Brown v Minister for Education
[2003] WADC 182
•22 AUGUST 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BROWN -v- MINISTER FOR EDUCATION [2003] WADC 182
CORAM: GROVES DCJ
HEARD: 13 AUGUST 2003
DELIVERED : 22 AUGUST 2003
FILE NO/S: CIVO 129 of 2003
BETWEEN: JACLYN SHAUNA BROWN
Plaintiff
AND
MINISTER FOR EDUCATION
Defendant
Catchwords:
Limitation of actions - Public authority - Limitation Act 1935, s 40 and s 47A - Time to issue proceedings - Effect on infant - Time expired - Action statute barred
Legislation:
Limitation Act 1935, s 40 and s 47A
Result:
Application for leave to commence proceedings dismissed
Representation:
Counsel:
Plaintiff: Mr B L Nugawela
Defendant: Mr C Pruiti
Solicitors:
Plaintiff: Piu & Associates
Defendant: Basile Hawkins
Case(s) referred to in judgment(s):
Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305
Matheson v Commissioner of Main Roads [2001] WASCA 402
Northey v Minister for Education (1995) 13 SR (WA) 124
Scott v Western Australia (1994) 11 WAR 382
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Case(s) also cited:
Keddis v Western Australian Government Railways Commission (1994) 11 SR (WA) 232
GROVES DCJ: Jaclyn Shauna Brown, the applicant, was born on 29 August 1979. In 1985 when she was six years old she was a grade 1 student enrolled at Leeming Primary School. On 12 December 1985 in the school grounds she suffered an injury to her right eye which ultimately led to the loss of sight in that eye, its removal and replacement with an artificial eye.
The applicant deposes that the injury was sustained in the following circumstances.
"4.The accident occurred on 12 December 1985 just prior to afternoon recess.
5.I had been the first person in my class to tell afternoon news. As a reward for being the first person chosen I was allowed to leave the class a minute of two early.
6.I left the classroom and ran across a grassed area which was located immediately outside the classroom, over towards the play equipment. The play equipment was located at the back of the grassed area and was slightly off to one side.
7.As I was running behind the play equipment to climb onto it, I was caught in the right eye by a prong/stick from an Australian Grasstree plant.
8.The plant was quite large. I remember that it would have been close to double my size and the prongs/sticks coming out from the plant were very long. The plant was situated very close to the play equipment.
9.Immediately following the incident I felt pain in my right eye and my eye started to water. I think that I started screaming as a result of the pain.
10.Around the same time as the accident occurred another of my classmates was released from class. He heard my screams and came rushing over to me.
11.I then remember my teacher, Ms Hamill, coming over to me. She took me to sick bay."
The applicant was subsequently taken to Fremantle Hospital Emergency Department following which she was taken into surgery where splintered pieces of wood were removed from her right eye. She was released from hospital just prior to Christmas. Over the following years at primary school she underwent reattachment surgery on her right eye because the retina had detached on three occasions. Each occasion required a substantial period off school following the surgical procedure, the need to wear a patch on the eye for a period of time and wearing of darkened glasses outdoors. As her vision was not one hundred per cent clear it was necessary also that she be seated at the front of the class. In 1990 when she was in grade 6 she underwent the final surgical procedure to the eye. Unfortunately this was not successful and as a result she was then left totally blind in the right eye.
The applicant now seeks leave to commence proceedings against the Minister for Education (the Minister) pursuant to s 47A of the Limitation Act 1935 (the Act) in respect of her accident on 12 December 1985. The need to seek leave is necessitated by reason that the prerequisite to suing a public authority as prescribed by s 47A(1) of the Act have not been complied with.
The legislation
Section 40 of the Act provides:
"40.Persons under disability allowed time from removal of disability
If any person entitled to any such action as is referred to in section 38(1) was at the time of the cause of action accrued within the age of 18 years or insane, then such person may commence the same within such time as is before limited after being of full age or sane as if that was the time at which the cause of action accrued."
Under s 38 the limitation of time for commencing an action in tort is six years from the date when the cause of action arose. Thus the consequence of s 40 is that in the case of minors the six year limitation period does not commence to run until the minor has attained the age of 18 years. The applicant attained the age of 18 years on 29 August 1997. Hence in other circumstances the six year limitation period would not expire until 29 August 2003.
However because it is a public authority against which the applicant seeks to commence proceedings it is necessary to have regard to s 47A.
"47A.Protection of person 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 –
(a)the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued,
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 thereafter be brought while the act, neglect or default continues.
(2)A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given.
(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 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.
(4)(a) In this section "person" includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown.
(b)This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947.
It is the fact that the applicant neither gave notice nor commenced an action before the expiration of one year from the date on which the cause of action accrued as required by s 47A(1)(a) and (b).
In terms of s 47A(2) the applicant sought consent to the bringing of an action. By letter dated 17 April 2003 the applicant's solicitors wrote to the Education Department as follows:
"We understand that our client was a Grade 1 student at Leeming Primary School ("the premises") and as she ran from the classroom to climb onto play equipment was struck in the right eye by a protruding stem from a nearby plant ("the accident"). Our client underwent a series of surgical procedures but her treating practitioners were unable to save the eye.
