Cunningham v City of Wanneroo - [2002] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CUNNINGHAM -v- CITY OF WANNEROO [2002] WADC 39

CORAM: MARTINO DCJ

HEARD: 8 FEBRUARY 2002

DELIVERED : Delivered Extemporaneously on 8 FEBRUARY 2002 typed from tape and edited by Trial Judge

FILE NO/S: CIVO 132 of 2001

BETWEEN: KEITH RAYMOND CUNNINGHAM
Plaintiff
AND
CITY OF WANNEROO
Defendant

Catchwords:

Limitation of actions - Local government authority - Whether leave needed for employee to bring action for damages for personal injuries

Legislation:

Limitation Act 1935, s 47A

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr R R Cywicki
Defendant: Mr M L C Salmon

Solicitors:

Plaintiff: Leonard Cohen & Co
Defendant: Phillips Fox

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

Alcoa of Australia Ltd v State Energy Commission of Western Australia, unreported; SCt of WA; Library Number 950530; 5 October 1995
Broun v Western Australian Government Railways Commission (1998) 20 SR (WA) 59
Lokan v Metropolitan Cemeteries Board (1997) 18 SR (WA) 125
Quinlivan v Portland Harbour Trust [1963] VR 25
State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 91 LGERA 138
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

Case(s) also cited:

Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189
Cooke v Gill (1873) LR8CP 107
Culum v Board of Management of Sir Charles Gairdner Hospital (1993) 9 SR (WA) 76
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
London Congregational Union Inc v Harriss & Harriss [1988] 1 All ER 15
Mathieson v Commissioner for Main Roads & Anor [2001] WASCA 402
Nicholls v Minister for Health (1992) 8 SR (WA) 310
Pilbara Iron Ore Ltd & Anor v Bonotto [1994] 11 WAR 348
Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661
Stanko v Canning City Council (1992) 7 WAR 542

