| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BRAMWELL -v- THE WESTERN AUSTRALIA MUSEUM [2003] WADC 171 CORAM : WILLIAMS DCJ HEARD : 30 JULY 2003 DELIVERED : 8 AUGUST 2003 FILE NO/S : CIVO 37 of 2003 BETWEEN : GRAEME BRAMWELL Plaintiff
AND
THE WESTERN AUSTRALIA MUSEUM
Defendant
Catchwords: Application under s 47A of the Limitation Act 1935 to bring action for damages
Legislation: Limitation Act 1935
Workers' Compensation and Rehabilitation Act 1981
Result: Application successful
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Representation:
Counsel:
Plaintiff : Mr D M Bruns
Defendant : Mr A N Adam
Solicitors:
Plaintiff : Separovic & Associates
Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Hewitt v Benale Pty Ltd [2002] WASCA 163
Case(s) also cited:
Baker v Shire of Albany (1994) 14 WAR 46
Hughes v Minister for Health in his capacity as Board of East Pilbara Health Service [1999] WASCA 131
Jacobs v Minister for Health [2003] WADC 129
Minister for Community Welfare v Bennett, unreported; SCt of WA; Library No 5060; 2 September 1985
Posner v Roberts [1986] WAR 1
Victorian Railways Commissioners v Casaccio [1961] VR 157
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1 WILLIAMS DCJ: The plaintiff seeks leave, pursuant to s 47A of the Limitation Act 1935 to bring an action for damages for personal injury allegedly sustained in January 1999 and caused by the negligence of the defendant.
2 The relevant provisions of s 47A are as follows: "47A. Protection of persons acting in execution of statutory or other public duty (1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless — and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may ... (3)(a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as
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required by subsection (1) has been given to the prospective defendant. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose. (c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made. 3 The defendant opposes a grant of leave on a number of grounds and I will deal with those in turn. 4 The first point raised by the defendant is that the plaintiff did not give sufficient notice to the defendant under s 47A(3)(c) of the Act. 5 Attached to the affidavit of Lara House sworn 4 March 2003 is a copy of a letter written by the plaintiff's solicitors to the defendant's insurers dated 1 July 2003 indicating that the plaintiff intended to make a claim. The objection made by counsel for the defendant is that document does not state the grounds. In a letter dated 14 August 2002 the solicitors for the defendant wrote indicating that they would not consent to the commencement of common law proceedings outside the 12 month limitation period. Nowhere in the letter is there any enquiry as to what the cause of action is about. The plaintiff deposes to the fact that immediately following the alleged injury he reported the same to Mr Ian Godfrey the person in charge of him at the defendant's premises. Additionally he obtained a witness statement from Mr Godfrey as to the circumstances in which this occurred. 6 In my view the defendant had sufficient notice of the grounds on which the action would be based and this objection fails. 7 It is next said by counsel for the defendant that no mistake or reasonable cause has been shown for the delay in bringing the action.
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8 The plaintiff deposes in his affidavit of 25 July 2003 that he was not aware of the need to commence an action against the defendant within one year until he saw his solicitors on 28 November 2001. It is also apparent from the medical evidence that the plaintiff suffered a nervous breakdown in 2002.
9 In my view the fact that the plaintiff was not aware of the limitation period and by reason of the psychiatric condition, I am of the view that this amounts to reasonable cause. 10 The defendant next says that it has been materially prejudiced by the plaintiff's failure to give notice of the action within 12 months of the circumstances allegedly giving rise to the claim. 11 The defendant says that since the plaintiff's alleged injury the premises in which the plaintiff seeks to claim he sustained his injury have been renovated. These renovations have included: (a) Replacement of the roof which formerly provided ventilation. (b) Replacement of the door, which also provided ventilation. (c) Removal of an internal wall subsuming the premises into a larger room. 12 The plaintiff seeks to allege that he was injured by inhalation of chemical fumes. The quality of the ventilation to the premises is therefore highly relevant to determining the degree of exposure to any chemical fumes. 13 The defendant says that the plaintiff offers no evidence to show an absence of prejudice. 14 To that counsel for the plaintiff says that the defendant has not met the evidential onus and that the defendant has not shown that anything happened since January 2000 which would cause it to be prejudiced. 15 The only reference in the affidavit material as to when the work was done is the affidavit of Mr Adams sworn 10 April 2003. That affidavit deposes to the fact that he believed that the alterations to the chemical storage area has occurred more than 12 months after the onset of the plaintiff's alleged condition, but before the defendant was put on notice of the proposed action. There are however no grounds of belief and no source stated. In those circumstances in my view the defendant has not met the evidentiary onus of establishing that it was prejudiced.
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16 Lastly the defendant says that the proposed action is highly speculative, since the plaintiff will be most unlikely to have shown entitlement to an award of damages.
17 The defendant submits that the proposed action is speculative since: 18 An award of damages to a person against his deemed employer under s 175 of the Workers' Compensation and Rehabilitation Act 1981 is subject to the constraints of Pt IV, Div 2 of the Act: Hewitt v Benale Pty Ltd [2002] WASCA 163. 19 Counsel for the plaintiff says that the defendant's submissions on s 175 are premature. The plaintiff has not yet received any payments of workers' compensation and accordingly the six month period within which he may obtain an assessment or make an election has not yet begun running. Besides, this is not a s 175 situation. The plaintiff was not "employed" by the defendant or even "seconded"; he was redeployed there and remained at all times the employee of Water Corporation. There is no contract as contemplated by s 175(1). 20 I accept the submissions of the plaintiff in this respect. In my view the case is far from speculative. 21 It follows in my view that the plaintiff's application should succeed. |