Bee v ACN 116 198 460 Pty Ltd - [2016] WADC 152

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BEE -v- ACN 116 198 460 PTY LTD [2016] WADC 152

CORAM: WAGER DCJ

HEARD: 7 OCTOBER 2016

DELIVERED : 26 OCTOBER 2016

FILE NO/S: CIVO 163 of 2015

BETWEEN: KATRINA BEE
Plaintiff
AND
ACN 116 198 460 PTY LTD
Defendant

Catchwords:

Personal injury - Limitation period - Extension sought - Reasonable enquiry to establish identity - Section 39(3) of the Limitation Act 2005 (WA)

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr D Bruns
Defendant: Mr G Pynt

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: Mills Oakley

Case(s) referred to in judgment(s):

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Cressey v E Timm & Son Ltd [2005] 1 WLR 3926
Ghiassi v Industrial People Pty Ltd [2012] WADC 23
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10

WAGER DCJ: The plaintiff applies for an extension of time to commence her action 2693 of 2015 for personal injury pursuant to s 39(3) of the Limitation Act 2005 (the Act) or alternatively for leave to continue with action 935 of 2015. Both applications are opposed by the defendant ACN 116 198 460 Pty Ltd.
In her indorsement of claim for action 935 of 2015 against Great Southern Group Training Incorporated as first defendant and the business known as Advance Traffic Management (WA) Pty Ltd as the second defendant, the plaintiff claimed damages for personal injury sustained on 30 May 2012. That action was commenced on 18 March 2015 being within the 3 year limitation period for personal injury actions: s 14(1) of the Act. However, on 12 June 2015 Advance Traffic Management (WA) Pty Ltd advised the plaintiff's solicitors that they were not the company that should have been named as the second defendant. On 24 July 2015 after further inquiries the plaintiff commenced action 2693 of 2015 against the defendant ACN 116 198 460 Pty Ltd being 25 days after the period of 3 years had elapsed.
The originating summons for these applications was filed approximately five months after the expiration of the limitation period.
The plaintiff's indorsement of claim for both actions sets out that she was employed by Great Southern Group Training Incorporated where she was working under the direction and instruction of the defendant and the defendant required her to lift signage equipment, signage legs and sandbags off a truck onto the ground and whilst doing so she sustained injury, which accident was caused by the negligence of the defendant.
Given that it is an action for personal injury, s 39(3) of the Act applies in respect of an extension of time. Relevantly s 39(3) states:
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 –
…
(b)was aware of the physical case of…

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.

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Details

Case: [2016] WADC 152
Decision Date: 26 OCTOBER 2016

CaseChat Overview and Summary

The plaintiff, Bee, filed a case against ACN 116 198 460 Pty Ltd for personal injury. The dispute centres on whether the limitation period for commencing the action should be extended, and if so, under what provisions of the Limitation Act 2005 (WA). The case was heard in the District Court of Western Australia. The primary issue before the court was whether the plaintiff had conducted a reasonable enquiry to establish the identity of the defendant company responsible for the injury. Additionally, the court needed to determine if the statutory provisions, particularly sections 39(3) and 39(4) of the Act, justified an extension of the limitation period.

The court examined the arguments presented by the plaintiff regarding sections 39(3)(b) and 39(4) of the Act, which pertain to the extension of the limitation period in personal injury cases. The plaintiff argued that the case was analogous to Ghiassi v Industrial People Pty Ltd, where the court had extended the limitation period based on the plaintiff's lack of knowledge about the employer's identity. However, the court found that the circumstances in the present case were different, as the plaintiff was aware that the injury was caused by the host company contracted by Great Southern Group Incorporated. The plaintiff's belief about the identity of the company did not affect the attribution of the injury to the responsible party. Consequently, the court concluded that sections 39(3)(b) and 39(4) did not apply, and it was necessary to consider section 39(3)(c) of the Act. The court also noted that further consideration of section 44 of the Act might be required, which mandates the court to consider whether the delay would unacceptably diminish the prospects of a fair trial or significantly prejudice the defendant.

The court's reasoning led to the conclusion that the plaintiff's application for an extension of the limitation period was not supported by the statutory provisions in question. The court determined that the plaintiff had not demonstrated a reasonable enquiry to establish the identity of the defendant company, and thus, the statutory criteria for extending the limitation period were not met. The plaintiff's claim was dismissed on the basis that the statutory provisions did not apply to the facts of the case.

The final orders of the court were that the plaintiff's application for an extension of the limitation period was denied, and the claim against ACN 116 198 460 Pty Ltd was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In considering the application I must also have regard to s 44 of the Act:44. Further matters for court's consideration on extension applicationsWhen deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to —(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action). The plaintiff also argues that s 39(3)(b) and s 39(4) of the Act need to be considered. Section 39(3) requires the court to be satisfied that when the limitation period expired a person to whom the cause of action accrues was aware of the physical cause of the injury but was not aware that the injury was attributable to the conduct of a person. Section 39(4) relates to s 39(3)(b):39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959…(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 —(a)of the physical cause of the death or injury;(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and(c)of the identity of the person mentioned in paragraph (b). The plaintiff argues that s 39(3)(b) and s 39(4) of the Act apply because this case is analogous to Ghiassi v Industrial People Pty Ltd [2012] WADC 23 in which O'Neal DCJ considered that s 39(3)(b) of the Act applied. In that case the plaintiff was unloading a truck onto a pallet on the tines of a forklift driven by Mr Stafford. The plaintiff mistakenly believed Mr Stafford was an employee of the depot where the injury occurred and for that reason he did not make any inquiries about the true identity of Mr Stafford's employer. The claim against the defendant company in that case however was not one alleging personal liability, rather vicarious liability. It could not be said that the injury the plaintiff sustained was attributable to the conduct of the defendant named in error. It was attributable to Mr Stafford and/or to his employer. The facts in the present case are totally different. The plaintiff knew that the physical injury was caused by the host company that had contracted with Great Southern Group Incorporated. Whether that company was named Advance Traffic Management (WA) Pty Ltd, Albany Traffic Control or ACN 116 198 460 Pty Ltd, the injury was attributable to that person. Accordingly, I do not accept that s 39(3)(b) and s 39(3)(4) of the Act apply. I need to consider s 39(3)(c) of the Act and, if a point is reached where further consideration is appropriate, s 44 of the Act. The history of the plaintiff's claim is that the plaintiff sustained the injury on 30 May 2012.