Cigna Insurance Asia Pacific Ltd v Packer

[2001] WASCA 171

CIGNA INSURANCE ASIA PACIFIC LTD -v- PACKER [2001] WASCA 171

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 171
Court:	THE FULL COURT (WA)
Case No:	CIV:1194/2000	Heard:	15 FEBRUARY 2001
Coram:	MALCOLM CJ KENNEDY J PIDGEON J	Delivered:	5/06/01
No of pages:	15	Judgment Part:	1 of 1
Result:	Application by respondent dismissed
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Parties:	CIGNA INSURANCE ASIA PACIFIC LTD PHILIP JEFFREY PACKER
Catchwords:	Appeal and new trial Pleadings Reasons for judgment published indicating that appeal should be allowed and action dismissed Application by respondent for order that appeal be dismissed
Legislation:	Nil
Case References:	Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415 De L v Director General NSW Department of Community Services [No 2] (1997) 190 CLR 207 McAdam v Robertson (1999) 73 SASR 360 Smith v New South Wales Bar Association (1992) 176 CLR 256 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CIGNA INSURANCE ASIA PACIFIC LTD -v- PACKER [2001] WASCA 171 CORAM : MALCOLM CJ

KENNEDY J
PIDGEON J

HEARD : 15 FEBRUARY 2001 DELIVERED : 5 JUNE 2001 FILE NO/S : CIV 1194 of 2000 BETWEEN : CIGNA INSURANCE ASIA PACIFIC LTD

Appellant

AND

PHILIP JEFFREY PACKER
Respondent

Catchwords:

Appeal and new trial - Pleadings - Reasons for judgment published indicating that appeal should be allowed and action dismissed - Application by respondent for order that appeal be dismissed

Legislation:

Nil

Result:

Application by respondent dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr M H Zilko
Respondent : Mr G R Hancy

Solicitors:

Appellant : Jackson McDonald
Respondent : Ilbery Barblett

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

Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
De L v Director General NSW Department of Community Services [No 2] (1997) 190 CLR 207
McAdam v Robertson (1999) 73 SASR 360

Case(s) also cited:

Smith v New South Wales Bar Association (1992) 176 CLR 256
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

(Page 3)

1 MALCOLM CJ, PIDGEON J: This was an application for leave to appeal to the Full Court from an order made on 14 January 2000 by Commissioner Stavrianou in the District Court by which it was ordered that the District Court action the subject of these proceedings be listed for a pre-trial conference on an expedited basis. That order was made following the trial of a preliminary issue whether the respondent's claim against the appellant was statute-barred. The preliminary issue was determined in favour of the respondent. An order by Master Sanderson was made that the application for leave to appeal and the appeal could be heard together. This is what occurred.

2 On 22 December 2000 the reasons for judgment were published: Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415. The reasons for judgment of the Chief Justice were published by Kennedy J, who agreed with those reasons, and Pidgeon J also published reasons. In each case, for the reasons published, the members of the Court were of the opinion that the appeal should be allowed, the order of Commissioner Stavrianou be set aside and in lieu thereof there be an order that the respondent's action be dismissed. Counsel for the appellant moved for orders accordingly, as well as orders that the respondent pay the costs of the appeal and the action in the District Court to be taxed.

3 It was then submitted by counsel for the respondent that the action should not be dismissed on the basis that the determination of the preliminary issue still left the respondent with a valid claim with which to proceed. On the contrary, it was submitted that the appeal should be dismissed. The short point then taken was that the judgment on the appeal had determined that the cause of action had accrued upon the happening of permanent total disablement and, "until there had been a determination as an objective fact as to when total and permanent disablement occurs, then the cause of action does not commence". It was also submitted that "in the absence of an objective finding as to when total and permanent disablement had occurred", it was not appropriate to dismiss the action.

