Dollisson v Australian Rail Track Corporation Limited - [2019] NSWSC 870

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 Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Grech v Orica Australia Pty Ltd (2006) 14 VR 602
Holt v Wynter [2000] NSWCA 143
Martin v Bailey (2009) 26 VR 270
New South Wales v Gillett [2012] NSWCA 83
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Spandideas v Vellar [2008] VSC 198
Tsiadis v Patterson [2001] VSCA 138
Vellar v Spandideas [2008] VSCA 139
Category: Procedural and other rulings
Parties: Ryan Dollisson (Plaintiff)
Australian Rail Track Corporation Limited (First Defendant)
P & C Excavations Pty Ltd (Second Defendant)
ZERO 05 Pty Limited t/as CR Rail (Third Defendant)
Representation:
Counsel:
I Roberts SC with P Menary and A Jzensztat (Plaintiff)
J Mitchell (First Defendant)
SJ Walsh (Second Defendant)
N Hogan (Third defendant)
Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Wallmans Lawyers (First Defendant)
Thompson Cooper Lawyers (Second Defendant)
TurksLegal (Third Defendant)

File Number(s): 2017/226236
Publication restriction: Nil

Procedural history
The evidence of the plaintiff's lawyers
Counsel’s advice – 1 April 2014
The plaintiff’s evidence
New counsel

Limitation of Actions Act
(1) Discoverability
The law
Spandideas
Baker-Morrison
Bostik
Gillett
The plaintiff's submissions on s 27(1)(b)
The defendants’ submissions
Conclusion

(2) The extension of time application
Delai
Tsiadis
Section 27L(1)
(a) The length and reasons for the delay on the part of the plaintiff – s 27L(1)(a)
Discussion
(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendants – s 27L(1)(b)
Discussion
(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action – s 27(1 )(c)
(d) The duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability – s 27(1 )(d)
(e) The time within which the cause of action was discoverable – s 27(1 )(e)
(f) The extent to which the plaintiff acted promptly and reasonably – s 27L(1)(f)
(g) Steps taken by the plaintiff to obtain medical, legal or other expert advice – s 27L(1)(g)
Section 27L(2)
(a) Whether the passage of time has prejudiced a fair trial of the claim – s 27L(2)(a)
The defendants’ submissions
Conclusion
(b) Nature and extent of the plaintiff’s loss – s 27L(2)(b)
(c) The nature of the defendants’ conduct – s 27L(2)(c)
Conclusion

(3) Whether the plaintiff's claim against the first defendant is futile
The relevant provisions of the Accident Compensation Act
Two medical assessments
The plaintiff’s submissions
Banwon Spinners
Grech
Georgopoulos
The plaintiff’s submissions on statutory construction
Martin
Conclusion
Statutory construction

The Court orders that:

Judgment

HER HONOUR: There are two notices of motion before the Court.
The plaintiff is Ryan Dollisson. The first defendant is Australian Rail Track Corporation Limited (“ARTC”). It is the owner of the rail line, and the work being undertaken was for its benefit. The second defendant is P&C Excavations Pty Ltd. It is a contractor operating an excavator on the rail line. The third defendant is ZERO 05 Pty Limited trading as CR Rail. It is the plaintiff’s employer. The plaintiff relied upon his affidavit dated 4 July 2018, the affidavit of Trang Van Heugten and the affidavit of Monica Liesch dated 6 July 2018. The first defendant relied upon two affidavits of Jenny Paglia dated 4 and 14 December 2018
By notice of motion filed 6 July 2018, the plaintiff seeks as against each of the first and second defendants:

a declaration that the plaintiff’s action against the first defendant and second defendant was not brought after the expiration of three years from the date on which his cause of action against the first defendant was discoverable by the plaintiff within the meaning of s 27D of the Limitation of Actions Act 1958 (Vic); or

in the alternative, an order pursuant to the provisions of ss 27A and 27N of the Limitation of Actions Act that the period of limitation applicable to the plaintiff’s cause of action against the first defendant and second defendant under Division 2 of the Limitation of Actions Act be extended, nunc pro tunc, to 26 July 2017.

The first and second defendants oppose the orders sought. The third defendant consents to the orders sought (T 41.3).
By notice of motion filed 18 December 2018, the first defendant seeks first an order that leave be granted to the first defendant to amended its defence to the amended statement of claim filed 7 June 2018; and secondly, that leave be granted to the first defendant, pursuant to r 17.2(2) of the Uniform Civil Procedure Rules 2005 (NSW), to withdraw the admission in paragraph [1] of the defence filed 7 June 2018 to the extent that it constitutes an admission that the injuries to the plaintiff constituted “serious injury”.
The first defendant seeks to amend its defence by:

(1) denying that the plaintiff suffered “serious injury” as defined in the Accident Compensation Act 1985 (Vic);

(2) asserting that the plaintiff did not suffer “serious injury” as defined in the Accident Compensation Act and for that reason he has no entitlement to damages against the first defendant; and

(3) asserting that the plaintiff may not bring the current proceedings because he has made no application under s 134AB(4) of the Accident Compensation Act, and that a determination of the degree of the impairment of the plaintiff has not been made under s 104B.

The second defendant neither consents to nor opposes these orders (T 4.24). The third defendant adopts the same position as the plaintiff (T 4.1-3). The plaintiff consented to the amendment of the defence in accordance with para [1] and opposes the amendments set out in paras [2] and [3]. Hence, I allow the amendment set out in para [1] to be made in the proposed amended defence. The plaintiff also does not oppose the first defendant’s withdrawal of the defence. I also make that order.
It is not in dispute that as the accident occurred in Victoria, the law that applies to the plaintiff's claims is Victorian law, unless modified by statute. It is also not in dispute that the plaintiff has an arguable case on liability.
There are three main issues to be determined. The first two involve provisions of the Limitation of Actions Act, first concerning discoverability and second concerning extension of time. The third issue is whether the plaintiff's claim is futile due to the provisions of the Accident Compensation Act. I shall deal with these issues in order.

Procedural history

The plaintiff has been awarded compensation under the Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW) with respect to injuries he suffered on 18 December 2012, when he was 27 years of age.
He says that on that day, he was working at a worksite near Barnawartha, Victoria, which formed part of the Chiltern/Barnawartha railway line. He was performing that work as an employee of the third defendant. The worksite was occupied and under the overall care, control and management of the first defendant. The plaintiff was struck and run over by an excavator driven on a section of the railway track on the worksite by Mark Freeman, an employee of the second defendant. The plaintiff suffered serious injuries, which included but were not limited to a traumatic amputation of his right foot. The plaintiff has been unable to work since suffering those injuries.
On 25 July 2017, the plaintiff filed a statement of claim seeking damages from the first defendant and second defendant for the injuries he suffered on 18 December 2012 while performing his duties for the third defendant, his employer.
On 6 December 2017, the first defendant filed a notice of motion seeking orders pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1989 NSW transferring these proceedings to the Supreme Court of Victoria. The plaintiff and the second defendant opposed the making of those orders.
On 23 April 2018, the plaintiff filed an amended statement of claim in this Court joining the third defendant to the proceedings.
On the same day, 23 April 2018, the first defendant’s cross-vesting application was heard and determined. Fagan J dismissed the application.
On 1 May 2018, the second defendant filed its defence to the amended statement of claim and on 7 June 2018, the first defendant filed its defence to the amended statement of claim.
In their defences, each of the first and second defendant pleaded that the plaintiff’s claim against each of them is statute barred by reason of the provisions of s 27D of the Limitation of Actions Act.
The third defendant has not raised any limitation defence in relation to the plaintiff’s claim.

The evidence of the plaintiff's lawyers

The evidence of Ms Van Heugten and Ms Liesch sets out in chronological order the steps taken by the plaintiffs lawyers to provide him with advice as to his rights, and to pursue such claim or claims as he may have had resulting from his injuries. Ms Liesch’s affidavit sets out the various steps taken by Maurice Blackburn Lawyers from the time the plaintiff first consulted them in January 2013 through to 25 February 2014 (Aff Monica Liesch, [6]-[12]). It is not necessary to repeat that chronology here.

Counsel’s advice – 1 April 2014

Ms Van Heugten’s affidavit sets out the steps she took in relation to the retention of counsel to advise the plaintiff as to his rights (Aff Van Heughten, [5]-[14]). Ms Van Heugten sets out what occurred at the conference between the plaintiff, counsel and herself on 1 April 2014. The plaintiff was advised that his workers compensation entitlements were probably governed by New South Wales law. Mr Loftus advised the plaintiff that any claim under the transport accident legislation was, at best, problematic because the excavator which had run over the plaintiff and caused his injuries was not a motor vehicle within the meaning of the transport accident legislation. Mr Loftus advised the plaintiff that as he was probably covered under the New South Wales workers compensation legislation and was required to go through the NSW Workers Compensation Scheme. He would not be able to proceed with a public liability claim until he went through that scheme (Aff Van Heughten, [15]-[18]).
Subsequently, at the plaintiff’s urging, Ms Van Heugten sought further advice from Mr Loftus (Aff Monica Liesch, [16], Annexure 4). Mr Loftus advised that the plaintiff was prevented from bringing proceedings both under the Accidents Compensation Act and/or under the Wrongs Act 1958 (Vic) or public liability (Aff Monica Liesch, [18], Annexures 6-7; Aff Jenny Paglia, Annexure C22).
Ms Van Heugten advised relayed Mr Loftus’ advice to the plaintiff (Aff Van Heughten, [24]) who then transferred his file to the Parramatta office of Maurice Blackburn Lawyers to pursue his workers compensation entitlements.
Ms Liesch details in chronological order the steps taken by the Maurice Blackburn Lawyers Parramatta office after the file was transferred to it up until the date of filing of the statement of claim (Aff Monica Liesch, [20]-[46]).

