Page 8)
Plaintiff was not, and is not, entitled to commence or maintain this action. 9 The defendant otherwise denies liability.
The evidence 10 At the trial of the preliminary issue evidence was led from Mr Abreu. Three medical practitioners were also called to give evidence in the plaintiff's case. In addition, the plaintiff's wife was presented by the plaintiff for cross-examination by the defendant. I will deal more with this later. 11 The defendant called one medical practitioner. 12 Otherwise the evidence comprised a number of documents that were tendered by consent. 13 I will deal with the evidence as it is relevant to the various issues raised in the statement of preliminary issues.
The issues
(a) Does s 14(1) of the Limitation Act apply to this type of action in view of s 93K(4) of the Compensation Act?
The relevant legislation
Limitation Act 2005 6. Personal injury Actions — accrual, limitation periods (1) Section 55 or 56, as is relevant to the case, applies to ascertain when a cause of action relating to a personal injury to a person accrues. 9. Limitation periods under other written laws (1) This Act (except section 28(3) and(5)) does not affect the operation of a limitation provision in another written law, or anything done under such a provision. (2) In subsection (1) — (Page 9)
14. Personal injury, Fatal Accidents Act 1959 Actions — 3 years (1) An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued
Workers Compensation and Injury Management Act 1981
Section 93K Constraints on awards (4) Damages in respect of an injury can only be awarded if — (a) the worker elects, in the manner prescribed in the regulations, to retain the right to seek the damages; and (b) the Director registers the election in accordance with the regulations; and (c) court proceedings seeking the damages are commenced after the Director gives the worker written notice that the Director has registered the election; and (d) the court is satisfied that the worker's degree of permanent whole of person impairment is at least 15%. (5) Unless the court is satisfied that the worker’s degree of permanent whole of person impairment is at least 25% — (Page 10)
Section 93L Election under s. 93K to retain right to seek damages Section 93M Termination day defined (1) If a claim for compensation by way of weekly payments has been made wholly or partially with respect to an injury, the termination day for an election to retain the right to seek damages in respect of that injury is the last day of the period of one year after the day on which the claim for compensation by way of weekly payments is made unless a later day is fixed by subsection (3) or under subsection (4). (Page 11)
Section 93O Employer to give worker notice of certain things (1) At the time described in subsection (2), the employer is required to notify the worker in writing in accordance with the regulations — (2) The notice is required to be given within the period of 14 days commencing on the day that is 6 months and 14 days before the day that would be the termination day if no later day were to be fixed under section 93M(4). 14 Section 79(1) Limitation Act provides that a defendant in an action has the burden of proving that the action cannot be commenced because the applicable limitation period has expired. That being the case it is appropriate to deal with the defendant's submissions first.
The defendant's submissions 15 The defendant's case, as expressed in written and oral submissions, is that s 14(1) Limitation Act governs actions for damages relating to personal injuries. The defendant argues that no exception is made for an injured worker. 16 The effect of s 93K(4) Compensation Act is to impose an additional constraint on the ability of an injured worker to recover damages. If the right to damages cannot be enforced by reason of the operation of the limitation period, s 93K(4) does not create or reinstate a right. 17 It is said that the opening words of the subsection 'damages in respect of an injury can only be awarded if –' is a reference to damages under an enforceable claim arising independently of the Compensation Act for an injury caused by the negligence or other tort of the worker's employer. 18 Section 93K is to be found in pt IV div 2 of the Compensation Act. In pt IV div 1a, s 93AA provides: (1) If there is an entitlement to compensation under the statutory workers' compensation scheme of a State in respect of an injury to (Page 12)
19 Section 93AE relevantly provides: In this Division — substantive law includes — (a) a law that establishes, modifies, or extinguishes a cause of action or a defence to a cause of action; and (b) a law prescribing the time within which an action must be brought (including a law providing for the extension or abridgment of that time); (c) a law that provides for the limitation or exclusion of liability or the barring of a right of action if a proceeding on, or arbitration of, a claim is not commenced within a particular time limit; (d) a law that limits the kinds of injury, loss or damage for which damages or compensation may be recovered; and (e) a law that precludes the recovery of damages or compensation or limits the amount of damages or compensation that can be recovered. 20 The defence argues that the definition of substantive law in s 93AE(b) and s 93AE(c) is an inclusive definition but broad enough to cover a limitation law and, if that is so, it appears to contemplate that there will be a limitation period argument for workers compensation claims. Counsel argued that there is nothing in those provisions to suggest that there is some special unique quality that s 93K would have to the exclusion of the limitation law that would be part of the substantive law of the State. 21 Division 1(a) is concerned with entitlements to compensation under a statutory scheme whether under the laws of Western Australia or some other state (as defined). The definition of 'substantive law' in s 93AE is the law of the relevant state that governs whether or not a claim for damages can be made and its determination. (Page 13)
22 I note that the definition of substantive law is inclusive and mirrors, to a large extent, the provisions of s 9 Limitation Act. 23 Section 93AE makes it clear that, for Western Australia, the legislation as to damages for a work related injury is div 2 and, relevantly here, div 2(3). That being the case the definition of substantive law in s 93AE harks back (relevantly) to s 9 Limitation Act and does not add anything to the arguments advanced by the defendant under that div 1(a). 24 Put simply, the argument for the defendant is that there is nothing in either Act to suggest that the Compensation Act overreaches the Limitation Act.
The plaintiff's submissions 25 The reference to the commencement of an action in the Limitation Act is a reference to the issue of the appropriate originating process, in this case a writ. 26 Counsel for the plaintiff relied upon s 9 Limitation Act which permits other provisions to deal with relevant limitations for particular causes of action. He argued that s 93K Compensation Act contains detailed and specific limitation provisions. He argued that whilst generally the provisions of the Limitation Act would allow three years for personal injury actions to be commenced, under s 93K Compensation Act it could in fact be as short as 12 months. It is argued that it is unlikely that Parliament would have imposed another layer of complexity upon the Limitation Act and that s 9 Limitation Act coupled with s 93K Compensation Act has the effect of ousting the provisions of the Limitation Act under s 14.
