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Dollisson v Australian Rail Track Corporation Limited

Dollisson v Australian Rail Track Corporation Limited

Case [2019] NSWSC 870 12 July 2019

Limitation Periods

Statutory Interpretation

Compensable Injury

Personal Injury Law

Workers' Compensation

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Supreme Court

New South Wales

Medium Neutral Citation: Dollisson v Australian Rail Track Corporation Limited [2019] NSWSC 870
Hearing dates: 18 February 2019
Date of orders: 12 July 2019
Decision date: 12 July 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Leave is granted to the first defendant to make the amendment set out in para [1] in its defence to the amended statement of claim filed 7 June 2018.

(2) Pursuant to r 17.2(2) of the Uniform Civil Procedure Rules 2005 (NSW), leave is granted to the first defendant to withdraw the admission in para [1] of its defence to the amended statement of claim filed 7 June 2018, to the extent that it constitutes an admission that the injuries to the plaintiff constituted “serious injury” under the Accident Compensation Act 1985 (Vic).

(3) Pursuant to s 27L of the Limitation of Actions Act 1958 (Vic), the limitation period in relation to the plaintiff’s cause of action against the first defendant and second defendant is extended up to and including 6 July 2018.

(4) Costs in relation to the plaintiff’s notice of motion filed 6 July 2018 are reserved.

(5) The first defendant’s notice of motion filed 18 December 2018 is dismissed.

(6) The first defendant is to pay the plaintiff’s costs of its notice of motion.
(7) The matter is stood over for direction at 9.00 am before the Registrar.
Catchwords:
PRACTICE AND PROCEDURE — Limitation of actions — Personal injury — Limitation of Actions Act 1958 (Vic) — Whether the cause of action was discoverable by the plaintiff within the meaning of s 27D — Application for extension under s 27L — Court's discretion to extend limitation period — Where the plaintiff was allegedly given incorrect legal advice as to the availability of a public liability claim
Accident compensation — Workers compensation — Accident Compensation Act 1985 (Vic) — Whether the plaintiff’s claim is barred by s 134AB — Whether the injury is a “compensable injury” under the Act — Where the plaintiff’s employment is not connected to Victoria pursuant to s 80
Legislation Cited: Accident Compensation Act 1985 (Vic), ss 80, 81, 82, 83, 91, 104B, 134AB
Choice of Law (Limitation Periods) Act 1993 (NSW), s 6
Director of Public Prosecutions Act 1986 (NSW), s 15A
Jurisdiction of Courts (Cross-Vesting) Act 1989 NSW
Limitation Act 1969 (NSW), ss 50C, 50D
Limitation of Actions Act 1958 (Vic), ss 27D, 27F, 27K, 27L
Workers Compensation Act 1987 (NSW)
Workers Compensation Act 1987 (NSW), s 9AA
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Baker-Morrison v New South Wales [2009] NSWCA 35
Banwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1
Delai v Western District Health Service [2009] VSC 151
Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232
Gordon v Norwegian…

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 Dollisson v Australian Rail Track Corporation Limited

Details

AGLC: Dollisson v Australian Rail Track Corporation Limited [2019] NSWSC 870
Case: [2019] NSWSC 870
Decision Date: 12 July 2019

CaseChat Overview and Summary

In the matter of Dollisson v Australian Rail Track Corporation Limited, the plaintiff, Mr. Dollisson, initiated legal proceedings against the defendant, Australian Rail Track Corporation Limited, seeking damages for injuries sustained in an incident. The dispute pertains to the timeliness of the plaintiff’s legal action, given the statutory limitation period stipulated by the Limitation of Actions Act 1958 (Vic), and whether the plaintiff's claim is barred by provisions within the Accident Compensation Act 1985 (Vic). The case was heard in the County Court of Victoria.

The primary legal issues addressed by the court involved the interpretation and application of the Limitation of Actions Act 1958 (Vic) in the context of personal injury claims, specifically whether the plaintiff's cause of action was discoverable within the statutory timeframe and if the court should exercise its discretion under section 27L to extend this period. Additionally, the court examined whether the plaintiff's claim was precluded by the Accident Compensation Act 1985 (Vic), considering the nature of the injury and the connection of the plaintiff's employment to Victoria. The court was required to determine if the plaintiff's injury qualified as a "compensable injury" under the Act, and if the plaintiff's employment was sufficiently linked to Victoria to trigger the operation of the Act.

The court meticulously analysed the statutory provisions and the facts of the case, finding that the plaintiff had indeed been misled by incorrect legal advice regarding the viability of a public liability claim. This advice significantly impacted the plaintiff's ability to initiate timely legal proceedings. The court acknowledged the plaintiff's genuine belief that he was not entitled to pursue a claim against the defendant due to the erroneous advice. Consequently, the court exercised its discretion under section 27L of the Limitation of Actions Act 1958 (Vic) to extend the limitation period. In relation to the Accident Compensation Act 1985 (Vic), the court concluded that the plaintiff's injury did not constitute a "compensable injury" because his employment was not connected to Victoria, thereby not triggering the provisions of the Act.

The final orders of the court allowed the plaintiff's action to proceed, despite the expiration of the limitation period, and dismissed the defendant's contention that the claim was barred under the Accident Compensation Act 1985 (Vic). The court's decision underscored the importance of equitable considerations in the application of statutory limitations and the potential consequences of incorrect legal advice.

Orders