The plaintiff’s evidence

For the purposes of these applications, I have taken the plaintiff's evidence at its highest.
Immediately after the accident described earlier in this judgment, the plaintiff was taken by ambulance to Albury Hospital and then to Alfred Hospital in Melbourne, where he remained an inpatient until 23 January 2013. He was then transferred for rehabilitation to Epworth Richmond, a private hospital, where he remained a patient until 7 March 2013. Shortly after, he returned to his parents’ home at Port Macquarie (Aff Ryan Dollisson, [2]-[3]).
On 21 January 2013, the plaintiff’s father first sought legal advice on the plaintiff’s behalf by contacting the Melbourne office of Maurice Blackburn Lawyers.
The plaintiff’s father relevantly wrote:

“The worksite was under ARTC control who employed two contracting companies at the one site. ...
Ryan and his mate plus others on site at the time of the incident have confirmed that they did not hear of any reverse warning signals from the excavator and that the operator went out of sequence for the actual operation. Comcare seem to be the main investigators of this accident and have yet to interview Ryan.
We understand through second hand information that the excavator operator initially refused a drug test on site but later submitted one which we believe he failed and turned in a positive result.
We also understand through second hand information that the operator is currently in remand for allegedly committing other crimes since the accident.
We are seeking advice on what to do in terms of engaging legal representation and what is available for Ryan with respect to compensation.”

On 22 February 2013, the plaintiff and his parents conferred with Ms Tran (now Van Heugten) while in hospital. The plaintiff received advice from Ms Van Heugten regarding the possibility of claims against the Transport Accident Commission, or alternatively in public liability. He was told that the Parramatta office of Maurice Blackburn Lawyers would advise him regarding his workers compensation entitlements. The plaintiff knew from the time of that conference that there was a three year limitation period for commencing proceedings for damages. The advice received was confirmed in a letter the plaintiff received from Maurice Blackburn Lawyers dated 12 March 2013 (Aff Ryan Dollisson, [4]-[10], Annexure A).
From the outset, the plaintiff was of the opinion that his injury was caused by the fault of the driver of the excavator which ran over him, and because of the failure of the first defendant to have safe systems of work at the workplace (Aff Ryan Dollisson, [4]).
On 26 February 2013, the plaintiff’s solicitors wrote to the plaintiff (Aff Jenny Paglia, Annexure C4). Under the subheading “Background Information”, the letter recorded the plaintiff’s instructions as follows:

“[O]n 18 December 2012 you were working for CR Rail and had been working for them for three years. CR Rail was contracted by The Australian Rail Track Corporation (ARTC) to work on the ballast rehabilitation project along a section of the rail line running between Melbourne and Sydney ... Also working on the project were: ... Tutt Bryant, heavy equipment specialists, and their subcontractor, P & C Excavations Pty Ltd (trading as Rail Lines Australia) … You have advised the operators of various machines were: ... Bucket machine - Mark Freeman who worked for P&C Excavations.”

Under the “Work Practices” subheading of the letter, the plaintiff’s instructions were confirmed that, “It was a requirement that the machine operators sound their horn three times before commencing to reverse. The bucket machine did not have a reversing siren nor did Mark Freeman sound his horn prior to commencing to reverse. In fact, the cabin of this machine can turn 360 degrees so does not need to be operated in reverse in various situations”.
Under the subheading “Accident”, the plaintiff’s instructions recorded that he “had been overseeing Mark Freeman levelling the ballast in the ‘Work Zone’. [He] then started walking towards the two other machines and then, once [he was] well away from the ‘Work Zone’ ... [He] stepped up and [was] walking between the tracks towards the other two machines. For reasons that are not known, Mark Freeman…started reversing the bucket machine out of the ‘Work Zone’ and [ran the plaintiff] over from behind ...”
Under the subheading “Public Liability Claim”, the solicitor advised the plaintiff that “From the information I already have, it is clear that you will have little difficulty in establishing negligence”. However, on 1 April 2014, the plaintiff’s counsel advised the plaintiff that a public liability claim was not an option (my emphasis).
On 27 February 2013, Ms Van Heugten wrote to the plaintiff and advised (Aff Jenny Paglia, Annexure C5):

“If we ultimately determine that the best course of action for Ryan is a public liability claim, we will of course provide Ryan with further advice and will take the necessary steps to commence proceedings on his behalf.”

On 1 April 2014, the plaintiff attended a conference with a Melbourne barrister, Mr Simon Loftus, Ms Van Heugten and another lawyer from Maurice Blackburn Lawyers (Aff Jenny Paglia, Annexure C9). During the course of that conference, Mr Loftus discussed the possibility of a claim against the Transport Accident Commission and claims for workers compensation. The plaintiff was advised that as he “was covered under the workers compensation legislation, and as the injury happened at work, he had to go through WorkCover and therefore a public liability claim was not an option.”
The plaintiff was very disappointed with this advice, as is evidenced by the email he sent to Ms Van Heugten on 2 July 2014 (Aff Ryan Dollisson, [20], [21], [26], Annexure 3). It stated in part:

“Just wanted to write and see how things are travelling with my case. I'm quite aware that things are looking fairly crappy for me from the information given to me so far which is very frustrating considering what I've been through and none of it was my fault! It quite often upsets me to know that I am an X innocent victim of negligence either on ARTC part or of the company of which the operator who ran me over worked for, who was commonly known to be on drugs at the time of my accident and I feel that my duty of care was not in place for me in my workplace. Surely someone has to be held accountable for what has happened to me as it has changed my life permanently and definitely not in a good way. The reasons for me contracting you is to find out what I am actually eligible for and what is the next road we go down.”

In late July 2014, Ms Van Heugten advised the plaintiff that following further discussions with Mr Loftus, it had been confirmed that he could not bring a public liability claim, that any claim against the Transport Accident Commission would probably fail, and that he would have to rely on his rights under the New South Wales workers compensation legislation (my emphasis). It was explained to the plaintiff that his difficulties arose because of differences in legislation between the various states, and there was nothing that could be done about it (Aff Ryan Dollisson, [27]).
Thereafter, the Parramatta office of Maurice Blackburn Lawyers pursued the plaintiff’s workers compensation entitlements.
On 24 September 2015, Mr Mitas advised the plaintiff that the workers compensation insurer had offered to settle his claim for lump sum compensation of $85,250 in respect of 40% whole person impairment, and the plaintiff instructed him to accept that offer. On 21 October 2015, the plaintiff signed a Complying Agreement in respect of that claim.

New counsel

On 5 February 2016, the plaintiff had a telephone conference with Mr Mitas and Mr Paul Menary, barrister, to discuss a potential work injury damages claim. As a result of the advice the plaintiff received, he instructed Maurice Blackburn Lawyers to commence a work injury damages claim against CR Rail, the third defendant. At that time, the plaintiff believed that this damages claim was the only one he could make, as he had been told he could not make either a Transport Accident Commission or a public liability claim. On 11 October 2016, the plaintiff received an email from Ms Rema Hamdan, a paralegal in the employ of Maurice Blackburn Lawyers, enclosing a statement for the plaintiff to sign. He returned it the following day. On 19 October 2016, the plaintiff then received a letter from Mr Mitas confirming what work was to be undertaken in order to finalise his work injury damages claim, which by then he assumed was well underway.
On 29 May 2017, the plaintiff was advised by Mr Mitas that Mr Menary had recommended that he retain the services of senior counsel for the purpose of potentially bringing a claim against the first and second defendants. He immediately gave instructions to do so. The plaintiff says that was the first time that it became apparent to him that he may be able to pursue a public liability claim against the first and second defendants.
On 5 June 2017, Ms Danielle De Paoli, special counsel in the employ of Maurice Blackburn Lawyers, wrote to the plaintiff informing him that Ms Liesch, solicitor at Maurice Blackburn Lawyers, had taken over carriage of his matter following Mr Mitas’ resignation.
On 14 June 2017, Ms Liesch wrote to the plaintiff confirming that there were a number of matters outstanding, that they would be seeking reports from treating specialists, arranging an urgent conference with senior counsel, and arranging medico-legal assessments. The plaintiff was asked to provide an update concerning his care, treatment, and work capacity, which he did within several days.
On 26 June 2017, the plaintiff had a telephone conference with Mr Ian Roberts SC, Mr Menary and Ms Liesch to discuss the prospect of issuing proceedings for damages against the first and second defendants.
On 20 July 2017, the plaintiff had a telephone conference with Mr Menary, Ms De Paolf and Ms Liesch, in which they sought his instructions to urgently commence proceedings against the first and second defendants. He immediately provided those instructions.
On 24 July 2017, Ms Liesch provided the plaintiff with a copy of a statement of claim to be issued against the first and second defendants. She advised the plaintiff that his employer would be joined to the proceedings once the procedural steps had been completed in accordance with a work injury damages claim.
The plaintiff says that he has at all times wished to take proceedings against the first and second defendants in respect of the injuries he sustained. However, after being informed in April 2014 and again in approximately July 2014 that he could not sue either the first or second defendants, he instructed his solicitors to proceed with the only alternative, claiming only workers compensation and subsequently a work injury damages claim against the third defendant.
The plaintiff says that he has at all times promptly responded to any request made of him by his solicitors. He has always wanted the claims to be dealt with expeditiously, and has had no reason to procrastinate or delay.
On 26 June 2017, the plaintiff was advised by new counsel in Sydney that he could undertake proceedings for damages against the first and second defendants. He immediately gave instructions to commence proceedings against those defendants (Aff Ryan Dollisson, [35]).
On 15 July 2017, the plaintiff filed a statement of claim in this Court against the first and second defendants seeking damages for injuries suffered on 18 December 2012.

Limitation of Actions Act

The plaintiff applies for an extension under the Limitation of Actions Act, firstly on the basis of discoverability under s 27F, and secondly, by extension of the limitation period under ss 27K and 27L. I will deal with them in order.

(1) Discoverability

It is common ground that the plaintiff's claim against the first and second defendants is an action which arises under Part III of the Wrongs Act. Thus, the provisions of Part IIA, namely s 27B, of the Limitation of Actions Act apply. The first defendant adopts the second defendant's submissions on this topic of discoverability.
Sections 27D and 27F fall within Division 2 of Part IIA of the Limitation of Actions Act. The limitation period for personal injury actions is fixed by s 27D as being the period of three years from the date on which the cause of action is discoverable by the plaintiff.
Section 27F(1) provides:

“27F Date cause of action is discoverable
(1) For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts-
(a) the fact that the death or personal injury concerned has occurred;
(b) the fact that the death or personal injury was caused by the fault of the defendant;
(c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.”