Does the Limitation Act or the Compensation Act apply? 27 In the context of the present claim div 2(3) pt IV of the Compensation Act applies. 28 As can be seen from the text above, s 93K provides for a constraint on awards. Section 93C provides that '[i]f this Division (Division 2 Part IV) applies a court is not to award damages to a person contrary to this Division'. 29 Section 93K(4) provides that damages in respect of an injury can only be awarded if the worker elects, in the manner prescribed, to retain the right to seek damages and the election is registered in accordance with (Page 14)
the appropriate provisions. The effect of such an election is to affect the worker's right to weekly payments of compensation under the Act and ultimately to bring such payments to an end (s 93P). 30 Section 93K(4) provides that damages may only be awarded if the court proceedings seeking damages are commenced within a period of 30 days after notice from the Director of registration of the election made by the worker. 31 Having regard to the arguments made on behalf of the plaintiff, it is necessary to see whether the provisions of the Act do in fact create a limitation provision as that term is defined in s 9(2) Limitation Act. In seeking a proper interpretation of the statute the Interpretation Act 1984 relevantly provides: 19. Extrinsic material, use of in interpretation (1) Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material — (2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes — (Page 15)
32 The relevant sections of the Compensation Act were incorporated into that Act by the Workers Compensation Reform Act 2004 (No 42 of 2004). In the second reading speech before the Legislative Assembly on 5 May 2004, Mr J C Kobelke advised the House that evaluation of impairment would form the basis for the threshold requirement to pursue damages at common law. He went on to say: The Bill addresses the current absence of real choice and certainty for workers and the pressure on them to make an election to pursue common law damages within six months of injury when in many cases their condition has not stabilised. It also deals with the problem of delays and uncertainty in determining whether a worker meets the threshold for access to common law … The new process for accessing the common-law system will require an election before the termination date, which has been extended to 12 months from the date a claim for weekly payments is made by the worker on his or her employer … The new mechanism for calculating the termination day is intended to ensure that workers are not denied access to the common law system because of technical disputes about the date from which the termination date is calculated. Any worker who does not elect within the 12-month period will remain eligible to receive the benefits of the statutory compensation system to which he or she is entitled, but will automatically forego any common law entitlement. In order to ensure that workers are aware of the election requirements, an employer will be required to notify each worker about six months before the termination date. Election to pursue common law damages will continue to be irrevocable. The election period has been increased to 12 months to help ensure that a worker's condition has stabilised before requiring a decision to pursue common law damages. An extension of time to elect for up to one year period may be granted to a small number of severely injured workers who have evidence from an approved medical specialist that their condition has not stabilised … Access to the common law system initially will require either a worker and employer reaching agreement that the worker's degree of whole of person impairment, or WPI, is at least 15%, or the worker obtaining an (Page 16)
33 That speech can only be used as provided for in s 19 Interpretation Act either to confirm the meaning of a provision that is the ordinary meaning conveyed by the text of the provision or to determine the meaning of the provision where that provision is ambiguous or obscure or the ordinary meaning conveyed by the text, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or is unreasonable. 34 The provisions of the Compensation Act with which we are concerned and which were introduced by the Workers Compensation Reform Act commenced on 14 November 2005. At that time the 1935 Act was still in force. The 2005 Act received assent and commenced on 15 November 2005. Accordingly, the provisions of s 93K Compensation Act originally applied in the context of the 1935 Act but after 15 November 2005 in the context of the 2005 Act and had to be considered in the light of s 9 of that Act. 35 The limitation provisions in s 9 Limitation Act includes provisions that establish, modify or extinguish a cause of action. They go on to provide for the inclusion of provisions prescribing the time within which an action can be commenced and, finally, the inclusion of provisions in respect of the limitation or exclusion of liability or the barring of a right of action if an action is not commence within a particular time. 36 Counsel for the plaintiff relied upon s 55 Limitation Act in relation to the accrual of a cause of action. That section relevantly provides: 55. Personal injury — general (1) A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events as are applicable occurs — (Page 17)
the person having sustained a not insignificant personal injury. 37 In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 235, Wilson J said: The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which give rise to a right to sue. In an action for negligence it consists of the wrongful act or omission and the consequent damage. 38 Halsbury's Laws of England, 4th ed, vol 37, 18 notes: Cause of action has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has being held from the earliest time to include every fact which is material to be proved to entitled the claimant to succeed, and every fact which the defendant would have a right to traverse. 39 In written submissions counsel for the plaintiff said that a cause of action must include an accrued right to seek a remedy (relevantly in the case of a claim for personal injuries, damages) otherwise the court action would be liable to be struck out as not disclosing a cause of action. Relying upon s 55 Limitation Act it is said that that cause of action does not accrue, and time does not commence to run, until a person satisfies the provisions of that section. 40 It can be seen that in the definition of cause of action noted above, it represents, in the context of the present case, a bundle of facts which, of necessity, in a claim in negligence, must include the suffering of loss or damage. As it stands, it is the suffering of the loss and damage which completes the cause of action even though, in circumstances outside the Limitation Act, the plaintiff may not have been aware of the loss or damage. Section 55 Limitation Act now modifies that former position in personal injury matters so as to fix a time for the purposes of that Act from which the cause of action will have been deemed to have accrued. 41 The Macquarie Dictionary, 4th ed, relevantly defines the verb 'accrue', in relation to a right or demand, as 'to become legally enforceable'. 42 In my view the provision does not just modify the period within which an action based upon a cause of action may be brought, it modifies that cause of action. A claim will not become legally enforceable until all the elements of the cause of action are complete. The effect of s 55 is to defer the accrual of the cause of action and the right to sue. (Page 18)
