Calgaret v Electricity Corporation

[2000] WADC 4

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CALGARET -v- ELECTRICITY CORPORATION [2000] WADC 4

CORAM:   BLAXELL DCJ

HEARD:   10 JANUARY 2000

DELIVERED          :   Delivered Extemporaneously on 10 JANUARY 2000 typed from tape and edited by Trial Judge.

FILE NO/S:   CIVO 1 of 2000

BETWEEN:   GARY LEON CALGARET

Plaintiff

AND

ELECTRICITY CORPORATION
Defendant

Catchwords:

Limitation of actions - Workers' compensation - Employer's liability - Damages - Application for leave to bring action - Turns on own facts

Legislation:

Limitation Act 1935 s47A

Crown Suits Act 1947 s6(3)

Result:

Leave granted

Representation:

Counsel:

Plaintiff:     Mr K Pratt

Defendant:     Mr N Beech

Solicitors:

Plaintiff:     Paul O'Halloran

Defendant:     Blake Dawson Waldron

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

Posner v Roberts (1986) WAR 1

Quinlivan v Portland Harbour Trust (1963) VR 25

Victorian Railways Commissioners v Casaccio (1961) VR 157

Case(s) also cited:

Re Monger; Exparte Woodford [1999] WASC 273

1. BLAXELL DCJ : In this matter I have had to prepare my reasons for decision as a matter of urgency and I reserve the right to elaborate and amend upon my reasons in due course should it prove necessary to do so. 

2. The plaintiff in this matter brings an application under s47A of the Limitation Act and/or s6(3) of the Crown Suits Act for leave to commence proceedings against the defendant for damages for personal injuries suffered by him in the course of his employment with the defendant on or about 12 January 1994. 

3. The evidence before me comes in the form of a number of affidavits from the plaintiff, his solicitor and from an employee of the defendant's insurers.  I have also heard viva voce evidence from the plaintiff. 

4. What all of these materials show is that the plaintiff on 12 January 1994 was employed with the defendant (then known as the State Energy Corporation) at the Bunbury power station as a cleaner.  On 12 January 1994 he was working approximately 10ft above floor level in the power station.  He was in some way perched on some pipes and was spraying the pipes with water.  While doing so, he sprayed water onto a power board or power box which exploded at a distance of approximately 15m away.  It is alleged that as a result of being startled by the explosion the plaintiff fell from the pipe - a distance of 10ft - and, as a result, suffered a knee injury. 

5. Since then the plaintiff has found it necessary to seek medical attention and treatment on a number of occasions and I have an affidavit setting out all of the medical history, which can be described as consistent throughout.  The plaintiff seems to have had persistent problems with his knee and the problems became more serious in early 1998 when, as he puts it, his knee collapsed a second time while he was walking through bush near Alice Springs. 

6. Upon developing this aggravation of his symptoms in early 1998, the plaintiff decided to seek legal advice for the first time and in November 1998 consulted his present solicitors.  At that time there was a legislative regime pursuant to s93D of the Workers' Compensation & Rehabilitation Act whereby a plaintiff could not commence a common law action as of right.  Leave had to be sought and an application for leave under s93D was lodged by the plaintiff on 8 December 1998, which was a relatively short time after he first saw his solicitors. 

7. During late 1999 legislative changes to the Workers' Compensation & Rehabilitation Act had the effect of removing this requirement for leave, but amendments to s93D imposed a new set of criteria that had to be met if the plaintiff was to obtain an award of damages.  The new legislation has also had the effect that the plaintiff is obliged to make an election and the materials and the evidence I have heard satisfy me that he has done what he can to make an election under the legislation as it now stands. 

8. There have been problems in effecting that election because in the event of any dispute as to the extent of his disability, his medical condition must be reviewed, it would seem, by a medical panel.  No doubt because of the holiday season and matters of that type, there has been a delay in having that issue resolved.  So as at the present date the plaintiff simply does not know whether he will be in a position to obtain an award of damages, assuming he can establish negligence, and of course he will not be any better informed prior to the six year limitation period expiring tomorrow. 

9. The present application for leave pursuant to s47A of the Limitation Act and s6 of the Crown Suits Act was lodged on 7 January this year.  The defence has responded by making some fairly swift enquiries to the best of its ability, and I have an affidavit from Mr Crawford sworn 10 January 2000 which states that because of the extremely short notice of the plaintiff's application, the defendant has not been able to determine whether any of the potential witnesses it might wish to call can be located or are in a position to provide evidence.  For that reason the defendant is unable to determine what prejudice it might suffer as a result of any decision by me today to grant leave to the plaintiff to issue proceedings. 