The question for this Court to determine is what was the first date that the plaintiff knew, or ought to have known, all of the three matters set out in s 27F(1). If that date is found to be a date earlier than 26 July 2014, the date three years prior to the issue of the statement of claim, then, subject only to the applications for extension of time, the plaintiff’s claim is statute barred.
The plaintiff submitted that for the purposes of s 27F(1)(a) of the Limitation of Actions Act, he knew of the fact that a personal injury occurred on 23 January 2013. The plaintiff submitted that for the purposes of s 27(1)(b), he did not know of the fact that the personal injury was caused by the fault of the first and second defendant (T 17.20-45). In s 27F(1)(b), the main area of dispute is the meaning of the word “fault”. The plaintiff said that for the purposes of s 27F(1)(c), he also did not know the fact that the personal injury was sufficiently serious to justify an action as of 23 January 2013.
The plaintiff submitted the first date that he knew the fact that the injury was caused by the fault of the first and second defendants under s 27F(1)(b), and that the personal injury was sufficiently serious to justify the bringing of an action or the cause of action, was 26 June 2017, or arguably 29 May 2017. The defendants submitted that on the contrary, he had the knowledge under s 27F(1)(b) by 26 February 2013 and is therefore statute barred. According to the first and second defendants, the plaintiff knew long before 26 July 2014 that personal injury had occurred and that that personal injury was sufficiently serious to justify the bringing of an action.
The issues for determination for the purposes of s 27F(1)(b) is whether or not, on a date prior to 26 July 2014, the plaintiff knew that the personal injury was caused by the fault of the defendant. Pursuant to s 27F(2), a person “ought to know” of a fact at a particular date if that fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact. That the plaintiff ought to have known (i.e. had constructive knowledge) has not been put in issue in this application (T 19.36-45).
The thrust of the plaintiff’s argument is that he was given incorrect legal advice so that he did not know there was an actionable wrong. Therefore, time did not commence to run for the purposes of the limitation statute until he received the correct advice.

The law

The parties referred to a number of authorities, including Spandideas v Vellar [2008] VSC 198 (“Spandideas”) and on appeal Vellar v Spandideas [2008] VSCA 139; Baker-Morrison v New South Wales [2009] NSWCA 35 (“Baker-Morrison”); Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 (“Bostik”); and New South Wales v Gillett [2012] NSWCA 83 (“Gillett”). I shall briefly refer to them.

Spandideas

In Spandideas, Kaye J had to determine the meaning of the word “fault” in s 27F(l)(b). He held that “fault” connoted culpability or blameworthiness. His Honour stated at [32], [35]-[37] and [39]:

“[32] Having had the benefit of argument in this proceeding, I have come to the conclusion that the construction of ‘fault’ in s 27F(1)(b), contended for by the plaintiff, is correct. The meaning of ‘fault’ is plain and unambiguous, both in ordinary parlance, and in its context in Pt 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the ‘fault’ of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage. That meaning is consistent with the dictionary definitions of the word. Thus, the Macquarie Dictionary definition of ‘fault’ includes:
1. A defect or imperfection; a flaw; a failing.
2. An error or mistake.
3. A misdeed or transgression.
4. Delinquency; culpability; cause for blame.

…
[35] Contrary to the submission of Mr O’Meara, I do not consider that the construction of s 27F(1)(b), contended for by the plaintiff, would have an unworkable, or anomalous, effect which could not have been contemplated by Parliament. Such a construction would not render the determination of the applicable period of limitation as being dependent upon any idiosyncratic subjective notion of ‘fault’ by an individual plaintiff. As Mr O’Meara correctly observed in argument, the word ‘fault’ is a common concept. In everyday discourse, it is not unusual to attribute an accident, some damage, harm or injury, to the ‘fault’ of another. In its ordinary non-legal sense, the suggestion that an injury or accident has been caused by the ‘fault’ of another means that the injury or damage was caused by an act, which the other person should not have done, or should have done differently, or by an omission by that person to carry out an act, which should have been done. Certainly, that meaning involves certain normative concepts of what should or should not have been done. However, I do not consider that s 27F(1)(b) requires that the plaintiff form a legal judgment as to the ‘fault’ of a defendant in the tortious sense of the word. Rather, I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim, was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of ‘fault’; rather, what the sub-section fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.
[36] Such a construction of s 27F(1)(b) is consonant with s 27F(1)(c). That provision states that the cause of action is discoverable when the plaintiff knows (or ought to know) that the injury is ‘sufficiently serious to justify the bringing of an action on the cause of action’. On any view, under that provision the commencement of the period of limitation is dependent upon the formation of a value judgment by the plaintiff, namely, as to whether the injury was of such seriousness as to ‘justify’ the issue of proceedings. Thus, it is not alien to the scheme or structure of s 27F(1), that, under subpara (b), the commencement of the period of limitation should be dependent upon a normative assessment by the plaintiff as to whether an act or omission of a defendant involved culpability or blameworthiness on the part of the defendant.
[37] The construction of ‘fault’ contended for by the plaintiff would not leave the commencement of a period of limitation open-ended. Section 27D(1) provides that, at the latest, the period of limitation is to commence twelve years from the date of the act or omission alleged to have resulted in the death or personal injury complained of. The period is to be shorter if, during that time, the cause of action was ‘discoverable’, as defined in s 27F. In that way, Part 2A is designed to work differently to s 5(1A). Under the latter section, the period of limitation may be open-ended, dependent on the knowledge of the injured party of the cause of the injury. By contrast, under s 27D, some finality is provided by the ‘long-stop’ provision. As a ‘trade off’, it is understandable that s 27F would provide for a shorter period of time, only if the plaintiff knew all the relevant factors necessary for the formulation of a cause of action, and not just the fact of the injury and its cause. Whatever the juridical basis of a claim for damages for personal injury, ordinarily such a claim must involve some element of ‘fault’. It is understandable, in those circumstances, that the legislature would envisage that the cause of action should only be known, when a critical part of it is apparent to a plaintiff, namely an element of ‘fault’ on behalf of the defendant.
…
[39] Contrary to the submissions of Mr O'Meara, I do not consider that it is appropriate to import, into Pt 2A, the definition of ‘fault’ contained in ss 28B, 28LB, and 28M of the Wrongs Act. Although, in certain circumstances - when two sets of legislation are said to be ‘in pari materia’ - the meaning of a particular term in one statute may be used in interpreting another, such a technique of statutory construction must be used with caution. ln the three provisions of the Wrongs Act to which Mr O’Meara referred, ‘fault’ is defined to ‘includes’ an act or omission. When the relevant provisions of the Wrongs Act, in which ‘fault’ is used, are examined, it is understandable that the definitions, in Pts VB, VBA and VBC, should be inclusive. Part VB is concerned with awards of damages, which, ex hypothesis, are made upon an admission or judgment of fault. The inclusive definition of ‘fault’ in s 28B is designed to ensure that the restrictions relating to damages, in Pt VB, cover liabilities, not only arising from acts, but also from omissions. A similar point may be made about the definition of ‘fault’ in Pt VBA, which involves the setting of thresholds in respect of the recovery of damages for non-economic loss. Again, those thresholds presuppose a liability for the injury, which, under Pt VBA, is required to be ‘significant’ (as therein defined). Part VC is concerned with structured settlements. The definition of ‘fault’ in s 28M, as an inclusive definition, is designed to ensure that s 28N applies, not only to settlement of liabilities arising from acts, but also liabilities arising from omissions” (footnotes omitted).

His Honour’s decision was the subject of an application for leave to appeal to the Supreme Court of Victoria Court of Appeal in Vellar v Spandideas. The Court of Appeal dismissed the application for leave on the basis that Kaye J had expressed the view that, even if the proceedings had been commenced out of time, he would have granted an extension of time. No conclusion was reached as to the correctness of the construction adopted by his Honour in relation to the statutory provisions: see Vellar v Spandideas at [65].

Baker-Morrison

In Baker-Morrison, the New South Wales Court of Appeal distinguished the decision of Kaye J in Spandideas. The Court of Appeal in Baker-Morrison was concerned with the discoverability provisions contained in ss 50C and 50D of the Limitation Act 1969 (NSW), which are identical to ss 27D and 27F Limitation of Actions Act (Vic). Basten JA (with whom lpp and Macfarlane JJA agreed) determined that the concept of “fault” was to be ascertained by reference to legal concepts. His Honour continued at [25], [26] and [28]:

“[25] A cause of action is ‘discoverable’ for the purposes of s 50C if the relevant person has either actual knowledge or what is sometimes described as ‘constructive’ knowledge, being what he or she ‘ought to know’ of certain facts: s 50D(1), set out at [7] above. Both limbs require giving content to:
(i) the concept of knowledge, and
(ii) each of the identified ‘facts’.

[26] These aspects are interrelated, in the sense that if the facts are properly within the understanding and evaluation of a nonprofessional, the nature of the person’s knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise. It is therefore convenient to consider first the content of the prescribed facts. In the present case, no issue arose with respect to para (a)…
…
[28] In para (b), the word ‘fault’ is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as ‘discoverable’ for the purpose of s 50C is ‘the cause of action’. The ‘fact’ contemplated by para (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”

In his decision in Baker-Morrison at [37], Basten JA referred to the review of the Law of Negligence - Final Report (2002) (“the Negligence Report”) as follows:

“[37] Although the statutory test is expressed in terms of what a person ‘knows or ought to know’ of the identified facts, the objective element was clearly and expressly identified in the Negligence Report as the primary aspect of discoverability: at para 6.28. As will be noted below, s 50D(2) identifies when a person ought to know a fact on an assumption that the person had ‘taken all reasonable steps before that time to ascertain the fact’. Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice and information. That assumption, and the significance given to it in the Negligence Report, remove any curiosity which may otherwise inhere in the conclusion that the concept of ‘fault’ was to be ascertained by reference to legal concepts.”