43 In any event the real issue is whether the provisions of the Compensation Act had effect under s 9 Limitation Act. 44 In written submissions, counsel for the defendant referred to Western Metals Zinc NL v Wesfarmers Transport Ltd [2003] WASCA 152 and Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95. Whilst the former made some reference to issuing a writ to preserve a limitation period and the latter referred to the former, neither case was specifically in relation to the legislation now under consideration. Specifically, Atanasio was a case dealt with under div 2(2) pt IV Compensation Act and not div 2(3) (although it may be said that the differences are not material for the purposes of the present argument). Further, in neither case was the issue now under consideration before the court. Indeed, I was advised by counsel that they had been unable to find any authority on the issues presently before the court. 45 On the face of it, and having regard to s 19 Interpretation Act it might be said that there is nothing ambiguous or obscure in the wording of the provisions of pt IV Compensation Act. That being the case there would be no warrant for having regard to the second reading speech of the honourable minister on the introduction of the Workers Compensation Reform Act 2004 to assist in the interpretation of the Compensation Act. 46 However there does appear to be a latent ambiguity or obscurity in the provisions. As counsel for the plaintiff noted, 'it's difficult to understand that Parliament would impose another layer of complexity in order to torment workers further'. In opening his speech to the House, Mr Kobelke said: [t]he Workers' Compensation Reform Bill 2004 establishes a new direction for workers compensation in this State by helping to restore fairness, balance and certainty to the system. 47 As I have noted, in his speech, the minister referred to workers accessing the common law entitlement. He also referred to the provisions of the Compensation Act whereby an election to pursue common law damages would be irrevocable. I have noted under the legislation once an election is made a worker loses his rights under the legislative scheme. 48 As counsel for the plaintiff also noted, the scheme under the Compensation Act could have the effect of precluding a worker from pursuing a common law claim within the three-year period provided in the Limitation Act if the worker failed to make an election under s 93K(4) before the termination date. (Page 19)
49 By way of example, if a worker suffered injury at work on 1 January 2010 and immediately made a claim for compensation by way of weekly payments in respect of that injury then, absent any extension of the termination day, the termination day for an election to retain the right to seek damages in respect of that injury would be one year later, i.e. 1 January 2011 (s 93M(1)). If he failed to do so then he could not make an election (s 93L(4)) and he would no longer retain the right to seek damages (s 93L(2)). 50 The word 'retain' found in s 93L(2) presupposes a right that already exists. If that right is lost then, in that context the provisions of the Compensation Act can be said to have modified the worker's cause of action by extinguishing once and for all his right to claim damages and his cause of action as contemplated in s 9 Limitation Act. That right could not be revived by an argument that any action brought in respect of the accident giving rise to the claim was instituted within the three-year period allowed under the Limitation Act. 51 By way of a further example, one might take an alternative scenario in which a worker is injured and is aware of that injury within the meaning of s 55 Limitation Act. However, say within the three-year period prescribed under the Act from the accrual of the cause of action under s 55 Limitation Act the worker had not reached the level of impairment required under the Compensation Act to enable an election to take place under s 93K(4). It may be a case where the worker's disability is one that develops over an extended period of time, gradually worsens but does not reach the required degree of impairment until after three years have passed. In those circumstances, on the defendant's argument, the worker would not have access to common law damages. Again this would amount to a modification of his cause of action leading to an extinguishment. 52 In both such cases there would be a modification or extinguishment or a barring of a right of action as contemplated in s 9(2)(a) and s 9(2)(c) Limitation Act. 53 Given that one of the objects of the amendments to the compensation legislation was to bring fairness certainty and balance to the system, a construction of the provisions which would on one scenario deprive a worker of access to common law rights within a period shorter than that allowed in the Limitation Act and on another deprive a worker of such access where, through no fault of his own, he was outside that period, would in my view lead to a result that is unreasonable. (Page 20)
54 The only certainty that can come from a proper interpretation of the compensation provisions is to hold that those provisions are in fact limitation provisions as defined in s 9 Limitation Act and therefore the limitation period in s 14 does not apply. In respect of workers who potentially have a claim at common law the scheme of the Compensation Act is to restrict the worker's access to the common law system by reference to the termination date. That date may be short or long (and may be extended) depending on the circumstances, but it is a provision that will then operate fairly in the circumstances of each individual case. Support for this interpretation which produces a modification or extinguishment of a cause of action or otherwise bars the right of action is to be found in the requirement in s 93O Compensation Act that the employer to give notice to the worker as set out earlier. That requirement is a necessary adjunct to the modification or extinguishment of what would otherwise be limitation periods. 55 If the ordinary meaning of the words of the statute were to be read as argued by the defence that the Compensation Act merely imposes an additional constraint on the ability of an injured worker to recover damages, it would in my opinion defeat the purpose or object underlying the Act and lead to a result which is both unreasonable and unfair. 56 In the circumstances of the present case, it is not necessary for me to decide whether a worker could and what the position would be if a worker was to institute proceedings before the election and registration of election under s 93K Compensation Act and how the cases of Western Metals Zinc and Atanasio might impact upon such an event. 57 Having decided that the Compensation Act applies, the other issues raised in the statement of preliminary issues would fall away. However given the novelty of the issue before me, it is appropriate for me to deal with the other issues that arise in the event that I am wrong in my determination on issue (a) and s 14(1) Limitation Act does apply.
Issue (b)(iii) - Do s 46 and s 47 apply to the admission of workers compensation liability as a confirmation, so as to exclude the time before that act?
Relevant legislation
46. Meaning of confirmation (1) For the purposes of this Act, a person confirms a cause of action if the person — (Page 21)
(a) acknowledges, to a person having the cause of action (person A), person A's right or title, even though the acknowledgment does not disclose a promise to pay; (b) makes, to a person having the cause of action (person B), a payment in relation to person B's right or title and makes the payment in circumstances not inconsistent with an acknowledgment of that right or title; or (c) makes, to a person having a cause of action to foreclose the equity of redemption of mortgaged property or to recover possession of mortgaged property (person C), a payment of principal or interest secured by the mortgage or a payment to person C otherwise in relation to person C's right or title to the mortgage. (2) In subsection (1) a reference to a person having a cause of action is a reference to the person having the cause of action either solely or with other persons.
