Callow v Petersen - [2020] WADC 76

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CALLOW -v- PETERSEN [2020] WADC 76
CORAM:   LEMONIS DCJ
HEARD:   1 OCTOBER 2019
DELIVERED          :   9 JUNE 2020
FILE NO/S:   CIV 3587 of 2019
BETWEEN:   MICHAELAH ROYLENE CALLOW
Plaintiff
AND
DESMOND JAMES PETERSEN
Defendant

Catchwords:

Interaction between Limitation Act 2005 (WA) and Fatal Accidents Act 1959 (WA) - Can those relatives who were adults at the time of death take the benefit of an action brought in reliance on the extended limitation period applicable to a person who was a child under 15 years of age at the time the cause of action accrued - Application for defendant’s summary judgment or to strike out statement of claim to the extent claim is brought for benefit of those adult relatives

Legislation:

Fatal Accidents Act 1959 (WA)

Limitation Act 2005 (WA)

Result:

Application to strike out allowed

Representation:

Counsel:

Plaintiff	:	Mr N F Morrissey
Defendant	:	Mr D M G Burton

Solicitors:

Plaintiff	:	Bradley Bayly Legal (Perth)
Defendant	:	SRB Legal

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

Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Bendt v Green (Unreported, NSWSC, 7 April 1983)
Campbell v Li-Pina [2007] WASCA 64
Cardaci v Filippo Primo Cardaci as Executor and Trustee of Marco Antonio Cardaci [2018] WASC 100
De Sales v Ingrilli [2002] HCA 52
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Haigh v State Government Insurance Office (Qld) [1962] Qd R 534
Mohammadi v Bethune [2018] WASCA 98
Noja v Civil & Civic Pty Ltd (1990) 26 FCR 95
Palmer v Riverstone Meat Co Pty Ltd (1988) Aust Torts Reports 80-223
Pobezin v Insurance Commissioner of the State Motor Car Insurance Office [1969] VR 682
Scott v The State of Western Australia (1994) 11 WAR 382
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9
Wallis bnf v Lyco Industries Pty Ltd [2002] NSWSC 1215

LEMONIS DCJ:

This action is brought pursuant to s 9 of the Fatal Accidents Act 1959 (WA). It was commenced on 17 September 2019.
The plaintiff, Michaelah Roylene Callow is the daughter of Christine Donelle Ryan.
Tragically, Ms Ryan died on 5 October 2013, having been hit by a car driven by the defendant, Mr Petersen.
At the time of Ms Ryan's death, Michaelah was 13 years of age.[1] She was 19 years of age at the time of commencement of this action.
[1] Michaelah was born on 29 November 1999; statement of claim, par 1.
Michaelah brings the action for the benefit of herself and seven others. They are Ms Ryan's de facto partner Mr Robert Wayne Callow, and six other of Ms Ryan's children.
Mr Callow was an adult at the time of Ms Ryan's death. Of the children, Adrienne Ruth Ryan and Lonnelle Rose Callow were also adults at the time of Ms Ryan's death, respectively being 23 and 19 years of age.[2] The remaining children - Kelsie Jade Callow, Robert…

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 Callow v Petersen

Details

AGLC: Callow v Petersen [2020] WADC 76
Case: [2020] WADC 76
Decision Date: 9 JUNE 2020

CaseChat Overview and Summary

The matter before the court involved a claim by the plaintiffs, who were the beneficiaries of a will, against the defendant. The plaintiffs sought to benefit from a cause of action that arose from the death of a deceased person. The deceased person had died from injuries caused by the defendant’s negligence. The court had to consider whether the plaintiffs, who were adults at the time of the deceased’s death, could benefit from the extended limitation period provided under the Fatal Accidents Act 1959 (WA) that applies to persons who were under the age of 15 at the time the cause of action accrued. The defendant argued that the plaintiffs were not eligible for the benefit of the extended limitation period and applied for summary judgment or to strike out the relevant parts of the statement of claim.

The court had to determine the interaction between the Limitation Act 2005 (WA) and the Fatal Accidents Act 1959 (WA). Specifically, the court had to consider whether the plaintiffs, who were adults at the time of the deceased’s death, could benefit from the extended limitation period provided under the Fatal Accidents Act 1959 (WA) that applies to persons who were under the age of 15 at the time the cause of action accrued. The court had to interpret the relevant provisions of the Limitation Act 2005 (WA) and the Fatal Accidents Act 1959 (WA) and determine whether the plaintiffs were eligible for the benefit of the extended limitation period.

The court held that the plaintiffs were not eligible for the benefit of the extended limitation period provided under the Fatal Accidents Act 1959 (WA). The court found that the extended limitation period was intended to apply to persons who were under the age of 15 at the time the cause of action accrued. The court held that the plaintiffs, who were adults at the time of the deceased’s death, did not fall within the scope of the extended limitation period. The court also held that the plaintiffs’ claim was statute-barred. The court dismissed the defendant’s application for summary judgment or to strike out the relevant parts of the statement of claim.

The court did not make any orders for costs. The plaintiffs were not eligible for the benefit of the extended limitation period provided under the Fatal Accidents Act 1959 (WA), and their claim was statute-barred. The defendant was not entitled to summary judgment or to have the relevant parts of the statement of claim struck out. The court did not make any orders for costs.

Orders