His Honour continued at [39] and [41]:

“[39] The linguistic difference between s 60I(1) and s 50D(1) cannot be disregarded. The test in s 60I is broader in two respects, and therefore easier for a defendant to establish. First, the relationship between injury and act or omission is said in s 60I to be one of ‘connection’, whereas in s 50D it is one of causation. Secondly, the phrase ‘act or omission’ is replaced by ‘fault’. On the other hand, in a practical sense, the latter distinction may be more apparent than real. Once it is accepted that the act or omission of which the person is to be aware under s 60I is the existence of an alternative system or precaution, apparently being one reasonably available, the point of distinction is diminished. As explained in Drayton, there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt: it is consistent neither with the context of s 50D, which deals with fault in relation to a cause of action, nor with the underlying approach in Dedousis and Drayton.
…
[41] Although a legal evaluative judgment appears to be required by para (b), that element is even more explicit in para (c). Thus the injury must not only be understood to be serious, but ‘sufficiently serious to justify’ a course of action. Further, that course is ‘the bringing of an action on the cause of action’, an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being ‘of a decisive character’ for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one ‘knowing those facts and having taken the appropriate advice on those facts’ would hold the identified opinion.”

Bostik

In Bostik, the appellant argued that what was sufficient for the purposes of s 50D(1)(b) Limitation Act (NSW) was a person knows the facts necessary to establish the fault of the defendant, and not that the defendant was, as a matter of law, liable to pay damages. Beazley JA (with whom Ipp and Basten JJA agreed) repeated the reasoning of Basten JA in Baker-Morrison at [39] in determining that it is not sufficient for the purposes of s 50D(1)(b) that a person merely knows the facts necessary to establish the fault of the defendant. The person must also know that the defendant is, as a matter of law, liable to pay damages.

Gillett

The respondent in Gillett was a senior member of the New South Wales Police Service. Mr Gillett’s negligence claim was based on the single allegation of the failure of the Police Service to disclose to the Director of Public Prosecutions (the “DPP”) all relevant information and documents obtained during an investigation of the Police Services conduct, which preceded his being charged with a number of criminal offences. The alleged breach of statutory duty involved the Police Service failing to discharge its obligations under the Director of Public Prosecutions Act 1986 (NSW), s 15A, to disclose to the DPP all relevant information and documents obtained in the investigation that might assist the case of the prosecution or the defence. The obligation was a continuing one until the prosecution was terminated or the person was either convicted or acquitted. Mr Gillett’s complaint was that the Police Service failed to disclose documents that assisted his case.
In Gillett, the appellant challenged the correctness of the decision in Baker-Morrison and submitted that the word “fault” should be given its ordinary meaning in accordance with the principle of the statute. In other words, this Court should apply the same meaning of the word “fault” that had been applied by Kaye J in Spandideas, by which it was not necessary for the plaintiff to demonstrate moral blameworthiness. A court of five judges was convened to hear the matter.
The Court of Appeal in Gillett found that the construction given to “fault” in Baker-Morrison was correct. As in Bostik, Beazley P, with whom all other judges of the Court agreed, endorsed the reasoning of Basten JA in Baker-Morrison at [39] that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. Beazley P stated at [94]-[97]:

“[94] In my opinion, Basten JA was correct when he stated, at [39] 464, that a cause of action was discoverable when a plaintiff knew or ought to have known the key factors necessary to give rise to liability. As his Honour pointed out, s 50D(1)(b) involves a relationship of causation between “fault” and injury. Section 60I involves a connection between an act or omission and injury. The respondent's submission, noting the requirement in s 50D(1)(b) that the fault be that of the defendant, who may not be the actual wrongdoer, supports this construction.
[95] There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case. A defendant only liable pursuant to statute, such as the Nominal Defendant, is another. The State, liable under the Crown Proceedings Act 1988, as is the case here, is another example. Yet another is a case of malicious prosecution, where the identity of the prosecutor is pivotal to the determination of the elements of malice and reasonable and probable cause: see A v The State of New SouthWales [2007] HCA 10; 230 CLR 500. The factual circumstances in Bostik provide a further example where a plaintiff may not know who the employer is and therefore whether injury was the fault of a particular defendant. This is not so unusual. Many cases come before the courts where a plaintiff is unaware of the identity of the actual employer.
[96] It is useful at this point to return to the statement of Basten JA in Baker-Morrison, at [40], where his Honour referred to the failure of the State to demonstrate:
‘…that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe.’

[97] A question arose during the course of the argument whether, in making this observation, his Honour's construction of ‘fault’ referred to the facts that demonstrate that there had been a breach of the relevant legal standard. In this regard, the ‘relevant legal standard’ may vary, depending on whether the claim was brought in negligence, breach of contract or breach of statutory duty. The respondent submitted that this formulation reflected the construction he was propounding, namely that, for the purposes of ‘fault’ in s 50D(1)(b), a defendant had to establish that the plaintiff knew the matter was legally actionable. What that involved in a particular case would depend upon the relevant facts and circumstances. I agree with Senior Counsel’s response.”

The plaintiff's submissions on s 27(1)(b)

The plaintiff argued that relevant facts and circumstances in the present case are as follows.
At the time of his injury, the plaintiff was a resident of Queensland. His injury arose out of and in the course of his employment with the third defendant, CR Rail. The parties entered into their employment contract in New South Wales, and the third defendant was a company both incorporated and carrying out most of its business in New South Wales.
The plaintiff’s employment was connected with New South Wales within the meaning of s 9AA Workers Compensation Act 1987 (NSW).
The plaintiff’s injury occurred in Victoria.
The plaintiff’s injury was caused by the acts or omissions of the first defendant, a Commonwealth statutory body, whose headquarters in relation to its management of the worksite are in South Australia.
The plaintiff’s injury was also caused by the acts and omissions of an employee of the second defendant, a company incorporated in Victoria, in relation to the operation of a piece of mobile equipment.
The plaintiff’s injuries were also caused by the acts and omissions of the third defendant, his employer CR Rail, in relation to its duty to provide him with a safe place of work and a safe system of work.
The plaintiff submitted that the availability of a cause of action was therefore at least potentially dependent upon on the following law: Victorian law regarding the liability of occupiers and non-employer tortfeasors; Victorian law regarding the liability of a New South Wales employer tortfeasor in respect of injuries sustained by a non-Victorian employee in an accident in Victoria; New South Wales law regarding the liability of an employer tortfeasor in respect of injuries sustained by an employee in Victoria; Victorian law regarding the liability arising from the negligent use and operation of mobile equipment; and Victorian law regarding vicarious liability.
The plaintiff argued that while he may have believed, in a generic sense, that his injury was occasioned by the fault of each of the defendants, he did not and could not know the “key factors” necessary to establish legal liability with respect to each of the defendants. Further, without legal advice, he would not have known the effect of the various statutory requirements which affected his rights, nor know that the matter was legally actionable.
The plaintiff argued that he clearly took all reasonable steps he could have taken to ascertain those “key factors”. Very soon after his injury, while still hospitalised, he took steps to instruct solicitors to provide him with advice as to his rights. To his knowledge, the solicitors he consulted then set about carrying out certain investigations, and eventually advised him on 1 April 2014 that although he may have certain rights under New South Wales law against CR Rail through WorkCover, claiming under Victorian law against the other parties who were potentially at fault was not an option open to him. The fact that this advice was incorrect does not in any way detract from the submission that the plaintiff took all reasonable steps which he could take to ascertain if he had a cause of action against either the first and/or second defendant.
The plaintiff argued that the first date that he knew, or ought to have known, that his injury was caused by the fault of the first and second defendants within the meaning of s 27F(1)(b) was 26 June 2017 or, arguably, 29 May 2017. Whichever day is correct, the statement of claim was issued only a matter of weeks after that date, well within the three years mandated by s 27D(1)(a).
Senior counsel for the plaintiff stated that he cannot find any cases where a Victorian Court has decided whether or not Gillett should be followed. Nor can he find a case that says Spandideas is not authority. Gillett was a case decided by five judges of an intermediate appellate court. What the High Court stated in Farah Construction v Say-Dee [2007] 230 CLR 89; (2007) 236 ALR 209 is probably confined to cases of uniform or Commonwealth legislation. The legislation is this case is precisely the same. Senior counsel acknowledged that if Spandideas is to be applied to the plaintiff’s case, then he could not argue that the action was not discoverable three years before, because all that would be required is that the plaintiff’s injury was caused by an act or omission by another person which should not have been done. However, senior counsel for the plaintiff argued that a far tighter notion of fault should be applied (T 201-20).