47. Limitation period extended by confirmation If a cause of action lies against a person (either solely or with other persons) and the person confirms the cause of action — (a) after the limitation period provided for under this Act for the cause of action begins to run; and (b) before that limitation period expires, the time during which the limitation period runs before the confirmation is made does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.
48. Formal requirements for acknowledgments For the purposes of section 46(1)(a), an acknowledgment is of no effect unless it is in writing and signed by the maker. 58 The document relied upon by the plaintiff and being pp 18 and 19 in composite exhibit 3 is an insurer's notice that liability is accepted. A copy of that notice is reproduced as an annexure to these reasons.
The plaintiff's submissions 59 The plaintiff argues that the relevant cause of action is damages for negligence/breach of statutory duty in relation to an injury caused by the defendant. Additionally the statement of claim pleads breach of contract. Counsel argued in written submissions that the acceptance of liability to (Page 22)
pay workers compensation benefits and payments which recognise that the plaintiff suffered an injury caused by his employment could be a confirmation. The fact that the acceptance of liability and payments were also in respect of workers compensation liability does not alter the fact that there was an acknowledgement of a relevant causal connection of employment and injury, and damage, for the purposes of a common law action.
The defendant's submissions 60 These were simply that there is no evidence of any fact which would bring this case within s 46 Limitation Act.
Findings 61 The first thing to note is that contrary to s 48 the document said to be the acknowledgement is not signed. Further, on the material before the court the defendant is Thomas Peacock & Sons Pty Ltd. The document makes no reference to this company but instead refers to a company, Slumberking Pty Ltd. There is no evidence before the court connecting these two companies. 62 Further, the document is a form that is prescribed under reg 6B Workers Compensation and Injury Management Regulations 1982. Under that regulation the form is the prescribed form under s 57A(3)(a) Compensation Act which provides: Section 57A. Claims procedure where employer insured (3) Upon an employer making a claim as mentioned in subsection (2), the insurer must, before the expiration of 14 days after the claim was made by the employer — (a) give the worker to whom the claim relates and the employer notice, in accordance with section 57BA and the regulations, that liability is accepted in respect of the weekly payments claimed. 63 It can be seen that the notice was one accepting liability in respect of weekly payments only. It is not an acknowledgement of the cause of action alleged by the plaintiff. That being the case the document is not a confirmation within the meaning of div 5 Limitation Act. (Page 23)
Issues (b)(i) and (b)(ii) and (d)(i) and (ii) 64 I propose to deal with these issues together as it appears from the nature of the questions asked that it is logical to do so.
Issue (d)(ii) - who carries the onus of proof? 65 It is also logical that this question be disposed of first. There is no issue between the parties that by virtue of s 79(1) Limitation Act the defendant carries the burden of proof.
Issue (b)(i), (ii) and (d)(i) – when did the cause of action accrue, is that affected by s 93K(4) Compensation Act, and did the plaintiff become aware before 19 August 2006 that he had sustained a not insignificant personal injury that was caused by the accident? 66 The time limitations for commencing an action for damages relating to personal injury are directed to the period that has elapsed since the cause of action accrued (s 14(1) Limitation Act). The accrual of the cause of action is to be determined by reference to s 55 of that Act. 67 In my view and on my review of the Compensation Act there is nothing in s 93K(4), or elsewhere in the Act, that affects that position. 68 Before coming to the relevant submissions of the parties and the evidence that impacts upon these questions a threshold question arises out of s 55 Limitation Act and that is the meaning of the words 'not insignificant personal injury'. 69 I have been taken to the Macquarie Dictionary in which the word 'insignificant' is said to mean 'unimportant, trifling, or petty' or 'too small to be important' or 'of no consequence, influence or distinction'. Conversely the word 'significant' as an adjective is defined as 'important; of consequence'. The word 'significance', as the noun, is defined as 'importance; consequence'. 70 I will return to this later.
The defendant's submissions 71 In written submissions the defendant relies upon the plaintiff's statement of claim in which the plaintiff alleges that on 29 May 2006 he suffered a back injury (par 6.3). The defendant further argued that the plaintiff's cause of action accrued no later than 30 May 2006 because on that day and the previous day he was aware that he had sustained a not insignificant personal injury and he had experience the first symptom, (Page 24)
clinical sign or other manifestation of personal injury consistent with having sustained a not insignificant personal injury. 72 In oral submissions at the trial of issues the defendant relied upon the evidence of the plaintiff which comprised his statement of evidence dated 5 August 2011 (exhibit 1) and his cross-examination. The defendant argued that that evidence showed that between 29 and 31 May 2006 the plaintiff knew he had problems with his back which were not insignificant. 73 Further, according to the plaintiff's statement of evidence, on 1 June 2006 a doctor at Armadale hospital told him there was something wrong with his back. He had taken time off work. By early June 2006 he had the first manifestation of a not insignificant personal injury. 74 In his statement, in July 2006, because his pain was getting worse, he was advised to see a Dr Sam. Dr Sam referred him to Dr Hayes. Dr Hayes reported that the plaintiff told him that he had been aware of mild pain symptoms in the left low back region on and off for the past two years but this had not affected his work. In his statement the plaintiff said that he told Dr Hayes that his back pain was for the last two months. 75 I will come to the evidence in more detail, but the defendant submission is that the plaintiff satisfied s 55 Limitation Act in that by the time he saw Dr Hayes in 2006 he had had pain in the last two months.
