Legal Research
Cases
Casey v Alcock

Casey v Alcock

Case [2009] ACTCA 1 23 January 2009

Limitation Periods

Duty of Care

Appeal

Statutory Construction

Breach

Negligence & Tort

Statutory Interpretation

Civil Procedure

Type to search within this case.

ANDREW CASEY v RICHARD LUKE ALCOCK
[2009] ACTCA 1 (23 January 2009)

LIMITATION OF ACTIONS – tort – negligence – personal injury – whether statement admitting liability made for purposes of meeting statutory obligation to give written notice stating whether liability is admitted or denied constitutes confirmation of cause of action such that period of time prior to statement being made does not count in reckoning of limitation period – whether statement involuntary where made pursuant to statutory obligation

Held: statement not involuntary where made pursuant to statutory obligation – leave to appeal refused.

LIMITATION OF ACTIONS – tort – negligence – personal injury – whether statement admitting liability made for purposes of meeting obligation to give written notice stating whether liability is admitted or denied constitutes confirmation of cause of action such that period of time prior to statement being made does not count in reckoning of limitation period – whether legislative introduction of obligation to give written notice stating whether liability is admitted or denied resulted in implied repeal or should result in reading down of existing statutory provision relating to confirmation of cause of action – nature of inconsistency between Acts that gives rise to repeal or reading down – policy or purpose of legislation – nature of approach to statutory construction – relevance of Review of the Law of Negligence Report (“Ipp Report”), explanatory statement and debates in Legislative Assembly

Held: no inconsistency between Acts that has resulted in implied repeal or should result in reading down – leave to appeal refused.

Limitation Act 1985 (ACT) s 16B, s 32

Civil Law (Wrongs) Act 2002 (ACT) Pt 5, s 61

Human Rights Act 1998 (UK) s 3, s 7

Legislation Act 2001 (ACT) s 139

Human Rights Act 2004 (ACT) ss 21, 22, 30

Mediation Act 1997 (ACT) s 9

Canadian Bill of Rights, s 1(b)

Canadian Charter of Rights and Freedoms, s 15(1)

Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT)
Limitation Act 1969 (NSW) s 54
Limitation Act 1939 (UK)
Acts Interpretation Act 1901 (Cth) s 15AA

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, art 6 (entered into force 3 September 1953)

Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9

Ghaidan v Godin-Mendoza [2004] 2 AC 557

Stubbings and Ors v United Kingdom (1997) 23 EHRR 213

Suche v R (1987) 37 DLR (4th) 474

Streng v Winchester (Township) (1986) 56 OR (2d) 649

Goode v Martin [2002] 1 All ER 620

R v A [2002] 1 AC 45

Rodgers v Rodgers (1964) 114 CLR 608

Brunton v O’Bryan & Co Pty Ltd (Unreported, NSWCA, Kirby P, McHugh and Clarke JJA, 307/86, 4 August 1988)

Donovan v Gwentoys Ltd [1990] 1 All ER 1018

Cholmondeley v Clinton & Ors (1820) 2 Jac & W 1; 37 ER 527

Board of Trade vCayzer Irvine & Co Ltd [1927] AC 610

R B Policies at…

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 Casey v Alcock

Details

AGLC: Casey v Alcock [2009] ACTCA 1
Case: [2009] ACTCA 1
Decision Date

CaseChat Overview and Summary

This case concerned an application for leave to appeal a decision of the Supreme Court of the Australian Capital Territory, which held that the plaintiff's cause of action was not barred by the Limitation Act 1985 (ACT). The plaintiff had commenced proceedings on 1 May 2007, more than three years after the motor vehicle accident on 20 December 2003, which would ordinarily render the action out of time under section 16B of the Limitation Act. However, section 32 of the same Act provides that the limitation period does not run prior to a confirmation of the cause of action by the person against whom it lies.

The central legal issues before the Court of Appeal were whether a statement admitting liability, made in response to a statutory obligation under the Civil Law (Wrongs) Act 2002 (ACT) to provide written notice of whether liability is admitted or denied, constituted a confirmation of the cause of action for the purposes of section 32 of the Limitation Act. A further issue was whether such a statement, made pursuant to a statutory obligation, could be considered involuntary. The court also considered whether the legislative introduction of the obligation to provide such notice impliedly repealed or required a reading down of the existing statutory provision relating to confirmation of a cause of action, examining the policy and purpose of the relevant legislation and principles of statutory construction.

The Court of Appeal held that a statement admitting liability made in response to the statutory obligation under section 61 of the Civil Law (Wrongs) Act was not involuntary. The court found no inconsistency between the two Acts that would result in an implied repeal or require a reading down of section 32 of the Limitation Act. The court reasoned that the purpose of section 61 was to facilitate early resolution of claims, and an admission of liability made in compliance with this provision could still operate as a confirmation of the cause of action under section 32.

The application for leave to appeal was dismissed with costs.

Orders