10. Section 47A of the Limitation Act and s6(3) of the Crown Suits Act are in very similar terms and in essence they impose an obligation upon a prospective plaintiff to give notice in writing giving reasonable information of the circumstances upon which a proposed action will be based, which notice must be given as soon as practicable after the event giving rise to the cause of action.  There is also a second obligation to commence action within the expiration of one year from the date on which the cause of action accrued. 

11. Those are the primary requirements but this Court does have a discretion to provide relief to a plaintiff who fails to comply with either or both of those requirements. In this regard subs (3) of s47A of the Limitation Act provides that where a court considers that the failure to give the required notice or the delay in bringing the action was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence, then the Court may if it thinks that it is just to do so grant leave to bring an action. 

12. As to the meaning of "mistake" and "reasonable cause" as used in that provision, the decision of Master Staples in Posner v Roberts (1986) WAR 1 is of value. At page 5 of that decision Master Staples quoted a number of Victorian authorities in support of the following propositions: firstly, that ignorance of the law is not a mistake. Furthermore, ignorance of the statutory requirements alone will not constitute reasonable cause but ignorance of those requirements may in all the circumstances constitute reasonable cause for relevant purposes. As to what is meant by "reasonable cause", Master Staples quoted a passage from the decision of Quinlivan v Portland Harbour Trust (1963) VR 25 where it was stated that reasonable cause in this context means:

    "A cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man." 

13. If the plaintiff is able to satisfy the Court that the delay or the failure to give notice was occasioned either by mistake or by other reasonable cause or that the prospective defendant is not materially prejudiced, and if one of those three criteria is met, then the Court does have a discretion to grant leave and leave should only be granted if the Court considers it just to do so. 

14. As to what is meant by the word "just" as used in the Limitation Act, Victorian Railways Commissioners v Casaccio (1961) VR 157, 160 is authority for the proposition that:

    "It is not essential for an applicant to show a prima facie case of liability.  In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought.  It may be a material consideration that such proof appears and is sufficient ground for holding that it is just to grant leave.  On the other hand, it may be quite enough if it appears the claim is not mala fide nor merely speculative or absurd." 

15. Assuming that a plaintiff has met one of the three primary criteria, the Court when considering whether or not it is just to grant leave is essentially conducting a balancing exercise and must consider the justice to the plaintiff as well as the justice to the defendant.  In that regard the prejudice that the defendant might sustain if leave is granted is a relevant consideration. 

16. Coming now to the facts of the present case, the findings I make are as follows.  I accept the plaintiff's evidence as to the reasons why he took no steps to commence common law proceedings or to give notice prior to seeing his solicitor in November 1998.  Having regard to the evidence he has given viva voce today, I consider that his ignorance of these obligations, combined with his belief that he was pursuing his entitlements by making claims as and when he did and by submitting reports and the like - amounted to reasonable cause for failing to comply with the Limitation Act prior to seeing a solicitor in November 1998. 

17. As to the delay that has occurred since then, as at November 1998, s93D of the Workers' Compensation & Rehabilitation Act prevented the commencement of common law proceedings and I consider that in those circumstances it was reasonable for the delay in commencing an action to have continued.  In this regard it is self‑evident that an action could not be commenced and that the delay in commencing it was excusable. 

18. As to the failure to give notice, it has been submitted that the defendant has still not had effective notice pursuant to subs (1) of s47A of the Limitation Act.  However, since the date of the application for leave under s93D, which was filed some time during December 1998, the defendant has certainly known of the plaintiff's desire to bring common law proceedings. 

19. The defendant has also received forms and had its own information as to the circumstances of the accident for workers compensation purposes and, in my view, in those circumstances one can effectively say that the defendant has had adequate notice of the plaintiff's intention to bring common law proceedings as of December 1998. 

20. I consider that the delay in giving notice prior to then has been shown to be due to reasonable cause and I consider that the delay in commencing an action up until today's date has been shown to be due to reasonable cause. So, in the circumstances, the plaintiff has satisfied at least one of those primary criteria as set out in subs (3) of s47A of the Limitation Act and I must now consider whether it is just to grant leave. 

21. As to that, I consider that the accident itself involves relatively simple circumstances and relatively simple facts.  Although the defendant is understandably in a difficult position because of the short notice of this application, I would very much doubt that a full investigation would turn up any relevant facts beyond those already known; namely, that the plaintiff was cleaning pipes 10ft above the floor of the power station.  He himself splashed water onto the power board, which blew up and caused him to fall. 

22. In his own affidavit, the plaintiff makes it clear that it was his watering which caused the explosion and, therefore, there are grounds there for the defendant to make out a case of contributory negligence.  So given the simplicity of the accident and the likely factual issues, I do not consider that there is going to be any great prejudice to the defence even if it fails to turn up the witnesses that it believes might be able to give assistance.  Having regard to the overall requirements of justice, I consider in all of those circumstances it is just to grant leave and for that reason I intend to grant the application.