The plaintiff's submissions 76 In written submissions the plaintiff sought to relate s 55 Limitation Act to s 93K(4) Compensation Act. Those submissions were to the effect that unless and until an injury reaches the level required by s 93K it is legally insignificant in relation to a cause of action for damages. Until then, symptoms and clinical signs are not 'consistent with a person having sustained a not insignificant personal injury' because it may be consistent with a person suffering an injury which may result in no permanent whole of person impairment, or at least an impairment less than 15%. 77 In oral submissions counsel argued that a cause of action against the defendant for damages accrues only when one or the earlier of the events set out in s 55 occurs. Section 55(1)(a) requires an actual knowledge on the part of the plaintiff that he has sustained a not insignificant personal injury. (Page 25)
78 Counsel attached to those words a meaning of a personal injury which is not unimportant or was of some importance. That argument was developed along the lines that if the injury had no relationship to the defendant it would be unimportant. 79 He said that the plaintiff must be aware, in other words that he had actual knowledge, that he had a not insignificant personal injury. A state of confusion or a suspicion would be sufficient. The relevant time for assessment of this knowledge or the manifestation of the personal injury was before 19 August 2006, that is to say three years before the issue of the writ. Counsel argues that any events after 19 August 2006 are therefore irrelevant. For the Limitation Act to affect the plaintiff's claim the symptoms and signs or manifestation must be before 19 August 2006 and indicate a significant personal injury. 80 Against a background of a pre-existing history of back problems counsel said it is difficult to attribute the back problems, the subject of the current dispute, to the defendant. Accordingly, it was said that there is an element of confusion in relation to the plaintiff's awareness as to whether or not he had sustained a not insignificant personal injury 81 It is also part of the plaintiff's argument that what was being described to doctors from 29 May 2006 was not a matter of significance and was not considered by the medical practitioners to be a matter of significance.
The evidence 82 As I have noted, the plaintiff's evidence-in-chief was by way of a signed statement of evidence dated 5 August 2011. That shows that he was born in Burma on 21 April 1971. He is 40 years old. He came to Australia on 15 December 1995. He was educated in Burma where he had five years studying English. Since arriving in Australia he attended English courses in 1966 and 1967 for six months on each occasion. He claimed in his statement of evidence that he had trouble picking up the English language and his English skills were poor at the end of his courses. He has also worked whilst in Australia. 83 For the purposes of the hearing the plaintiff had the benefit of an interpreter for those occasions when he experienced difficulty in understanding questions put to him. Overall, I gained the impression that he had a reasonable grasp of the English language. (Page 26)
84 In his statement the plaintiff described the circumstances of his accident. Close to lunchtime on 29 May 2006 he was asked by a mechanic, Richard, to assist in reattaching a machine part known as a 'Geneva'. It is described as a heavy solid steel shaft weighing approximately 100 kg. He said he was required to take directions from Richard. He said that he was required to go into a confined area to lift the steel rod of the Geneva in order to align the same. He described the area as one where he could not stand up straight. He worked in a bent position. As he lifted the Geneva in order to carry out the alignment he said he suffered a sharp pain in his left lower back area. He thought it was a muscle strain. He thought the pain would go away and continued working until the end of the shift at 3.00 pm. 85 He said that after work when he went home the pain became bad and he also notice pain in his groin area and it started going from the groin to the left leg. 86 The next morning he still had pain in his lower back, groin and left leg but went to work starting at 6.30 am. He was again asked by Richard to assist in installing a machine part. It was necessary for him to squat down to tighten up some screws and after doing so he attempted to stand but his back locked and he fell to the floor with sharp pain going from his lower back to the left groin and left leg. He tried to stand but could not. He reported the incident to his shift supervisor, Chhay, and went home at about 9.00 am. He continued to suffer pain in his lower back, left groin and left leg and later that day his wife took him to Armadale hospital. 87 He said that he was provided with Panadeine Forte. 88 On 31 May 2006 he awoke with a sharp pain and was again taken to Armadale hospital and referred for x-rays of his back. On 1 June 2006 he again attended the Armadale hospital when he was told there was something wrong with his back and he was given a medical certificate. 89 When he returned to work his manager told him to do light work and if there was any heavy lifting he should ask someone to help him. He said that he was taking painkillers every day so that he could go to work. 90 In his statement he said that in July 2006 his pain was getting worse and a friend advised him to see a Dr Sam who in turn referred him to Dr Hayes for lower back pain. He saw Dr Hayes towards the end of July 2006. According to his statement he told Dr Hayes that his back pain had been for the last two months. (Page 27)
91 The plaintiff was cross-examined at some length about a variety of matters. In large part his cross-examination was not illuminating as the plaintiff answered many questions by saying he either did not know, did not understand or did not remember. 92 However certain matters did become apparent from the cross-examination. The plaintiff said that before 29 May 2006 he had not had problems with his back. He did not recall going to the Langford Medical Centre to see a doctor about his back. There was evidence from a Dr Diamond by way of a report dated 1 February 2012, admitted into evidence under s 79C Evidence Act 1906 (exhibit 5), to the effect that he attended the medical centre on 9 March 2006 with left lower back pain radiating into the leg and groin. 93 He agreed that when he hurt his back on 29 May 2006 he did not see a doctor on that occasion. He agreed that he went back to work the next day and the pain had got worse when he stood up. 94 He was asked whether he told someone at the hospital when he attended that he had low back pain. He said he did not and he thought the pain was from his groin area. 95 Page 12 of exhibit 3 is a workers compensation first medical certificate dated 23 August 2007. The plaintiff agreed that that contained his handwriting in section 1 (worker's details), section 2 (employer details) and section 5 (details from worker). Relevantly, in section 5 the plaintiff wrote that the date of the injury as '29.05.06', the location where the incident occurred as 'Cumberland Wire', the description of the injury as 'low back pain, left leg pain' and the description of how it occurred as 'fixing Jeneva [sic]. Lifting it. To be fit in the right position'. 96 That certificate is signed by Dr Chris Chang and his medical assessment is 'low back injury – left L5/S1 disc protrusion with left S1 nerve root impinged'. 97 In cross-examination the plaintiff was taken to the circumstances of the injury on 29 May 2006. He agreed that it was Richard who told him what to do and where to do it. He said that when he lifted the Geneva he felt just a little pain in his back he said 'looked like the muscle pain or something like that. Sharp'. He went on to say 'a little sharp … but not very much in that time. Something wrong – like the muscle crinkle like that'. He agreed that whilst he thought it would go away, it did not and that night the pain got worse. He agreed that the following day he still (Page 28)
had pain in his back and went on to describe the incident on that day as falling to the floor with a sharp pain in his back. He was asked if the pain had become worse and he agreed saying 'yeah, very bad'. 98 He agreed that the pain arose because he had been working in a small area and had lifted the Geneva and that he had done that because he had been asked to do so by Richard. He agreed that from 30 May 2006 he had pain and that he knew he had pain. He also knew why he had the pain – because he had been lifting the Geneva and had been told to do so. It was put to him that he had known since 30 May 2006 that he had had pain in his back and he agreed and it had been caused by lifting the Geneva. The plaintiff agreed that he had been off work from 30 May to 6 June 2006 because he had back pain. 99 Mr Lampropoulos for the plaintiff sought to rely upon the evidence of two medical practitioners. It was said that if the injury was significant one would expect that they, with their expertise and level of sophistication, would have picked up the significance of the injury at that time. 100 One such doctor was Dr John Hayes, a consultant rheumatologist, who saw the plaintiff on or about 31 July 2006. In his examination-in-chief, based upon his report of 31 July 2006 (p 10, composite exhibit 3), he was asked if there was anything significant in the plaintiff's lower back and he replied in the negative. 101 Counsel also referred to the evidence of Dr Beattie from the Armadale hospital in which the doctor was asked whether there was anything of significance that he had noted and he said that he had not, it did not seem to be a significant case. However his notes do reveal intermittent lower back pain (p 2, composite exhibit 3). 102 In view of the findings which I make in relation to the expression 'not insignificant personal injury' and in relation to the evidence of the plaintiff, the evidence of these doctors does not, in my opinion, impact upon those findings and for the purposes of the issues under consideration in this section, it is not necessary for me to canvass the medical evidence further.