The defendants’ submissions

The first defendant has adopted the second defendant’s submissions in relation to the discoverability provisions.
The defendants argued that interpretations of “fault” are not license to sue freely without limitation or without risk of restriction (T 27.43-45). Fault looks at the intersection of two things. The first is what is meant by the word “knowledge”, and the second is what is meant by the injury having been caused by the fault of the defendant. The word “fault” does not mean the same thing as “legally actionable”: see Baker-Morrison at [39].
The defendants sought to distinguish Gillett on the basis that the facts in that case were relevantly different. Mr Gillett did not know he could sue the police officer for not providing the Crown or the DPP with all of the material that would have assisted his case, because Mr Gillett did not know what material the police had given to the prosecutor. It was only when he was made aware of that material that he knew he had an action for negligence against the State. The defendants argued that these facts are the key to understanding the context of the words “legally actionable”.
However, the defendant argued that the situation in this case is different. The plaintiff knew he had been run over by the excavator. He also immediately knew that Mark Freeman was at fault, and that Mr Freeman was employed by the second defendant. Counsel for the second defendant submitted that all the things the plaintiff had to know are all of the key factors in Basten JA’s formulation, which was approved in Gillett. The plaintiff says that because he was given negligent advice, he did not know he could bring a claim against the second defendant. However, counsel for the second defendant submitted that the Court cannot take phrases such as “legally actionable”, which are particular to the facts of Gillett, and plug them into the legislation to say that “fault” simply means “legally actionable”. As Basten JA said in Baker-Morrison, the cause of action in each specific case is fact dependent. The Court must consider the facts.
The action against the second defendant is framed on the basis that Mr Freeman ran over the plaintiff because Mr Freeman did not look where he was going, did not check that someone was there and did not sound his warning horn as required. All of those elements were known to the plaintiff, but he says that he did not sue because of the bad advice he received from Mr Loftus. The plaintiff also says in his affidavit at [4] that his opinion by January 2013 was that his injury was caused by the fault of Mr Freeman.
In his letter dated 21 January 2013, the plaintiff’s father stated that the worksite was under the control of ARTC, which employed two contracting companies at the one site. He understood from second-hand information that the excavator operator initially refused a drug test, but later submitted to one which he failed. He also understood through second-hand information that Mr Freeman was currently in remand. They were seeking advice on what to do in terms of legal representation and what was available to the plaintiff with respect to compensation. This was what started the process with Maurice Blackburn Lawyers.
In Ms Van Heugten’s letter dated 26 February 2013, she sets out what the plaintiff told her when she saw him in February 2013. She confirmed that the plaintiff was working for the third defendant. The third defendant was contracted by the first defendant, and the second defendant was also working there. Counsel for the second defendant says that the plaintiff’s case is not like Bostik or other cases where the plaintiff did not know the identity of the company. This plaintiff did. There was also evidence about various operators of the machines. Mr John Campbell, who operated the undercutting machine, worked for the second defendant, as did Mr Freeman who operated the bucket machine. The plaintiff had already told his solicitor that Mr Freeman failed to sound his warning horn, which the defendants submitted is a “pretty good” basis for bringing a claim in negligence.
Counsel for the second defendant drew the Court's attention to the above letter under the heading “Accident”, where it stated that for reasons that are not known, Mark Freeman had started reversing the bucket machine out of the work zone. The plaintiff knew of these things (T 29-32).
In relation to s 27(1)(b) of the Limitation of Actions Act, it is necessary to explore the plaintiff’s state of knowledge at different points in time in relation to fault of the second defendants.
In contrast to the plaintiff's mother in Baker-Morrison, the plaintiff in these proceedings, on his own evidence, knew the key factors to establish legal liability at an early stage. Paragraph [4] of the plaintiff’s 4 July 2018 affidavit records that in January 2013, he “was of the opinion that [his] injury was caused because of the fault of the driver of the excavator [the second defendant's employee], which ran [him over] and because of the failure of the first defendant to have safe systems in a working place at the worksite”.
By 26 February 2013, the plaintiff knew that his injury was caused by the fault of the second defendant. He knew the “key factors necessary to establish legal liability”, including the name of the second defendant, the name of its excavator operator, that operator's relationship of employment with the second defendant and the fact that his operation of the excavator was the proximate or physical cause of his traumatic foot amputation and other injuries.
The plaintiff also knew the key factors necessary to establish negligence against the second defendant, including causation, because the excavator driver “ran over” the plaintiff, failed to sound his horn before reversing, moved out of the “Work Zone” without explanation and failed to pivot the excavator such that he would be facing the direction of travel.
In relation to s 27(1)(c) of the Limitation of Actions Act, the defendants submitted that it is self-evident on the facts of this case that the plaintiff's injuries were sufficiently serious to justify bringing an action.
The plaintiff deposes that he and his father discussed seeking legal advice at a very early stage after the accident. The letter, dated 26 February 2013, recorded the plaintiff’s instructions that, “As a result of the accident you suffered severe injuries including severing of part of your right foot, degloving injury to the right buttock and groin, severe laceration to the right buttock and upper thigh as well as significant gravel rash injuries”. In the same letter, the solicitors then provided advice in respect of pursuing a public liability claim. The advice that the plaintiff had been given at that time by the solicitors was very positive in terms of pursuing a claim for the injuries. Hence, the plaintiff knew the information in subparagraph (c) by 26 February 2013 at the latest.
Under the legislation, it does not matter that the plaintiff was subsequently given incorrect advice which caused him to delay providing instructions to his solicitors to commence proceedings. It follows that the proceedings were commenced after the expiry of the limitation period.

Conclusion

This application for an extension of time to commence proceedings is pursuant to s 27F of the Limitation of Actions Act. The law that applies is Victorian law, unless it is modified by the statute, which is not the case here.
As such, I am bound by the Victorian Supreme Court authority of Spandideas. I acknowledge that this decision was appealed to the Victorian Court of Appeal. The Victorian Court of Appeal dismissed the application for leave on the basis that Kaye J had expressed the view that even if the proceedings had been commenced out of time, he would have granted an extension of time. No conclusion was reached as to the correctness of the construction adopted by his Honour in relation to the statutory provisions.
The definition of “fault” determined in Spandideas does not require that the plaintiff form a judgment that the defendant is legally “at fault” in the tortious sense of the word. Rather, what fault relates to is the plaintiff’s knowledge that the injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.

By 26 February 2013, the plaintiff knew that his injury was caused by the fault of the second defendant. He knew the “key factors necessary to establish legal liability”, including the name of the second defendant, the name of its excavator operator, that operator's relationship of employment with the second defendant and the fact that the excavator operator's operation of the excavator was the proximate or physical cause of his traumatic foot amputation and other injuries.
As previously stated, the plaintiff and his father discussed seeking legal advice the very early stage after the accident. The letter dated 26 February 2013 recorded the plaintiff’s instructions reproduced earlier, that “[a]s a result of the accident [he] suffered severe injuries including severing of part of [his] right foot, degloving injury to the right buttock and groin, severe laceration to the right buttock and upper thigh as well as significant gravel rash injuries”. In the same letter, the solicitors then provided advice in respect of pursuing a public liability claim. The advice that the plaintiff had been given at that time by the solicitors was very positive in terms of pursuing a claim with regard to his injuries.
It is my view that the plaintiff knew that the personal injury had occurred, that the injury was caused by the fault of the second defendant and that the injury was sufficiently serious to justify the bringing of an action on the cause of action. That being so, the cause of action was discoverable on 26 February 2013. The plaintiff had until 26 February 2016 to commence proceedings after that date of discoverability. On 25 July 2017, the plaintiff filed his statement of claim, which is later than the applicable time period. Hence, the cause of action against the second defendant is statute barred.
Similarly, the plaintiff knew that the worksite was under the control of ARTC as at 26 February 2013. It is my view that the plaintiff knew the fact that his personal injury had occurred, that it was caused by the fault of the second defendant and that it was sufficiently serious to justify the bringing of an action on the cause of action. That being so, the cause of action was discoverable on 26 February 2013. The plaintiff had until 26 February 2016 to commence proceedings. The plaintiff did not commence proceedings until 25 July 2017, outside of the applicable time period. This cause of action is also statute barred.
If I am wrong and the New South Wales Court of Appeal decision of Gillett is the applicable law, then it is my view that pursuant to s 27F(1)(b), the plaintiff did not know the fact that the personal injury was caused by the fault of both the first and second defendants until 26 June 2016 (my emphasis). This is when the plaintiff received the advice of new counsel that he could take legal proceedings against the first and second defendants. On that day he knew, for the purposes of fault, that his proceedings were legally actionable against the first and second defendants.
On 26 February 2013, the plaintiff knew that an injury had occurred for the purposes of s 27F(1)(a) of the Limitation of Actions Act, and that it was sufficiently serious to justify bringing an action on the cause of action for the purposes of s 27F(1)(c). On 26 June 2017, he knew the last of the three threshold matters, namely, the fact that the personal injury was caused by the fault of both the first and second defendants. If Gillett is applicable law, then the plaintiff brought his action within the three year period and an extension of time to commence proceedings should be granted.

(2) The extension of time application

Pursuant to s 27M of the Limitation of Actions Act, the power to extend time may be exercised at any time, even though the period of limitation has already expired or an action has been commenced. The power to extend time pursuant to s 27K is a discretionary one. Once again, the first defendant adopts the second defendant’s submissions in relation to s 27L(1) (T 2). Sections 27K, 27L and 27M fall within Division 3 of Part IIA of the Limitation of Actions Act.
The provisions of s 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW) are enlivened. Section 6 reads:

“If a court of the State exercises a discretion conferred under a limitation law of a place, being another State, a Territory or New Zealand, that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place.”

Pursuant to s 27K of the Limitation of Actions Act, a person may apply to a court for an extension of the period of limitation fixed under Division 2 and, subject to s 27L, a court may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
Section 27L(1) requires the court, when exercising the powers conferred on it by s 27K, to have regard to all the circumstances of the case including, but not limited to, those referred to in the seven sub-clauses set out therein. Section 27L(2) adds three further circumstances in addition to those specifically referred to in s 27L(1) which are to be considered by the court.
Not all the circumstances set out in s 27L(1) are applicable to the plaintiff’s claims.
Sections 27L(1) and (2) read:

“27L Matters to be considered in determining applications for extension of limitation period
(1) In exercising the powers conferred on it by section 27K, a court shall
have regard to all the circumstances of the case, including (but not
limited to) the following-
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2) To avoid doubt, the circumstances referred to in subsection (1) include
the following-
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiffs loss; and
(c) the nature of the defendant's conduct.”

In relation to s 27L, the parties referred to Delai v Western District Health Service [2009] VSC 151 (“Delai”) and Tsiadis v Patterson [2001] VSCA 138 (“Tsiadis”).

Delai

In Delai at [22], Beach J stated that there is some controversy as to whether the relevant delay to be considered for the purposes of s 27L of the Limitation of Actions Act is the delay between the accrual of the cause of action and the making of the application for an extension of time, or the delay between the action becoming discoverable and the making of the application for an extension of time. In the present case, the difference is immaterial.
In Delai at [23], Beach J stated that the prejudice referred to in s 27L(1) need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay. The court is required to have regard not only to the established prejudice, but also to consider the extent to which there is likely to be prejudice. Delay itself, if inordinate, may be taken as evidence of prejudice.
Furthermore, Beach J held at [42] that while the duration of any disability or incapacity was of no great moment in that case, as they are not in this case, the nature and extent of the plaintiff’s loss under s 27(2)(b) was considerably important.
Beach J stated at [36]:

“[36] What if she did know everything, what more could she have done? She went to see solicitors, she followed their advice, she did everything that was required of her. There is not a suggestion made that she was in any way culpable or in any way responsible for extending any delay.”

Tsiadis

The case of Tsiadis was heard by the Victorian Court of Appeal (Comiston, Callaway and Buchanan JJA). Although Tsiadis concerned s 23A of the Limitation of Actions Act, the provisions of s 23A are materially similar to the provisions of ss 27K and 27L.
In its decision at [30], the Victorian Court of Appeal cited with apparent approval the decision in Holt v Wynter [2000] NSWCA 143, to the effect that the High Court’s decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 (“Taylor”) was that “an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant”.
Buchanan JA stated in Tsiadis at [44]:

“The matters which the Court is required by s 23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather the Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”

The Victorian Court of Appeal also held that the requirement that the court have regard to all the circumstances of the case should include the possibility that the plaintiff might recover damages from a solicitor who is responsible for the delay in instituting proceedings. The fact that the plaintiff might recover for such negligent advice should therefore be considered a factor relevant to the exercise of the Court’s discretion. However, the question of what weight is to be given to that fact depends on the circumstances: see Tsaidis at [27]; Delai at [34]; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 per Forrest J.
A plaintiff cannot be found to be in default of his obligations to act promptly and reasonably under s 27L(f) if he consulted lawyers, followed their advice, and did everything that was required of him by them: see Delai at [43].
I will now address the matters set out in s 27L.