4 As all the members of the Full Court who heard the appeal were not present when the reasons for judgment were published, the further hearing of the respondent's submissions was adjourned to a date to be fixed. The matter was re-listed for further hearing on 15 February 2001. At the commencement of the further hearing, counsel for the respondent renewed the submission that the proper order of the Court should be to dismiss the appeal rather than to allow it.

(Page 4)

5 There can be no doubt that the Full Court has the necessary power to re-open and review a decision before orders disposing of an appeal have been perfected: McAdam v Robertson (1999) 73 SASR 360 at 367 per Doyle CJ. In De L v Director General NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215 per Toohey, Gaudron, McHugh, Gummow and Kirby JJ, their Honours said that:

"The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts of the law', [Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302] where 'there is some matter calling for review' [Smith v NSW Bar Association (1992) 176 CLR 256 at 265] or where 'the interests of justice so require'. [Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 322] It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', [Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; cf State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-46; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 168] ie without the attribution of neglect or default to the party seeking reopening. [Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303] By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. [Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394-395; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-29]."

6 Counsel for the respondent contended that the proceeding in the District Court was the trial of specific and defined preliminary issues.

(Page 5)

The first was described by the respondent in part of its submissions in this Court as follows:

"1. The applicant asserted that the hearing, which had been ordered solely to determine a 'limitation' question raised by the defence, could be determined on the insurance policy and the pleadings: TN 21, 41. Its task was to persuade the court to accept both of the following contentions made in or arising from its pleaded defence:

1.1 that the respondent's Permanent Total Disablement was (and must have been) suffered within 12 months of the accident on 20 March 1986;

1.2 that the insurer was in breach of contract immediately the insured event occurred within that period of 12 months."

7 The second issue, again as described by the respondent, was:

"The issues that were ordered to be determined, and that were determined, by the Commissioner were those specifically pleaded by the applicant in paragraphs 8 (a) (b) (c) and (e) of the reamended defence and no other issues: Order made on 25 October 1999, AB 23D-24C, 31. The respondent prepared and argued his case on the limited issues. He did not agree to the ambit of the issues being extended beyond those pleaded issues (TN 61-62, 65-66) and did not consent to the applicant's attempt without prior notice to broaden the issues at the second hearing: TN 76-77. The second hearing was convened to enable the respondent to place before the Court the full policy wording and to point out that the policy was governed by the Insurance Contracts Act 1984: TN 58-60."

8 The material before this Court does not include a copy of the formal order of the District Court relating to the trial of the preliminary issue. The summons by which the order was sought asked for an order that the issue raised by pars 8(a), (b), (c) and (e) of the re-amended defence be tried as a preliminary issue before the other issues in the action. Somewhat unusually, the reasons for bringing the action are stated in the summons. They were that the appellant wished to have tried as a preliminary issue the question whether or not the respondent's claim was statute-barred by virtue of the expiration of the limitation period.
(Page 6)

9 As Commissioner Stavrianou indicated in his reasons, regrettably, no statement of agreed facts was prepared for the trial of the preliminary issue. They were:

1. On 17 October 1983 the appellant issued to Woodside Offshore Petroleum Pty Ltd ("Woodside") a personal accident policy No 395C005817.

2. Mermaid Sound and Port Marine Services Pty Ltd ("Mermaid") is a wholly owned subsidiary of Woodside and the respondent was an insured person under the policy.

3. The policy was renewed from time to time and was in force in the period from 31 December 1985 until 31 December 1986.

4. On 20 March 1986 the respondent was injured in the course of his employment with Mermaid.

10 The learned Commissioner also noted as a fact that on 30 April 1993 and 12 September 1994 the appellant denied liability for the respondent's claim under the policy. The relevant provisions of the policy, including the definition of "permanent total disablement" are set out in the judgment of Malcolm CJ in Cigna Insurance Asia Pacific Ltd v Packer, supra, at pars 7 and 14.