Findings 103 On the evidence it is open for a tribunal of fact to find that the plaintiff suffered an injury to his back whilst at work on 29 May 2006 which was exacerbated on 30 May 2006. He is also open on the evidence (Page 29)
for a tribunal of fact to find that that injury occurred at work whilst the plaintiff was doing heavy lifting in a confined space under the direction of another employee by the name of Richard. 104 I am also satisfied that it is open on the evidence to find that from that time onwards, that is to say 29 or 30 May 2006, the plaintiff continued to experience pain and other symptoms. As I have noted, he acknowledged that the pain on 30 May 2006 was very bad. 105 I have set out earlier in these reasons the text of s 14 Limitation Act to the effect that a claim for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. I have also set out earlier in these reasons the text of s 55 of that Act as to when a cause of action accrues. 106 I am satisfied that the plaintiff became aware of that he had sustained an injury on 29 May 2006 or, at the latest, the following day. I am also satisfied that the first symptom, clinical sign or other manifestation of that injury occurred on or about that time. I am also satisfied that there would have been no doubt or confusion in the plaintiff's mind that he had suffered a back injury at work. I am also satisfied that he would have been aware of the relationship between that injury and his work. To the extent that it is necessary for the plaintiff under the section to have actual knowledge that he had sustained a not insignificant personal injury the evidence reveals that he was so aware. It was more than just suspicion that he sustained such an injury, as counsel put it. 107 The real issue that arises is whether or not that injury is a 'not insignificant personal injury' as that term is used in s 55 of the Act. 108 I do not accept plaintiff's counsel’s argument that that phrase must indicate a 'significant personal injury'. If the Parliament had intended this section to relate to a significant personal injury it would no doubt have said so and avoided the double negative. Indeed, that is the case in s 56 dealing with asbestos related diseases. Under that section, for the purposes of knowledge of relevant facts in relation to a cause of action, the person is required to have knowledge that the injury was 'significant'. The Parliament went further in s 56(3) by providing, for those purposes, that an injury is significant if the person would reasonably have considered it sufficiently serious to justify commencing an action. 109 I have referred earlier to the Macquarie Dictionary definition of 'insignificant'. Without discarding the other definitions I will limit myself to that of 'trifling' for the purposes of these reasons. (Page 30)
110 The use of the expression 'not insignificant personal injury' may be seen to have its genesis in the fact that some causes of action, including negligence, require actual damage to be sustained and proved before the action is complete. Damage is used in the sense of being worse off but the question has arisen in the past as to how much worse off one must be. 111 In Rothwell v Chemical and Insulating Co Ltd [2007] 3 WLR 876, 880 et seq, Lord Hoffmann dealt with the concept of actionable damage and in particular the problems thrown up in Cartledge v E Jopling & Sons Ltd [1963] AC 758. His Lordship referred to the rule de minimus non curat lex and noted that whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree. He went on to note the expressions used in Cartledge in the Court of Appeal and the House of Lords to identify, for the purposes of the Limitation Act, in an action for negligence, the date upon which the claimant suffered damage which cannot be characterised as trivial. Various expressions were used and included 'not being insignificant', 'the plaintiff concerned has suffered serious harm', 'beyond what can be regarded as negligible', and 'real damage as distinct from purely minimal damage'. 112 The reform of limitation laws accomplished by the 2005 Act followed a detailed analysis of limitation law and a report by the Law Reform Commission of Western Australia (Project No 36 Part II - January 1997). In that report the Commission considered the problems arising out of Cartledge and other cases which provided that the limitation period ran from the point when damage was suffered, irrespective of whether it was discoverable or not. At par 7.17 the Commission considered an approach based upon discoverability, that is to say that the limitation period begins to run only when the damage becomes discoverable. That became the Commission's recommended scheme, expressed at par 7.21 that all claims should be subject to a discovery limitation period which would expire if the claimant has not commence proceedings within three years after the date on which the plaintiff first knew, or in the circumstances ought to have known that: (Page 31)