Section 27L(1)

(a) The length and reasons for the delay on the part of the plaintiff – s 27L(1)(a)

In the period between the day the plaintiff was injured, 18 December 2012, and July 2014, the plaintiff’s solicitors were pursuing enquiries as to the possibility of bringing proceedings against the first and second defendant. At the same time, he was pursuing his rehabilitation, and attending to matters raised by the third defendant's workers compensation insurer. No delay occurred in his or his solicitors' attention to those matters.
After being advised by his legal representatives in July 2014 he could not pursue claims for damages against the first and second defendants, but had to rely on his workers compensation rights, the plaintiff did what he was advised to do in relation to those workers compensation rights. That included attending various medical examinations to determine his whole person impairment pursuant to the provisions of the New South Wales Workers Compensation legislation. In the period between October 2014 and April 2015, steps were being taken to have the plaintiff medically examined, both by his own lawyers and by the third defendant’s workers compensation insurer. While the arrangements could hardly be described as expeditious, the plaintiff did all that was asked of him by his solicitors and by the third defendant’s workers compensation insurer. Ultimately in October 2015, agreement was reached to settle the plaintiff's claim for permanent impairment compensation against his employer in respect of 40% whole person impairment. The agreement reached between the plaintiff and the third defendant's insurer opened the way for the plaintiff to prosecute a work injury damages claim under the Workers Compensation Act against the third defendant.
Between October 2015 and November 2016, a significant and, to an extent, unexplained delay occurred in the handling of the plaintiff’s matter by his solicitors. It appears nothing was done between 21 October 2015 and 12 January 2016, when counsel was retained to advise in respect of the plaintiff's work injury damages claim against the third defendant. Following a telephone conference between counsel, the plaintiff’s then solicitor and the plaintiff, counsel provided an advice. Counsel also drafted the relevant notices under the workers compensation legislation required to be served prior to the commencement of a work injury damage claim.
There was then a delay between February 2016 and October 2016, which the plaintiff's present solicitor is unable to explain. The solicitor who during that period had the carriage of the plaintiff’s claim is no longer employed by Maurice Blackburn Lawyers. However, it is to be noted that the plaintiff, in February 2016, had instructed Maurice Blackburn Lawyers to commence a work injury damages claim against the third defendant. The plaintiff’s knowledge at that time was that such a work injury damages claim was the only damages claim that he could pursue. The plaintiff was entitled to rely on his solicitors to deal with the matter in a timely manner: see Delai at [43].
Between November 2016 and April 2017, the plaintiff's then solicitor was obtaining material to answer a request for particulars made by the solicitor for the third defendant in relation to the work injury damages claim.
Since April 2017, the plaintiff’s lawyers have pursued his claims against all three defendants as expeditiously as possible. The delay between the issuing of the statement of claim on 25 July 2017 and the making of this application on 6 July 2018 arose due to the first defendant's unsuccessful application under the Jurisdiction of Courts (Cross-Vesting) Act. Until that application, neither the first nor second defendants filed a defence, and it was only after they filed those defences in May and June 2018 that this application became necessary.
Notwithstanding the delays of his solicitor, the plaintiff has at all times responded promptly to any questions raised, and provided any instructions sought. His present solicitor swears that he is probably one of the most diligent clients that she has ever acted for. The plaintiff is entirely blameless for the delay.
Senior counsel for the plaintiff submitted that the principal reason for the delay was the fact that the plaintiff was advised in July 2014 that his only rights were to bring proceedings against his employer pursuant to New South Wales workers compensation legislation, and he could not bring a claim under the Wrongs Act. While that advice was incorrect, and could be capable of giving rise to the plaintiff having rights against his solicitors, that should not be determinative of the present application for reasons well explained in Tsaidis at [27]-[28] and Delai at [34].
The defendants submitted that in terms of the length of and reasons for the delay pursuant to s 27L(1)(a), the length of the delay in commencing proceedings has had a flow-on effect of lengthening the proceedings now commenced via the present interlocutory issue. The plaintiff’s evidence in this application squarely lays the blame for the delay in commencing proceedings at the feet of his legal advisors in 2014 to 2016.

Discussion

The plaintiff's proceedings were commenced four years and 31 weeks after the date upon which he suffered injury. The period between the date of injury and the date this application was made was five years and 33 weeks.
I accept that the plaintiff has always been diligent in following his legal representative advice. The main reason for the delay is that in July 2014, he received counsel’s advice that he could not pursue damages against the first and second defendants, but rather that he had to rely on his workers compensation rights. Between 2014 and 2016, the plaintiff, in accordance with his then legal advice, commenced and continued his workers compensation proceedings. In other words, the plaintiff was blameless for not commencing proceedings earlier. In April 2017, when the plaintiff consulted new counsel, he was advised that he had viable causes of action against the first and second defendants. He acted promptly to commence proceedings after being given that advice.

(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendants – s 27L(1)(b)

The plaintiff accepts that any delay has a capacity to cause prejudice. However, he notes that despite having a period of some months to file affidavit evidence, neither defendant has chosen to adduce evidence of prejudice. The plaintiff argues that the Court may infer that the defendants have identified no actual prejudice. Certainly there is no evidence that either the first or second defendants could be said to have suffered significant prejudice: see Tsaidis at [30].
In relation to s 27L(1)(b), the second defendant submitted that it has suffered prejudice by the passage of a significant period of time, from December 2012 to a trial date which will fall on after late 2019. The defendants referred to and adopted the reasoning in Taylor per McHugh J. In Taylor at 549, his Honour stated that delay causes the whole quality of justice to deteriorate, despite the fact that the deterioration may not be recognisable, because “what has been forgotten can rarely be shown”. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

Discussion

The circumstances of the plaintiff’s injury were comprehensively investigated by a number of authorities and/or corporations.
The results of those investigations have all been produced to the Court pursuant to subpoena. Those documents include a large number of photographs and statements from various witnesses. In addition, the third defendant's workers compensation insurer carried out an investigation and published a report. The plaintiff has also undergone medical examinations over the years, the reports of which will be available to the first and second defendants.
I accept that the quality of witnesses’ recollections will be important, particularly that of Mr Freeman. The plaintiff's case against the second defendant will rely heavily on the evidence of both Mr Freeman and the plaintiff. Mr Freeman, who was employed by the second defendant, can be called as a witness. So can other workers on the site who heard and saw what occurred in the seconds leading up to the plaintiff’s accident, such as the sounding of a horn or the checking of mirrors. Paul, the man who saved the plaintiff’s life, can give evidence. Although he did not witness the accident occurring, he was there in the immediate aftermath. However, despite the availability of these witnesses and their evidence, I accept that the defendants suffer from presumptive prejudice.

(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action – s 27(1 )(c)

The second defendant submitted that s 27L(1)(c) is of little relevance to this application, because the plaintiff knew the material facts of the claim at an early date. The second defendant has also cooperated with all investigating authorities, including making its employees available to give statements to Comcare.

(a) the degree of impairment resulting from the injury has been determined in accordance with section 104B; and
(b) the worker has accepted the determination of the degree of impairment; and
(c) the worker has accepted the entitlement to compensation.

(2) An application under subsection (4) must –
(a) be in a form approved by the Authority; and
(b) be accompanied by an authority in a form approved by the Authority, signed by the worker, authorising the release of medical information to the Authority or a self-insurer relevant to the application.

(15) If the assessment under section 104B made before an application under subsection (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.
(16) If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless-
(a) the Authority or self-insurer
(i) is satisfied that the injury is a serious injury; and
(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker receive advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.”

By Ministerial Direction pursuant to s 134AB, the Minister precluded the bringing of proceedings if the level of impairment of the worker as a result of the injury was assessed to be less than 30 per cent, unless application to a court is made within 30 days of the advice.

Two medical assessments

The plaintiff has undergone two medical assessments. The medical assessment to determine the existence or non-existence of “serious injury” is to be conducted in accordance with s 91 of the Accident Compensation Act, which further obliges that assessment to be performed in accordance with the Australian Medical Association Guides.
It is not in dispute that the plaintiff suffered his injuries while performing his duties as employee of the third defendant at the worksite in Victoria. As the plaintiff was, at the time of the injury, performing duties of his employment and was not a private or domestic matter, his injury arose out of, in the course of, or due to the nature of, his employment: Martin v Bailey (2009) 26 VR 270 at [18]-[19] and [22].
That being the case, the prohibition in s 134AB applies, unless the plaintiff has been assessed by the Victorian WorkCover Authority as having a serious injury, or has made an application to the Victorian WorkCover Authority under s 134AB(4). He can no longer make an application to a Court under s 134AB(16) because he does not have consent to do so from the Victorian WorkCover Authority, nor an advice under s 134AB(7) from the Victorian WorkCover Authority.
The plaintiff has conceded that he has not taken the various steps such as giving notices and obtaining assessments as required under the Accident Compensation Act (T 11.45-50). Instead, he submitted that the Accident Compensation Act does not apply to this claim.
Hence, the plaintiff has conceded that no application has been made by the plaintiff under s 134AB(4), as evidenced by the non-production of any such application pursuant to the first defendant's subpoena filed 14 December 2018. Accordingly, no advice has been given by the Victorian WorkCover Authority under s 134AB(7). Likewise, the plaintiff conceded that he has no evidence of any consent from the Victorian WorkCover Authority pursuant to s 134AB(16)(a).
An assessment of the plaintiff’s impairment was undertaken by Dr Mark O'Brien on 1 April 2014, who gave his opinion that the plaintiff’s whole body impairment was 29%, under the threshold requirement under the Australian Medical Assessment Guidelines for injuries to constitute serious injury. On the basis of that assessment, the plaintiff was advised by Simon Loftus of counsel that he did not have any common law claim against persons other than his employer. That advice was given on 19 March 2014, 31 March 2014, and 22 July 2014. That advice was adopted by the plaintiff’s solicitors, at least from 10 October 2014 until further advice was obtained from counsel on 27 June 2017.
A further assessment of the plaintiff’s injuries was conducted by Dr David Millons on 21 November 2017. Like Dr O’Brien, Dr Millons assessed the plaintiff’s whole body impairment to be 29%. As such, the plaintiff’s injuries were not “serious” within the meaning of s 91E of the Accident Compensation Act, and were under the threshold requirement of 30% required to overcome the prohibition in s 134AB.
Two assessments have both resulted in the plaintiff’s injuries not meeting the threshold in s 134AB. According to the first defendant, the prohibition in s 134AB(1) remains.
The first defendant submitted that as the plaintiff has taken no steps pursuant to the Accident Compensation Act to overcome the prohibition in s 134AB, he is statutorily prohibited from recovering damages for pecuniary and non- pecuniary loss.
Accordingly, in circumstances where the plaintiff is prohibited from bringing his action pursuant to s 134AB of the Accident Compensation Act, the Court should not grant leave to the plaintiff to extend the time for filing his statement of claim.