We are instructed to claim damages for your negligence inter alia in:
1.Failing to maintain the premises in a safe condition so as to prevent the risk of injury to our client;
2.Failing to carry out adequate inspection of the plants on the premises and to remove any stems that posed a risk or hazard to our client;
3.Failing to barricade the plant so as to prevent contact with our client;
4.Failing to adequately supervise our client so as to prevent the accident; and
5.Failing to warn our client of the dangers of the plant and its protruding stems.
Kindly provide your response to the following:
1.Your attitude to liability for our client's claim; and
2.Whether you will provide your consent to the bringing of an action pursuant to s 47A(2) of the Limitation Act 1935.
We look forward to receiving your earliest reply given that the limitation period will expire on 28 August 2003."
The Education Department referred the claim to its insurer, the Insurance Commission of Western Australia (the insurer). By letter dated 26 May 2003 the insurer's solicitors whilst not responding directly to the questions asked, advised the applicant's solicitors:
"…We have now received instructions from our client that it will be opposing any s 47A application your client makes in this matter."
On 4 July 2003 the applicant's solicitors responded by giving notice pursuant to s 47A(3)(c) of intention to make an application to the Court for leave to bring an action. A copy of the applicant's affidavit sworn in support of this application was forwarded under cover of that letter.
The threshold issue – does s 40 apply?
In opposing the application for leave the Minister contends that s 40 of the Act does not apply to s 47A and hence the six year limitation period commenced on 12 December 1985, being the date the cause of action accrued, and expired six years thereafter on 12 December 1991. Accordingly, so it is contended, this action is statute barred.
The critical words are those which open s 47A(1) viz:
"Notwithstanding the foregoing provisions of this Act but subject to the provisions subsection (2) and (3), no action shall be brought…" etc.
In the context of this application what those words are saying is, in my opinion "in spite of" or "without regard to" (as to which see Shorter Oxford Dictionary definition of "notwithstanding") what is said in s 40 no action can be brought against a public authority unless ‑
(i)the prerequisites (1)(a) and (1)(b) are complied with or
(ii)steps are taken pursuant either to subsection (2) or (3) before the expiration of six years from the date on which the cause of action accrued.
On the other hand the applicant contends that s 40 of the Act does apply and that the six year limitation period does not begin to run until the applicant attained her majority, viz from 29 August 1997. It is contended that s 47A only impliedly repeals the "foregoing provisions", ie s 40 of the Act, to the extent that subsections (2) and (3) of s 47A irreconcilably conflict with the same. I do not accept that argument. First, the words commencing s 47A are clear and unambiguous. They are emphatic and unequivocal. As a matter of interpretation they can only be understood as saying that s 47A stands alone so far as proceedings against a public authority are concerned regardless of that which is prescribed by s 40. Secondly, I do not see that there is any irreconcilable conflict as between the two provisions in any event. The provisions of the two sections can be read together perfectly well – s 40 conferring special rights on persons under disability while s 47A has done no more than say that as regards a particular sort of defendant special rules apply.
Thus I conclude that the applicant's argument is flawed. Section 40 of the Act does not apply to s 47A. The time for the applicant to commence an action expired on 12 December 1991. Accordingly, the proposed action is statute barred. Furthermore, this Court has no power to extend time in which to commence the prospective proceedings beyond the six year limitation period. See Matheson v Commissioner of Main Roads [2001] WASCA 402 per Murray J at paras 22‑30. The limitation period is a substantive limitation and not simply a procedural matter. (See Stevens v Motor Vehicle Insurance Trust [1978] WAR 232). On the expiration of the limitation period the right of action is extinguished.
I have come to that view and hold to it without reliance on any authorities on point or comments made obiter on the point in other cases. That said, however, my interpretation is consistent with those authorities and with what has been said before which has been critical of the consequences of this legislation which results in this discriminatory outcome for this applicant. It is worthy that I should also add my criticism of this anachronism.
Criticism of s 47A
The history of s 47A is well documented in ch 10 of the Law Reform Commission of Western Australia's Report on Limitation and Notice of Actions delivered in January 1997. Without re‑stating what is there said it is pertinent to note that s 47A was introduced into the Limitation Act in 1954. This reform was based on a similar reform implemented in England by the Limitation Act (UK) 1939. In the same year, viz 1954 the English Parliament repealed the legislation providing special rules for public authorities. Since then the position in England has been that the limitation periods applicable in actions against public authorities are exactly the same as those applying to any other defendant.
Other Australian States adopted the reform. Tasmania abolished special limitation and notice requirements in 1954 and Queensland followed in 1956. In Victoria the special limitation periods were abolished in 1955 and the notice requirements repealed in 1966. In New South Wales the special rules were abolished in 1977. Neither the Australian Capital Territory nor the Northern Territory has any special rules of this kind. Outside Western Australia only in South Australia do such rules survive although the legislation there does provide a general extension provision which considerably ameliorates the previous position. (See LRC Report paras 10.12, 10.13 and 10.14). Similarly such special rules were abolished in New Zealand in 1962 and equivalent rules have also been abolished in most of the Canadian Provinces (LRC Report par 10.17).
