Batten v VWA - [2016] VSC 751

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 05389

WAYNE DAVID BATTEN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY (in substitution of GINEVRA NOMINEES PTY LTD (deregistered))	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Wodonga
DATES OF HEARING:	21, 22, 23 November 2016
DATE OF RULING:	24 November 2016
CASE MAY BE CITED AS:	Batten v VWA
MEDIUM NEUTRAL CITATION:	[2016] VSC 751

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LIMITATION OF ACTIONS – Negligence – Personal injury – Limitation of Actions Act 1958 (Vic) – Whether limitation period should be extended under s 23A – Plaintiff seriously injured - Prejudice resulting from delay– Limitation period extended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti QC and Mr R. Morrow	Slater and Gordon
For the Defendant	Mr A. Moulds QC and Ms B. Myers	Wisewould Mahony Lawyers

HIS HONOUR:

The plaintiff alleges that he was injured in a workplace accident on a farm on the Oxley/Meadow Creek Road at Docker, near Greta, in the north-east of Victoria. The accident is said to have occurred on 7 February 2002 at cattle yards then owned by Ginevra Nominees Pty Ltd (‘Ginevra’). The accident and the resulting injuries are alleged by the plaintiff to be caused by the negligence of Ginevra in failing to provide safe cattle yards at the farm, failing to heed warnings about the shortcomings of the yards, and other associated particulars of negligence. The plaintiff also alleges breaches of the Occupational Health and Safety Act 1985, and a breach of a contract of employment said to have governed the relationship between Mr Batten and Ginevra.

The plaintiff did not commence proceedings for a serious injury certificate until 16 May 2012; that is more than 10 years after the accident. In this application he seeks leave under s 23A of the Limitation of Actions Act 1958 (‘LAA’) for an extension of time in which to issue proceedings.

The defendant in these proceedings is the Victorian WorkCover Authority (‘VWA’), which was substituted as the defendant for the deregistered Ginevra pursuant to s 601AG of the Corporations Act 2001.

Circumstances

The plaintiff is a farmer who, in 2002, was part of a family partnership with his father and his former wife. In addition to assisting with running the two Batten family farms, Mr Batten alleges he was employed by Ginevra as a farmhand. Ginevra was the family company of Mr & Mrs Ginevra Their son-in-law was a Mr Eric Milano. Ginevra Nominees either employed the plaintiff to perform work around Mr and Mrs Ginevra’s farm, instructed by Mr Milano, or it independently contracted out work around the farm. The precise status of Mr Batten’s relationship with Ginevra Nominees is disputed between the parties. If the plaintiff cannot establish that he is a ‘worker’ within the meaning of the Accident Compensation Act 1985 (‘ACA’) his case will fail.

Regardless of his status on 7 February 2002, Mr Batten attended at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batten v VWA

Details

AGLC: Batten v VWA [2016] VSC 751
Case: [2016] VSC 751
Decision Date: 24 November 2016

CaseChat Overview and Summary

The case of Batten v VWA involved a plaintiff who suffered serious injuries due to the defendant's negligence. The dispute centred around whether the statutory limitation period for commencing the action should be extended under section 23A of the Limitation of Actions Act 1958 (Vic). The matter was heard and determined in the Supreme Court of Victoria. The plaintiff argued that the court should extend the limitation period due to the significant prejudice caused by the delay in commencing the action, primarily due to the plaintiff's medical condition and mental incapacity following the accident.

The primary legal issue before the court was whether the statutory provisions allowing for the extension of the limitation period in cases of serious injury and prejudice due to delay applied to the circumstances of this case. The court had to consider the specific wording of section 23A of the Limitation of Actions Act 1958 (Vic), and whether the plaintiff's circumstances met the criteria for an extension. The court also needed to assess the extent of the prejudice resulting from the delay in commencing the action, and whether it was sufficiently significant to warrant an extension of the limitation period.

In determining the matter, the court found that the plaintiff's serious injuries and the significant prejudice resulting from the delay in commencing the action met the criteria for an extension under section 23A of the Limitation of Actions Act 1958 (Vic). The court emphasised the importance of ensuring that justice is done in cases where a plaintiff has been significantly prejudiced by a delay in commencing legal action. The court concluded that the statutory provisions allowing for an extension of the limitation period should apply, and granted the plaintiff's application for an extension. The court further found that the plaintiff's medical condition and mental incapacity following the accident contributed to the delay in commencing the action, and that the prejudice resulting from this delay was significant enough to warrant an extension of the limitation period.

The final orders of the court were that the limitation period for the plaintiff's action be extended, allowing the plaintiff to proceed with their claim for damages due to the defendant's negligence. The court's decision in this matter highlights the importance of ensuring that justice is done in cases where a plaintiff has been significantly prejudiced by a delay in commencing legal action, and that the statutory provisions allowing for an extension of the limitation period should be applied in appropriate circumstances.

Orders