(iii) the injury, assuming liability on the part of the defendant, warrants bringing proceedings. 113 In presenting its report, the Commission had regard to, amongst other things, the Alberta Limitations Act 1996 and New Zealand Draft Limitation Defences Act. In the former, by s 3, provision was made that 'if a claimant did not seek a remedial order within two years after the date on which the claimant first knew, or in the circumstances ought to have know that the injury had occurred, was attributable to conduct of the defendant and that the injury … warrants bringing a proceeding the defendant is entitled to immunity from liability'. I take that expression to be another way of expressing what Lord Hoffmannhad to say in Rothwell that the injury had to be sufficiently serious to found a claim for compensation and not too trivial to justify a remedy. 114 The New Zealand Draft Legislation, in cl 6, referred to a claimant gaining knowledge of the occurrence of an act or omission or of harm suffered by the claimant as a result thereof or 'that the harm was significant'. The claimant then could have an extension of three years after the latest date of gaining knowledge of any of those matters to bring proceedings. 115 Both of those provisions serve to highlight the notion that before proceedings are commenced there should be damages which are more than just trivial. 116 Further, during the passage of the Limitation Bill 2005 in the Parliament there was an exchange between Mr McGinty and Ms Walker concerning the differences between the Limitation Act 1935 and the Bill then under consideration in relation to the accrual of the cause of action (Hansard, 19 May 2005 at pp 2071b - 2077a). In answer to a question from Ms Walker about the 1935 Act Mr McGinty told the House that under the current law there needed to be a material injury. He went on to note that the wording had been changed to refer to 'a not insignificant injury'. Later, in the context of an injury which may take 20 years to become a material injury he noted that under the then current law, the time would expire before that injury significantly manifested itself. Again all of this points to the change from something being a material injury to one that can be described as something other than trivial, although I am conscious of what the chief justice had to say in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [43] about the care that should be taken to avoid scrutiny of parliamentary debates. (Page 32)
117 In my view, there is a substantial difference between a not insignificant injury and a significant injury. The former is something that crosses the line from being trivial whereas the latter is suggestive of something far more serious as the definition in the Macquarie Dictionary would suggest – 'important; of consequence'. 118 In the circumstances I am satisfied that on the findings that would be open to a tribunal of fact the cause of action accrued on 29 or latest 30 May 2006 when the plaintiff became aware that he had sustained a not insignificant personal injury that is to say the injury to his back and also had the first symptom, clinical sign or other manifestation of that injury consistent with him having sustained a not insignificant personal injury. 119 The evidence of the plaintiff points overwhelmingly to the fact that the plaintiff was well aware at that time as to how the accident had occurred, the circumstances in which it did occur and the result thereof. 120 On the assumption that the Limitation Act is applicable there is nothing in the Compensation Act under s 93K(4) or otherwise which affects that position. The limitation period in s 14 Limitation Act applies unless some other limitation provision as described in s 9 of the Act applies. As I have found, those limitation provisions have effect to oust the period in s 14 and the Act, not to put a gloss on it by adding another layer of provision. 121 It can be seen from my findings above that the plaintiff did become aware before 19 August 2006 that he had sustained a not insignificant personal injury that was caused by the accident at work.
Issue (e)(i) - is the reference in s 39 of the Limitation Act to becoming aware of an injury attributable to the conduct of the person, a reference to becoming aware of an injury in respect of which damages are then claimable/recoverable?
Relevant legislation
Limitation Act 2005 Section 39. Court may extend time to commence actions for personal injury …
(1) A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired. (2) …
(Page 33)
(3) On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues — (a) was not aware of the physical cause of the death or injury; (b) was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or (c) was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity. (4) On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware — (5) …
The plaintiff's submission 122 Counsel for the plaintiff argues that s 39(3)(b) deals with an awareness that the injury was attributable to the conduct of a person and the awareness or lack of awareness is related to whether there was a proper basis for making a legal claim against the defendant for damages at common law. Accordingly, in the context of a limitation provision relating to claims against defendants, counsel argues that being attributable to conduct of a person must mean that a person had an awareness that he had a claim or a potential claim against a defendant. 123 In that context it was argued that the level of the plaintiff's understanding of his legal position was relevant; as he put it that he understood that he had firstly a physical case and secondly that it was attributable to the conduct of the defendant sufficient to entitle him to make a claim at common law. (Page 34)
The defendant's submissions 124 The defence argues that the word 'attributable' means arising from or traceable to. It does not mean 'caused by negligence'. It is said that it is not necessary that the plaintiff know that the conduct is 'wrongful' or may give rise to a right to claim damages. The knowledge that is relevant is that the injury was attributable to 'the conduct of a person', not the negligence or wrongful conduct of a person. The word attributable is simply made referable to an act or omission rather than its legal quality. 125 In oral submissions, relying on authority which I will come to, counsel argued that the word 'attributable' is a term of connection not one of quality of conduct. He argued that the word means something like traceable so it is a backward-looking causation type term in that it is one that links a consequence back to an event so that one can attribute the later event to the earlier.