11 In the judgment in the District Court it was specifically stated by the learned Commissioner that the limitation issue to be tried was that raised in pars 8(a), (b), (c) and (e) of the re-amended defence as follows:

"8. Further or alternatively, if the [respondent] suffered permanent total disablement (as defined in the policy), which is denied, then the [appellant] says that:

(a) the [respondent's] entitlement to the payment of benefits pursuant to the policy, and therefore the [respondent's] cause of action, was complete as at the date upon which the [respondent] suffered permanent total disablement (as defined in the policy);

(b) before the [respondent] could have been entitled to the payment of any benefits pursuant to the policy, the permanent total disablement (as defined in the policy) must have been suffered within 12 months of the alleged accident;

(Page 7)

(c) at the latest, any cause of action that the [respondent] had against the [appellant] must have therefore arisen by 20 March 1987;

(d) further or alternatively to subparas (a) to (c) herein, if, which is denied, the [respondent's] cause of action only arose once the [appellant] formed the view and/or advised the [respondent] that benefits were not payable under the policy, the [appellant] advised the [respondent's] agent by letter dated 15 July 1988 that it did not consider that the [respondent] had suffered permanent total disablement (as defined in the policy);

(e) by reason of the matters pleaded in subparas (a) to (c) inclusive and/or (d) herein, the limitation period for the [respondent's] cause of action had expired prior to the issuing of these proceedings by the [respondent], and the [respondent's] claim is therefore statute-barred."

12 The substantive issue in the appeal was said by Malcolm CJ (with whom Kennedy J agreed) at par 32 of his reasons to be the identification of the date on which the cause of action accrued. In the particular context of the trial of the preliminary issue, there was a preliminary question, namely, whether the liability of the appellant occurred on the happening of an insured event under the policy or the making of a claim under the policy and/or the denial by the insurer of the making of a claim under the policy. That question was resolved on the basis that it was the happening of the event upon which the liability of the appellant under the policy occurred. In the context of this case, permanent total disablement was, as pleaded in the respondent's statement of claim, suffered by him as a result of an accident on 20 March 1986 when he was working on the Withnell Bay and fell down a ladder and was injured.

13 Paragraph 7(c) of the statement of claim pleaded that:

"Permanent total disablement shall mean disablement by bodily injury caused other than by loss of limb or eye, which has lasted for at least 12 months and entirely prevents the insured person from engaging in any occupation for which he is fitted by reason of education, training or experience for the remainder of his life."

(Page 8)

14 Paragraph 11 of the statement of claim pleaded that:

"By reason of his injuries and disabilities from the accident the [respondent] has suffered bodily injury and permanent total disablement as defined in the policy."

15 The respondent pleaded that he made a claim under the policy on 30 August 1988 in respect of permanent total disablement. By letter dated 30 April 1993 the appellant denied liability on the ground that the respondent had not suffered permanent total disablement. The writ was issued on 27 August 1998, almost 10 years after the respondent first claimed on his own pleading to have suffered permanent total disablement. This Court was unanimously of the opinion that liability was not dependent upon the respondent making a claim, but was dependent upon the happening of the relevant defined event, namely, the suffering of bodily injury which resulted in "permanent total disablement": see par 32 of the judgment of the Chief Justice (with whom Kennedy J agreed); and par 74 at p33 - 34 in the judgment of Pidgeon J. Pidgeon J concluded that, on the pleadings, it was the respondent's case that:

"… the claim, as pleaded, is an injury which has within the twelve month period caused total permanent disablement. It is pleaded that as a result of the accident the respondent suffered injury to two vertebrae of the spine with a prolapsed disc and damage to the spinal cord, nerve fibres and soft tissues in the lumbo sacral area. It is pleaded that this has caused acute right sciatic pains down the right leg. It is pleaded, further, that by reason of these injuries the respondent had suffered bodily injury and permanent total disablement. In many cases the injuries received at the time of the occurrence of an accident can be so severe that the conclusion can be drawn at the time of the accident or within a short time thereafter that the person injured will, for the remainder of his life, be unable to engage in the occupation for which he is fitted by reason of his education, training and experience. I consider that this case, as pleaded, is one of those cases. This was therefore a fact that happened prior to 20 March 1988. In these circumstances, subject to the next question to be considered, it would have been open to the respondent to issue the writ he did on 20 March 1988. To follow the expanded definition of Lord Guest, the respondent on that date would have been able to state, in his statement of claim, every existing fact, which, if traversed, it would have