MARTINO DCJ: Until a date in February 1996 the plaintiff was employed by the defendant as a reticulation supervisor. The plaintiff claims that as a result of events which occurred in the course of that employment from 1994 until when he ceased that employment he has suffered a psychiatric illness. By this application he applies for leave to bring an action against the defendant pursuant to s 47A of the Limitation Act 1935.
The relevant chronology of events is as follows. In January 1994 he sought medical attention for anxiety and he sought that attention from time to time after that. On 5 July 1995 he reported anxiety attacks to an officer of the defendant and on 7 July 1995 he lodged a claim for workers compensation with the defendant in which he claimed that he suffered anxiety attacks as a result of senior management's threats regarding future employment and pressure brought on by parks management. In his claim for compensation he said:
"This has been happening over 4 and a half years but particularly bad since January 1994."
After that claim was lodged the defendant's workers compensation insurer arranged for the plaintiff to provide a detailed statutory declaration of his version of relevant events. In October 1995 the plaintiff's workers compensation claim was settled on a "without prejudice" basis for six weeks' weekly payments of compensation.
The plaintiff continued to provide certificates from doctors certifying that he was suffering from depression and anxiety until 16 February 1996. On 29 February 1996 the plaintiff resigned from his employment with the defendant. Thereafter the defendant heard nothing further from the plaintiff until 16 February 2001 when the plaintiff's solicitors wrote to the defendant's workers compensation insurer requesting the worker's compensation file.
On 31 May 2001 the plaintiff consulted Dr Paul Skerritt, psychiatrist, and on 11 June 2001 the plaintiff's solicitors wrote to the defendant's workers compensation insurer enquiring whether the defendant consented to a writ being issued out of the time limited by s 47A of the Limitation Act. On 5 July 2001 the defendant's workers compensation insurer wrote to the plaintiff's solicitors informing them that no consent would be provided.
On 7 September 2001 the application for leave to bring the action was lodged in this court. On 8 February 2002 the application was listed for a special appointment on 27 February 2002. Yesterday the plaintiff's solicitors wrote to the court stating it had come to their attention that the six year time period may expire on 23 February 2002 and requesting that the application be listed urgently today, and the application has been listed before me this afternoon.
A threshold question which I raised with the parties before today's hearing, by my associate contacting solicitors for the parties and referring them to the decisions of Lokan v Metropolitan Cemeteries Board (1997) 18 SR (WA) 125, and Broun v Western Australian Government Railways Commission (1998) 20 SR (WA) 59, is whether in fact leave is required under s 47A of the Limitation Act. Section 47A provides that no action shall be brought against any person 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 the procedures therein set out have been followed, including the action being commenced 1 year from that date on which the cause of action accrued.
In Lokan v Metropolitan Cemeteries Board (supra), O'Sullivan DCJ referred to a number of authorities including the decision at first instance of Parker J in Alcoa of Australia Ltd v State Energy Commission of Western Australia, unreported; SCt of WA; Library Number 950530; 5 October 1995 and on appeal State Energy Commission of Western Australia v Alcoa of Australia Ltd (1996) 91 LGERA 138. He concluded that the employment by the Metropolitan Cemeteries Board of the plaintiff as a grave digger was not an act done in pursuance or execution of the Cemeteries Act 1986 under which the Metropolitan Cemeteries Board had powers, duties and authorities in relation to the care, control and management of cemeteries.
The reason for that conclusion was that the employment of the plaintiff was not something for which the Cemeteries Board required any statutory authority and it could not be described as any neglect or default in the execution of an Act, public duty or authority.
That principle was applied by Williams DCJ in Broun v Western Australian Government Railways Commission (supra). In that case the plaintiff was employed by the defendant to work on railways and the defendant had a duty to maintain railway tracks but because the defendant had wide powers of execution the employment of the plaintiff was a secondary duty not within the protection of s 47A of the Act.
In the case before me it seems to be even clearer that leave is not required. The function of the defendant is to provide good government for people within its district. The employment of someone to supervise reticulation on parks within that district seems to me not to be an act done pursuant to the execution of any Act, public duty or authority of the defendant and so I conclude that leave is not required under s 47A of the Limitation Act 1935.
If leave had been required the plaintiff contended that there had been a mistake or other reasonable cause for the plaintiff not giving notice within the prescribed time because he was expecting his depression would resolve and, the submission goes, has demonstrated reasonable cause for the delay.
In support of that argument the plaintiff has sworn an affidavit on 10 September 2001 and counsel for the plaintiff points to the fact that he deposes that until he saw Dr Skerritt he had taken no further action against the defendant as he had an expectation that his employment‑related depression would eventually resolve. But in the same affidavit the plaintiff has deposed that his depressive illness has continued throughout the period and I note that the plaintiff's solicitors wrote to the defendant's workers compensation insurers before the plaintiff consulted Dr Paul Skerritt.
A reasonable cause is a cause which a reasonable person would regard as sufficient - a cause consistent with a reasonable standard of conduct, the kind of thing that might be expected to delay the giving of notice by a reasonable man: Quinlivan v Portland Harbour Trust [1963] VR 25.
I do not regard the fact that until the plaintiff saw Dr Skerritt he thought his depression would resolve as a reasonable cause on the facts of this case where the plaintiff's case is that he has suffered depression throughout that period. The plaintiff also submits by his counsel that the defendant has suffered no material prejudice by the relevant delay.
The defendant has an evidentiary onus to bear but the plaintiff carries the ultimate onus of satisfying the court that the defendant is not materially prejudiced by the relevant delay: Stevens v Motor Vehicle Insurance Trust [1978] WAR 232.
In this case there are two relevant issues of fact that would require investigation. One is the facts as to what occurred when the plaintiff was employed by the defendant. In that regard I am satisfied that the defendant has not suffered any material prejudice because it had obtained a full statutory declaration from the plaintiff soon after he reported his psychiatric condition and there is no evidence that it has been unable to obtain evidence from the people identified in its declaration. The second area is the facts which occurred between February 1996, when the plaintiff ceased his employment with the defendant, and February 2001, when the plaintiff's solicitors wrote to the defendant's worker's compensation insurer.
Because the plaintiff's claim is for psychiatric injury an accurate history of what has occurred to date is essential to determine the nature of the plaintiff's current condition and the cause of that current condition. Because the plaintiff has not complied with s 47A of the Limitation Act the defendant has been precluded from investigating contemporaneously what has occurred since February 1996 and in my view that is a clear prejudice that it has suffered, which is a material prejudice.
For those reasons I would not have granted leave under s 47A of the Limitation Act, however, as I have concluded earlier, in any event it is my view that leave is not required.