Arguments traditionally advanced against any extension of liability have been rejected in each of those jurisdictions. Those arguments included:
(1)public authorities would have difficulty in preparing their budgets if limitation periods were extended;
(2)authorities would be severely handicapped by having to retain records for longer periods;
(3)there would be problems arising from loss of evidence, due to the substantial staff turnover of public authorities;
(4)the protection of special limitation periods was necessary because of the element of risk which public authorities were subject in running their affairs;
(5)there would be an increase in litigation;
(6)it would encourage false and fraudulent claims.
The New South Wales Law Reform Commission (Report 1975) refuted each of these arguments in detail. It was pointed out that public authorities were not in a position different from that of private corporations and that it was unfair to disadvantage individuals to help the budgets of public authorities. (See LRC Report par 10.13 and par 10.16).
In Western Australia the existence of the special rules was questioned by Rowland J in Scott v Western Australia (1994) 11 WAR 382. He said:
"This case again draws attention to the fact that the…Limitation Act 1935…does not apply in circumstances where s 47A of the Limitation Act has effect, nor to actions under the Fatal Accidents Act 1959 where similar provisions are incorporated and which Act provides its own code of limitation. One assumes that, as this matter has been criticised by the courts and commentators over many years, this position is accepted by Parliament. However, if that assumption is not correct, the matter requires serious consideration."
In the same matter Wallwork J said:
"With respect to the second respondent if this is an action to which s 47A of the Limitation Act would apply, s 40 of the Limitation Act does not govern s 47A because s 47A commences with the words:
'(1)Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsections (2) and (3) of this section no action shall be brought against any person (excluding the Crown) for any act…unless…'
The section then provides its own limitation sections which are similar to those in the Crown Suits Act 1947 (WA). Those periods have expired."
A similar view was taken by Kennedy DCJ in Northey v Minister for Education (1995) 13 SR (WA) 124. There the plaintiff was injured in the course of her employment at a government school, and nearly six years later applied for leave to sue for damages. The Judge commented at p 125:
"It has always been accepted that where employees sue employers who happen to be government departments, they must seek leave under the Limitation Act if the 12 months has expired. For my part I wonder if that is so and I wonder if these government departments should be in any better position than, for example, church organisations that run schools all over the State and whether it is the case that this is in the execution of a public duty and why it is they should be in a better position than other organisations…(H)ad this woman been working for a church school, the church school would not be able to make the complaint that the respondent is now making."
In Holland v Board of Management of King Edward Memorial Hospital for Women (1995) 14 SR (WA) 305 Kennedy DCJ followed the decision in Scott v Western Australia (supra). At p 310 she said:
"No doubt s 47A does say 'notwithstanding the foregoing provisions…' which read alone excludes those provisions, but then it goes on to say '…but subject to the provisions of subsections (2) and (3) of this section…' which at first glance would seem to me to bring back in the provisions of s 40. While those comments of Rowland and Wallwork JJ are obiter they are nevertheless extremely persuasive authority for the proposition that the provisions of s 40 are excluded by the provisions of s 47A and I believe I am obliged to follow them."
For my part I do not have any difficulty insofar as interpreting the opening words of s 47A. It does not occur to me that subsections (2) and (3) have any application to the provisions of s 40. I do agree however that I am obliged also to follow the comments of Rowland and Wallwork JJ.
It was the LRC's view that Western Australia should follow the example of most other jurisdictions. It recommended that the special limitation period and notice requirements in s 47A be abolished, leaving the ordinary limitation rules to apply in actions against public authorities. The failure of successive governments not to have regard to the repeal of such special limitation requirements in other jurisdictions or to respond to the repeated criticism of the courts and not to have adopted the recommendation of the Law Reform Commission is lamentable. In this respect, Western Australia needs to catch up with other jurisdictions. Reform is long overdue. Hopefully enlightenment will arrive one day, albeit that it will be too late for this applicant.
The consequence of the special limitation requirements has to be understood in this context. Had this applicant's injury been sustained in a private garden or in the grounds of a privately owned childcare centre or of a non‑government school she still would have until 28 August 2003 to issue a writ. That is, in terms of s 40 the six year limitation period would not commence to run from the date the incident occurred, but rather from the date on which she attained the age of 18 years which was 29 August 1997. This applicant is denied the opportunity of pursuing a claim only by reason of where she sustained the injury. Had it been sustained on other premises or elsewhere she could still have commenced proceedings.
The injustice impacting upon this applicant is readily apparent. As the LRC identified in its report, par 10.24, the special limitation and notice requirements imposed by s 47A are anachronistic, unfair and discriminatory, cannot be rationally justified, operate harshly and may frustrate just claims. All of those sentiments are apt to this applicant's situation.
In light of my conclusion on the threshold issue it is not necessary that I consider the s 47A(3) requirements.
Regrettably the application for leave must be dismissed.
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