(Page 9)

been necessary to prove to obtain judgment. They were so stated in the claim that issued and they could have been so stated on 20 March 1987. The facts are the bodily injury received; the disablement caused by the bodily injury lasting for the twelve months and the allegation that the disablement caused by the bodily injury will entirely prevent the respondent engaging in the specified occupation for the remainder of his life. This last proposition is an inference to be drawn from the nature of the bodily injury which was received at the time of the original accident. The fact that at the time of trial, or at any later time, the disablement has continued is evidence to strengthen the inference but is not a fact to be pleaded. It is sufficient to plead, as the respondent did plead, that the bodily injury received at the time of the accident will cause permanent total disablement as defined in the policy."

16 It was submitted before this Court in support of the respondent's motion that the judgment of the Chief Justice (with which Kennedy J agreed) was based on a point which went outside the issue as it had been defined by the learned District Court Judge at par 21 of his reasons as follows:

"In this case the issue to be determined was clearly identified namely whether the cause of action must have arisen by the 20 March 1987."

17 That the issue was so confined was said to have been reinforced by the refusal of an application on the part of the appellant to the learned Commissioner for leave to amend the defence to plead that, in the alternative, the cause of action had accrued by 20 March 1988. As the learned Commissioner commented in par 21 and par 22 of his reasons:

"The [respondent] proceeded to trial on the narrow issue identified and I am not prepared to allow the [appellant] to raise issues other than as arise from the pleadings as were before the Court at the time the order was made for the trial of the preliminary issue. In this regard I accept the [respondent's] submission that the only issues to be determined are those specifically pleaded in pars 8 (a), (b), (c) and (e). Paragraph 8(b) of the re-amended defence asserts that permanent total disablement must be suffered within twelve months of the alleged accident. In my view the cause of action need not, as a matter of law, have arisen by the 20 March 1987,

(Page 10)

and there is nothing in the evidence before the Court to show, as a matter of law, that it did so. Accordingly, the limitation defence raised by pars 8(a), (b), (c) and (e) fails.

The [appellant's] application for leave to further amend the re-amended defence was made in the course of closing addresses. The application was opposed by counsel for the [respondent]. The [respondent] has pleaded that it made a claim pursuant to the policy in August 1988 and that the [appellant] denied it. The view, which I have formed of the policy, is that the cause of action did not accrue immediately upon the happening of an event. The proposed amendment seeks to maintain the assertion that the cause of action accrued on the happening of an event. Given my view as to when the cause of action accrued the application to amend is refused."

18 This Court overruled the decision of the learned Commissioner that the cause of action only accrued when a claim was made and held that the cause of action accrued upon the happening of the relevant event, namely the suffering of bodily injury which caused permanent total disablement. The application for leave to amend was clearly refused on the basis of the Commissioner's view, as expressed in par 20 of his reasons, that the cause of action did not accrue upon the happening of an event, but upon the making of a claim and its refusal or the failure of the appellant to deal with the claim within a reasonable time. While it was not found necessary to deal specifically with grounds 1, 2 and 3 of the appeal against the refusal of leave to amend, it is apparent from the reasons for judgment that the appellant was entitled to succeed on that point on the basis that the cause of action accrued on the happening of a specified event.