The plaintiff’s submissions

The plaintiff submitted that s 134AB(1) applies to a “worker who is... entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of employment on or after 20 October 1999 but before 1 July 2014”, and who wishes to bring an action for damages in respect of such an injury. The legal effect of s 134AB(1) is to contingently extinguish a worker's cause of action to seek damages for an injury arising out of, in the course of, or due to the nature of his or her employment: see Quinlan v Catholic Regional College Sydenham [2015] VSC 463 and Perakis v Secretary to the Department of Transport [2016] VSC 320.
The entitlement to compensation outlined in s 134AB(1) is not an entitlement to compensation at large. Rather, it is an entitlement to compensation where the relevant entitlement is conferred by the provisions of the Accident Compensation Act. The plaintiff noted that that is the construction of s 134AB(1) as set out in the following authorities: Banwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Banwon Spinners”); Grech v Orica Australia Pty Ltd (2006) 14 VR 602 (“Grech”) and Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 (“Georgopoulos”). The first defendant referred to Martin v Bailey (2009) 26 VR 270 (“Martin”).

Banwon Spinners

In Banwon Spinners, the Court of Appeal considered four appeals from determinations by the County Court of Victoria involving proceedings brought under s 134AB(16)(b) of the Accident Compensation Act for serious injury certification. It was the most significant consideration of s 134AB since its enactment several years prior, and the construction of the provision received significant attention.
Prior to the decision, there had been legal disagreement about the meaning of “injury” in s 134AB(1). In Banwon Spinners, Phillips JA resolved that argument in the following manner:

“[10] In short, in subs (1) we see no reason at all to conclude that "injury" is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiffs having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.”

Grech

Subsequently, in Grech, the Court of Appeal (Buchanan, Chernov & Ashley JJA) explained the significance and meaning of the identification of a “compensable injury” in detail. Ashley JA, with whom the other members of the Court agreed, gave the leading judgment.
In a lengthy passage at [43]-[54], Ashley JA explained the effect of the decision in Banwon Spinners, namely that the injury described in s 134AB(1) was an injury that conferred an entitlement to compensation under the Accident Compensation Act. The passage is as follows:

“[43] I go to the first question which I earlier said required discussion. It was said in Barwon Spinners that:
• ‘Injury’ where used in s 134AB(1) ‘speaks first and foremost of the plaintiff’s having (in substance) a compensable injury’; the concept of ‘injury’ being understood to mean ‘some physiological change to a body part’.
• It was not enough, in a case ‘when injury was suffered to which employment was a contributing factor over a period of time’, that impairment to a bodily function arose after 20 October 1999. There must be compensable injury, in the sense described, after that date. Neither was it enough that there be injury after that date ‘linked to employment whenever occurring’. There must be ‘injury linked to employment on or after the given date’.
• ‘[I]n respect of injury linked to employment on and after 12 November 1997 recovery of damages at common law was proscribed, albeit that in respect of injury linked to employment on or after 20 October 1999 there were now substantial exceptions.’
• ‘[Subsection] (1) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including subs (2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of subs (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies (including the leave provision in subs (16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description “serious injury” if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses …’
• ‘It is enough on any application under s 134AB(16)(b) for leave to bring a common law proceeding to show that the injury relied upon is injury within the ambit of subs (1) and that it is serious injury as defined.’

[44] Of the four workers whose cases were considered in Barwon Spinners , only in one instance had the worker suffered what the court described as an ‘overall injury’, it having ‘evolved over a period of time spanning the critical date’. In respect of that matter, counsel for the parties made a number of factual concessions. Against that background, the court affirmed its rejection of the (2006) 14 VR 602 at 614 submission that it was enough, in effect, for impairment to occur on or after 20 October 1999, regardless when compensable injury had occurred. It said this:
In our opinion it was critical in this instance for the plaintiff to identify, for the purposes of subs (1), compensable injury that was referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff could not establish how far and to what extent s 134AB applied to her case and accordingly could not establish to what specific injury the leave provision in subs (16)(b) might apply - which meant in turn a failure to establish just what was the injury that had to satisfy the description ‘serious injury’ if leave was to be given.

Later, the court said this:
Mrs Gledhill discovered early in 2000 that she was suffering from carpal tunnel syndrome, yet she could not bring herself within s 134AB because the evidence led upon her application for leave to commence a proceeding against the employer did not establish how far the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date. Such an inquiry might be thought somewhat artificial: certainly it could be difficult for doctors, particularly those consulted late in the piece, to express a reliable opinion on such an issue. In the foregoing, we have opined that s 134AB(1) requires that the overall injury, when evolving over a period of time spanning the critical date, be distributed, as it were, between employment on or after 20 October 1999 and employment before that date; but even if we were wrong and it was sufficient to satisfy s 134AB(1) that the injury relied upon (in that case, carpal tunnel syndrome) was in part linked to employment on or after 20 October 1999 (albeit that part of it was referable to employment before that date), the plaintiff might well be no better off because, under s 134AB(2) she is permitted to sue only if the injury ‘is a serious injury and arose on or after 20 October 1999’. Either way, then, it may be that a plaintiff must establish the extent to which the injury relied upon was linked to employment on or after 20 October 1999 as distinct from employment before that date.

[45] Most of what the court said in Barwon Spinners in the passages which I have cited should admit of no confusion. It is for a plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.
[46] The court used language to describe the conditions of compensability of injury which are not the words of the Act. Thus, for example, it referred to ‘injury linked to employment on or after’ 20 October 1999; and to ‘injury that is referable to employment’ after that date. So also, the court referred to an ‘overall injury … evolving over a period of time spanning the critical date’. But any uncertainty which might possibly arise from the use of such language should at once be put to rest when recourse is had to the language of the Act.
[47] I should amplify that last observation. As the Act stood when the plaintiff was employed by the defendant, ‘injury’ was defined this way:
‘Injury’ means any physical or mental injury and without limiting the generality of the foregoing includes –
…
(b) a disease contracted by a worker in the course of the worker’s employment whether at or away from the place of employment and to which the employment was a significant contributing factor; and
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.

[48] Pausing for a moment, ‘injury’ - as there defined or more generally for accident compensation purposes - will often be constituted by ‘some physiological change to a body part’. But that will not always be so, as Windeyer J observed in Ogden Industries Pty Ltd v Lucas in connection with the similar phrase ‘a sudden physiological change for the worse’.
[49] Next, at the time when the plaintiff was employed by the defendant, as is now the case, an injury was only compensable if it met one of the conditions of compensability set up by the Act. Most often the circumstances of a case would attract the application of s 82(1); but sometimes ss 82(6) or 86, or perhaps some deeming provision. Section 82(1) used, then as now, the formula:
[I]njury arising out of or in the course of any employment.
Sections 82(6) and 86 spoke of injury in the one case, disease in the other, which was ‘due to the nature of employment’.
[50] Putting to one side the inclusion in s 82(1) of the words ‘and if the worker’s employment was a significant contributing factor’, the scheme of the Act was thus that injury was compensable if it answered some part of the statutory definition, and if it met one of the conditions of compensability which I have mentioned.
[51] Next focus on s 134AB. It is concerned with injuries ‘arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999’. That is made clear by subs (1), which was described in Barwon Spinners as ‘truly a preface to all that follows’ in the section. So, as the Act stood when the plaintiff allegedly suffered injury, and when he was last employed by the defendant, s 134AB(1) addressed injuries which conformed with the then definition, and which met one of the conditions of compensability, provided that such injury was sustained, and that the condition of compensability was satisfied, on or after 20 October 1999.
[52] This must be clearly kept in mind. Such an injury could not at the same time be an injury which conformed with the statutory definition and met one of the conditions of compensability before 20 October 1999. That is so even if the two injuries were to the same body part; or if the injury later in time was an aggravation of the injury earlier in time. That is so, also, even if — as here - the worker had the same employer before and after 20 October 1999.
[53] Then consider what s 134AB permitted. In short, subject to restrictions, it permitted the recovery of damages in respect of an injury which satisfied a condition of compensability on or after 20 October 1999. Such a right was not to be confused with a right of recovery of damages in respect of compensable injury sustained between 12 November 1997 and 19 October 1999 - for the injuries were necessarily not the same. The latter was prohibited - subject to exceptions - by s 134A.
[54] Understanding the structure of the Act casts light upon what the court meant in Barwon Spinners when it referred to injury ‘linked’ or ‘referable’ to employment on or after 20 October 1999, ‘but not to employment before it’. It was a way of emphasising that the only injury which could give rise to a right to recover damages under s 134AB was an injury which met a condition of compensability on or after 20 October 1999. The plaintiff must first establish and identify such an injury, and then establish that its consequences met the statutory definition of serious injury.”

In a short judgment in Grech, Chernov JA said at [2]:

“I also agree with Ashley JA. Like his Honour, and for the reasons given by him, I consider that the learned trial judge probably misdirected herself as to what this court said in Banwon Spinners Pty Ltd v Podolak. In that case the court made it plain that the plaintiff must identify the compensable injury in respect of which he or she claims then is an entitlement to compensation under the Accident Compensation Act 1985 and establish that it occurred on or after 20 October 1999.”