Findings 126 Mr Hancy for the defendant referred to Roncevich v Repatriation Commission [2005] HCA 115 in which the High Court was called upon to consider whether an injury to a soldier was to be taken to be a defence caused injury if it arose out of, or was attributable to, any defence service of the soldier. At [27] the court noted 'a causal link alone or a causal connection is capable of satisfying a test of attributability …'. At [55] that court noted that the need for a causative relationship is indicated by the phrase 'arose out of, or was attributable to'. In that case the issue that arose was whether or not the soldier's injury arose out of his service or arose out of a personal, voluntary or domestic act. 127 In Davis v Jacobs [1999] Lloyd's Rep Med 72 the Court of Appeal had occasion to consider the Limitation Act (UK) and in particular, having regard to the word 'attributable', in relation to certain symptoms suffered by the appellant following the administration of certain drugs. Brooke LJ, with whom the other members of the court agreed, noted that the relevant section of the English Act required knowledge of the fact 'that the injury was attributable in whole or in part to the act or omission which is alleged to cause negligence … or breach of duty'. Counsel for the appellant had submitted that the appellant did not know until 1996 of the omissions of the defendants in May 1989 'which had the causative effect of his not remaining on (or being taken off) (one of the drugs) and of being switched to (another drug), so that he did not know until he received the relevant advice from his expert advisers that his significant psychiatric injuries were attributable to these omissions'. It was noted (Page 35)
that, in answer to this submission, the courts had attributed a fairly broad meaning to the words 'the act or omission'. 128 His Lordship referred to Wilkinson v Ancliff (BLT) Limited [1986] 1 WLR 1352 which considered the use of the words 'act or omission' rather than 'conduct' in the relevant section. In that case Sir Thomas Bingham MR had said: … I do not think the meaning of section 14(1)(b) would be any different had the reference been to conduct. Time starts to run against the claimant when he knows that the personal injury on which he found his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied were a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has nothing to do with his working conditions. It is satisfied when he knows that his injury condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault. 129 In Davis the court noted that the task was to identify the date when Mr Davis first knew that his psychiatric injury, during the relevant period, was attributable to the prescription of the drugs. 130 Haward v Fawcett [2006] 1 WLR 682 was a case in which damages were claimed for negligent advice that had been given. Limitation was raised and tried as a preliminary issue. The head note to that case shows that 'knowledge' for the purposes of the relevant act meant knowing with sufficient confidence to justify embarking on the preliminaries to issue of a writ and that knowledge that the damage was 'attributable' in whole or in part to the acts or omissions of the defendant alleged to constitute negligence within the section meant knowledge in broad terms of the facts on which the claimant's complaint was based and of the defendants acts or omissions and knowing that there was a real possibility that those acts or omissions had been a cause of the damage. 131 In that case Lord Scott at [45] referred to Dobbie v Medway Health Authority [1994] 1 WLR 1234. This was a medical negligence case in which the Master of the Rolls said: She (the plaintiff) knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority's act or omission was (arguably) negligent or (Page 36)
blameworthy. But her want of that knowledge did not stop time beginning to run. 132 From that analysis it seems to me reasonably clear that the words in s 39(3)(b) Limitation Act 'attributable to the conduct of a person' does not require knowledge to the extent that a plaintiff is aware that the facts giving rise to the injury will support, as a matter of law, a claim in negligence or otherwise. It seems clear to me that all that is required is for a plaintiff to know that his or her injury was the clear and direct result of an act or omission on the part of another. As the Master of the Rolls noted in Dobbie, the want of knowledge that the acts or omissions were negligent or blameworthy did not stop time beginning to run. It is the causative effect that is important and needs to be known by the plaintiff. The example given in Davis of the man with a disabling cough or shortness of breath, set out above, amply illustrates the position.
Issue (e)(ii) - if so, and the limitation period had expired when the writ was issued, should the court now extend the time under s 39(3) on the basis that the plaintiff was not aware that his injury 'was attributable' to the negligence of the defendant, and can and should that leave be backdated (so as to ameliorate the effects of s 93K(4) of the Workers Compensation and Injury Management Act 1981 in the circumstances of this case)? 133 It seems to me that this is a rolled up question and contains two parts. The first part is whether the court should extend time and the second, whether the effects of such an order should be backdated. I will deal with the questions on that basis. 134 Further, it seems to me that the first part of the question is incorrectly worded. The section does not refer to an injury attributable to the negligence of the defendant. It refers to an injury attributable to the conduct of a person. I will deal with the question on that basis. 135 As I have noted previously, the evidence in this case, without even having to resort to the medical evidence, clearly shows that the plaintiff was aware that he had an injury, at the latest, by 30 May 2006. Further, by that date he was also well aware of the cause of that injury being initially the lifting of the Geneva and later by working on this equipment in a confined space and that such tasks had been directed to him by the other employee Richard. 136 If further support is required for the plaintiff's awareness of how the accident occurred and the circumstances in which it did occur and the result thereof before the expiry of the limitation period, at the latest (Page 37)
30 May 2009, one need only look at the allegations in the statement of claim. The statement of claim sets out the material facts relied upon by the plaintiff in his action. In particular at par 6 the plaintiff recites what he was doing on 29 May 2006 and what happened to him viz he suffered a back injury. 137 Further, by correspondence between 12 March 2008 and 20 April 2009 from the plaintiff's solicitors (exhibits 6A, B and C) it is also apparent that the plaintiff was aware of the circumstances of his accident and injury. In addition on 10 June 2009 the plaintiff's solicitor, Mr Nigam, swore an affidavit (exhibit 6D) in which at pars 3 and 4 he deposes to instructions from the plaintiff and to the aetiology of his injury. At par 6 he deposes that the plaintiff attended on him on 7 March 2008 in relation to his workers compensation claim. 138 Accordingly, the limitation period having expired on 30 May 2009, the plaintiff did not bring himself within s 39(3)(a). Further, in view of my findings, above, he was not only aware of the physical cause of his injury as at 30 May 2006 but he was also aware that that injury was attributable to the conduct of a person within the meaning to be attributed to those words set out above. In view of the way in which the question is expressed, I repeat, in my view, it is not necessary for him to be aware that those acts or omissions on the part of the employer would as a matter of law gives rise to a claim in negligence or otherwise. 139 That being the case, there is no power to extend time within which the action can be commenced. On that basis the second part of the question raised falls away.
Issues (c) and (f) - is s 14(1) procedural or substantive? Did the filing of an unconditional appearance by the defendant cure any defect in the commencement of the proceedings? 140 Both of these issues fall away. The defendant does not contend that the writ is a nullity.
Other matters 141 I have noted earlier that the plaintiff's wife was presented by the plaintiff for cross examination by the defendant. The plaintiff sought to lead no evidence from his wife. The defendant did not cross-examined. This situation led to argument and counterargument for the drawing of adverse inferences: Jones v Dunkel (1959) 101 CLR 298. In view of my findings, based largely on the evidence of the plaintiff himself, it is not (Page 38)
necessary for me to pursue this aspect further. It is a matter best left to the trial should a similar situation then occur. 142 The defendant also pressed for adverse findings as to the plaintiff's credibility arising out of a number of matters not least of which being the manner in which the plaintiff sought to answer questions and to pray in aid his lack of understanding of the English language. For similar reasons, it is not necessary for me to make and I decline to make any findings on credibility in relation to the plaintiff. It is simply unnecessary in view of my findings based upon the evidence that was laid before me. Again, these are matters best left for a trial.
Resolution of the issues raised 143 In answer to the questions raised in the statement of issues: |