19 In par 53 and par 54 of his judgment at 27 Malcolm CJ said:

"In this case the applicant pleaded in its defence that the permanent total disablement must have been suffered within 12 months of the alleged accident on 20 March 1986 so that, at the latest, the cause of action accrued on 20 March 1987. Alternatively, it is said that if an additional 12 months were allowed for the total permanent disablement to be determined as having accrued, the relevant date would be 20 March 1988. For the reasons I have stated, I consider that both of these contentions as pleaded must fail. The result is that there is no plea by the defence which alleges an alternative date by which it is said that the respondent had been permanently totally

(Page 11)

disabled. The only facts pleaded are that the respondent made a claim on 30 August 1988 which was rejected by the applicant by letter dated 30 April 1993, on the basis of medical evidence that he was not permanently totally disabled. The applicant pleads as an alternative defence in par 8(d) of the defence that, if the cause of action arose:

'… only when the [applicant] formed the view and/or advised the [respondent's] agent by letter dated 15 July 1988 that it did not consider that the [respondent] had suffered Permanent Total Disablement …'

There is a conflict of allegations of fact. The correspondence was not before the learned District Court Judge. The respondent's case, however, was that by 30 August 1988 he had suffered permanent total disablement. If that be correct, his cause of action must have accrued by that date. Hence, it was necessary for his proceedings to be commenced within six years of 30 August 1988, that is by 30 August 1994. The writ was not issued until 27 August 1998, which was almost four years after the action became statute-barred."

20 The conclusion that it was the respondent's case that he had suffered permanent total disablement by 30 August 1988 is based on the pleading, first, that he was an insured person as defined by the Policy: par 8 of the statement of claim. Secondly, that he suffered an accident in the course of his employment on 20 March 1986 when he fell down a ladder and was injured: par 9. Thirdly, that as a result of the accident he suffered injuries: par 10. Fourthly, as pleaded in par 11:

"By reason of his injuries and disabilities from the accident the [respondent] has suffered Bodily Injury and Permanent Total Disablement as defined in the Policy."

21 Fifthly, as pleaded in par 12, on 30 August 1988, having been informed of the existence of the policy, the respondent made a claim under the policy in respect of the accident.

22 Sixthly, the claim made by the respondent under the policy was for the payment of a benefit of $93,500, being the compensation payable for Permanent Total Disablement, in respect of which claim the applicant denied liability: par 7(c) and (e) of the statement of claim, par 2(a) and (b) of the applicant's reply.

(Page 12)

23 It was on this basis that the Chief Justice concluded that it was necessarily to be implied from the pleadings on their face that the respondent's own case was that he had suffered permanent total disablement no later than 30 August 1988. It necessarily follows from that conclusion that the cause of action was statute-barred upon the expiration of six years from that date, namely by 30 August 1994. Hence, when the writ was ultimately issued on 27 August 1998, it was almost four years after the action had become statute-barred. The preliminary issue in the proceedings before the learned Commissioner and in this Court was whether the action was statute-barred by reason of the matters pleaded in pars 8(a), (b), (c) and (e) of the appellant's defence. While this Court found in favour of the appellant in respect of par 8(a), it found against the appellant in respect of pars 8(b) and (c). The respondent's cause of action was necessarily complete when the respondent had suffered permanent total disablement.

24 In any event, O 63 r 10(2) confers jurisdiction on the Full Court to give any judgment, or make any order on appeal which ought to have been made below, or to make such further or other orders as the case may require. In particular, O 63 r 10(3) empowers the Full Court to make any order to ensure the determination on the merits of the real question in controversy between the parties. This, of course, includes jurisdiction or power by way of amendment to any pleadings.

25 It follows that the application by the respondent should be dismissed.

26 KENNEDY J: On 25 October 1999, Viol DCJ directed that "the issue raised by pars 8(a), (b), (c) and (e) of the re-amended defence be tried as a preliminary issue before the other issues in the action".

27 Paragraph 8 in the re-amended defence of the appellant relevantly reads as follows:

"8. Further or alternatively, if the plaintiff suffered Permanent Total Disablement (as defined in the policy), which is denied, the defendant says that:

(a) the plaintiff's entitlement to the payment of benefits pursuant to the policy, and therefore the plaintiff's cause of action, was complete as at the date upon which the plaintiff suffered Permanent Total Disablement (as defined in the policy);

(Page 13)

(b) before the plaintiff could have been entitled to the payment of any benefits pursuant to the policy, the Permanent Total Disablement (as defined in the policy) must have been suffered within twelve months of the alleged accident;

(c) at the latest, any cause of action that the plaintiff had against the defendant must have therefore arisen by 20 March 1987;

(d) ….

(e) by reason of the matters pleaded in paragraphs (a) to (c) inclusive and/or (d) herein, the limitation period for the plaintiff's cause of action had expired prior to the issuing of these proceedings by the plaintiff and the plaintiff's claim is therefore statute-barred."

28 The respondent pleaded in par 9 of his statement of claim that the date on which he sustained the injury was 20 March 1986. There was no plea as to when he became totally and permanently disabled, although he pleaded in par 11 that he had suffered "Bodily Injury and Permanent Total Disablement", as defined in the policy, and that he had filled in a claim form in respect of the accident in August 1988, which claim had been sent to the appellant. The nature of the claim was not stated. He then pleaded that, having received no reply from the appellant, he made inquiries of the appellant in or about the year 1993, and that, by letter dated 30 April 1993, the appellant had denied that the respondent was permanently disabled from engaging in any occupation for the remainder of his life or, alternatively, that by letter dated 12 September 1994, the appellant had denied liability to pay benefits to the respondent under the policy.

29 In par 4 of its defence, the appellant denied that the respondent had suffered Bodily Injury and/or Permanent Total Disablement.

30 The only material provided to Commissioner Stavrianou, before whom the issue was tried, was, it appears, a copy of the personal accident policy. As the learned Commissioner indicated in his reasons for judgment, regrettably, no statement of agreed facts was provided. There were, however, some facts which were accepted by the parties for the purpose of the trial. They were as follows:

(Page 14)

1. On 17 October 1983, the defendant issued to Woodside Offshore Petroleum Pty Ltd a personal accident policy No 395C005817.

2. Mermaid Sound Port & Marine Services Pty Ltd is a wholly owned subsidiary of Woodside and the plaintiff was an insured person.

3. The policy was renewed from time to time and was in force in the period from 31 December 1985 until 31 December 1986.

4. On 20 March 1986, the plaintiff was injured in the course of his employment with Mermaid Sound Port & Marine Services Pty Ltd.

It was further noted in the Commissioner's reasons that, on 30 April 1993 and 12 September 1994, the appellant had denied liability for the plaintiff's claim under the policy.

31 The decision of this Court in the appeal was that par 8(a) of the re-amended defence correctly stated the position, and that the respondent's cause of action was complete as at the date upon which he suffered Permanent Total Disablement, as defined in the policy. However, although it sufficiently appears that the respondent claimed that he had suffered Permanent Total Disablement, nowhere does he plead the date upon which that disablement occurred.

32 In relation to par 8(b) of the re-amended defence, the Court concluded that there is no prerequisite under the policy for any Permanent Total Disablement of the insured person to have been suffered within 12 months of the alleged accident. The definition of Permanent Total Disablement does, however, require that the bodily injury which prevents the insured person from engaging in any occupation must have lasted for at least 12 months.

33 In relation to par 8(c) of the re-amended defence, having regard to the Court's decision with respect to par 8(b), the contention that the cause of action must have arisen by 20 March 1987 failed.

34 There being nothing in the pleadings or in the limited amount of material before us to indicate the date on which the respondent became permanently and totally disabled, and there being no agreement as to that date, I do not now consider that it was open to this Court, in deciding the preliminary issue, to proceed summarily to dismiss the respondent's claim at that stage of the proceedings. I would therefore re-open and review the decision the subject of this application by revoking the order for the dismissal of the action. I would add, however, that having made a claim

(Page 15)

for Permanent Total Disablement on 30 August 1988, the respondent may well face a difficult task in persuading a Judge that, notwithstanding this fact, the Permanent Total Disablement did not occur until at least six years later, after 27 August 1992, and thereby bringing his claim within the limitation period.