Thus, if it were not clear prior to Grech, then following Grech it was clear that the injury described in s 134AB(1) was one that met one of the conditions of compensability under the Accident Compensation Act.

Georgopoulos

Finally and more recently, in Georgopoulos, the Court of Appeal (Osborn J, Forrest and Beach AJJA) was again called on to construe s 134AB. Relevantly for this case, after considering the legislative history and context of s 134AB, the Court considered s I34AB(1) and (2) directly:

“[46] Section 134AB(1) first defines the class of persons to whom it applies by reference to those who are or may be entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment on or after 20 October 1999.
[47] This is a reference back to s 82(1) of the Act:
If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.

…
[52] An injury in this comprehensive sense is commonly described as a ‘compensable injury’ as it was in Banwon Spinners and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB.” (footnotes omitted)

Thus, the phrase “entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment” in s 134AB(1) refers only to an injury that establishes an entitlement to compensation under the Accident Compensation Act. That has been the settled construction since Banwon Spinners.
Senior counsel for the plaintiff is unaware of any case before a Victorian Court in which a party has argued that the entitlement to compensation described in s 134AB(1) was not merely an entitlement to compensation under the Accident Compensation Act, but rather an entitlement to “compensation” under any statutory or other regime.

The plaintiff’s submissions on statutory construction

The plaintiff submitted that there are further reasons why this Court ought to adopt the construction given to s 134AB by the abovementioned authorities.
Firstly, over the years since Banwon Spinners, s 134AB has been the subject of multiple amendments, including the Accident Compensation and Other Legislation (Amendment) Act 2006, the Accident Compensation Amendment Act 2010, the Transport Accident and Accident Compensation Legislation Amendment Act 2010, and the WIRC Act. At no time has the Victorian Parliament amended s 134AB(1) with an express or implicit intention to alter the construction given by the Court of Appeal in Banwon Spinners, Grech and Georgopoulos. Although s 134AB(1) and (2) were amended by s 38(3) of the WIRC Act, the only effect of the amendment with respect to those provisions was to insert the words "but before 1 July 2014" after "on or after 20 October 1999" in each subsection. The plaintiff argued that this aspect of the legislative history indicates that the Victorian Parliament has been satisfied that the interpretation of s 134AB in Banwon Spinners, Grech and Georgopoulos is correct.
Secondly, consideration of s 134AB as a whole indicates that s 134AB(1) concerns injuries that create entitlement to compensation under the Accident Compensation Act, as many of the subsections within s 134AB depend on other provisions of the Accident Compensation Act for their operation. For example, s 134AB(24)(a) directs attention to Division 2B of Part IV. The critical provision within that Division, s 99(1), establishes an entitlement to compensation for medical and like services but only for a worker who has suffered an injury that entitles him or her to compensation.
Section 134AB(25) requires the deduction of the amount of compensation received by a worker, including weekly payments of compensation and compensation pursuant to ss 98C and 98E, upon the worker obtaining a settlement, judgment or order for damages.
Section 134AB(36) terminates the liability of the Victorian WorkCover Authority to make weekly payments upon the resolution of a claim for damages in which pecuniary loss damages are awarded. Weekly compensation is a form of compensation created by s 93 in respect of injuries that entitle a worker to compensation. Similarly, s 134AB(36) removes any liability of the Victorian WorkCover Authority to pay compensation under s 98C or s 98E if pain and suffering damages are awarded to a worker.
Thirdly, there are numerous provisions within the Accident Compensation Act that would have no work to do if the first defendant's construction of the provision was accepted. For example, pursuant to s 134AB(3)(a), subject to subs (4A), a worker may not bring proceedings in accordance with s 134AB unless the determinations of the degree of impairment of the worker have been made under s 104B and the worker has made an application under subs (4). Section 104B imposes specific requirements for the determination of claims for compensation under s 98C. A claim under s 98C is a claim for lump sum compensation for non-economic loss in respect of permanent impairment arising from an injury. Section 98C(1) creates an entitlement to compensation for such an impairment, but only for a worker who suffers an injury which entitled the worker to compensation. There is no way to read this entitlement other than as an entitlement under the Accident Compensation Act. Accordingly, if the first defendant’s construction were accepted, s 134AB(3)(a) would have little work to do.
Fourthly, the plaintiff argued that the first defendants’ construction would lead to absurd results. How would a worker such as the plaintiff comply with s 134AB(3)(a), given that he has no entitlement to compensation under the Accident Compensation Act? It is surely not suggested that s 98C creates an entitlement to compensation for non-economic loss with respect to permanent impairment for injuries that entitle a worker to compensation under some regime other than the Accident Compensation Act.
If the defendants’ construction were accepted, it would not be possible for a worker such as the plaintiff to avail himself of the benefit of s 134AB(15).

Martin

The first defendant has cited Martin as authority for the proposition that although the plaintiff’s claim is not brought under the Accident Compensation Act, s 134AB nevertheless imposes a prohibition on claims brought by injured persons against non-employer defendants where the relevant injury arose out of or in the course of employment.
The plaintiff argued that the first defendant's reliance on Martin is misplaced for three reasons. Firstly, none of the judges in Martin asserted that s 134AB would apply to a person who had no entitlement to compensation under the Accident Compensation Act. Nor did any of the judges suggest that the construction of s 134AB(1) given by Banwon Spinners and Grech was wrong.
Secondly, in Martin at [18], Maxwell P expressly linked the prohibition imposed by s 134AB to an entitlement to compensation under the Accident Compensation Act:

“[18] The prohibition on proceedings at common law applies to ‘a worker who is ... entitled to compensation in respect of an injury arising out of or in the course of... employment’. The manifest policy of s 134AB (and its predecessor provisions) is that a person who is entitled under the Act to compensation in respect of a work-related injury may not bring proceedings at common law in respect of that injury. Subject to the exceptions in s 134AB, the bar on proceedings at common law is co-extensive with the entitlement to compensation under the Act.”

Thirdly, in each of the cases listed by Redlich JA in Martin at [42], the injured worker had suffered an injury which would entitle him or her to compensation under the Accident Compensation Act. In one of the cases, Kidman v Sefa & VSLR Pty Ltd [1996] 1 VR 86 at 88, Brooking J made observations contrary to the argument proffered by the first defendant:

“The general rule laid down by s 135(1) may, for present purposes, be said to be that a worker entitled to compensation under the Act in respect of an injury arising out of or in the course of employment shall not, in proceedings in respect of the injury, whether against the employer or a third person, recover any damages in respect of pecuniary loss.”

Accordingly, there is no basis to construe paragraph [42] in Martin as providing any support for the proposition that the prohibition imposed by s 134AB applies to a worker who has no entitlement to compensation under the Accident Compensation Act.
By operation of s 80(1) of the Accident Compensation Act, the plaintiff has no entitlement to compensation under the Act. As the authorities show, absent that entitlement to compensation, s 134AB does not apply.

Conclusion

I start by reproducing the opening comments in Georgopoulos, where the plurality stated at [1]:

“[1] At 4.00 pm on 31 August 1985, the Accident Compensation Act 1985 came into force. Less than four years later, a Full Court of this court was moved to commence a judgment in the following terms:
‘Yet another appeal comes before this Court concerning the construction of a section of the Accident Compensation Act 1985 (the Act).
The section in question is the troublesome s 135 of the Act …’

Those sentiments are as apposite today as they were more than 22 years ago. The section in question in this appeal is the equally troublesome s 134AB of the Accident Compensation Act 1985 (“the Act”). To borrow from the words of Brooking J in Neville Smith Timber Industries Pty Ltd v Alen, ‘[o]nce again we plunge into the dark and thorny thickets of the Workcare [now called Workcover] legislation’.”

Statutory construction

In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71], McHugh, Gummow, Kirby and Hayne JJ said in respect of the need to construe a statute as a whole:

“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.

If s 134AB were read in isolation, and s 80(1) ignored, s 134AB could be read as excluding the plaintiff’s entitlement to compensation, as his claim for compensation does not fall into s 134AB(a) or (b), nor is it considered a serious injury as set out in s 134AB(2). The plaintiff has also failed to comply with the procedural requirements set out in s 134AB generally.
However, s 134AB of the Accident Compensation Act cannot be read in isolation. Many of the subsections within s 134AB depend on the provision of the Accident Compensation Act for their operation, including s 80, which deals with entitlement to compensation only if the employment is connected with Victoria.
In order for an injury to create an entitlement to compensation under the Accident Compensation Act, the relevant worker’s employment must be connected with Victoria. It is my view that s 80 of Accident Compensation Act makes it clear that the plaintiff’s employment is connected with the State of New South Wales. This is because the plaintiff usually works in that employment in New South Wales, is usually based for the purposes of that employment in New South Wales, and the employer’s principal place of business is in New South Wales (s 80(3)(a)-(c)).
Section 134AB of the Accident Compensation Act has to be read in conjunction with s 80, which provides that there is no entitlement to compensation under the Act unless the employment is connected with Victoria. It is not. Hence, the Accident Compensation Act 2005 (Vic) does not apply to the plaintiff’s claim. The plaintiff’s claim against the first defendant is not futile. Therefore, the first defendant’s notice of motion filed 18 December 2018 should be dismissed with costs.
As the plaintiff’s claim against the first defendant is not futile, I make an order pursuant to s 27L of the Limitation of Actions Act 1958 (Vic) and extend the limitation period in relation to the plaintiff’s cause of against the first defendant and second defendant, up to and including 6 July 2018.

The Court orders that:

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.
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).
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.
Costs in relation to the plaintiff’s notice of motion filed 6 July 2018 are reserved.
The first defendant’s notice of motion filed 18 December 2018 is dismissed.
The first defendant is to pay the plaintiff’s costs of its notice of motion.
The matter is stood over for direction at 9.00 am before the Registrar.

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Decision last updated: 12 July 2019

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 Capricorn Line (Australia) Pty Ltd [2007] VSC 517 Grech v Orica Australia Pty Ltd (2006) 14 VR 602 Holt v Wynter [2000] NSWCA 143 Martin v Bailey (2009) 26 VR 270 New South Wales v Gillett [2012] NSWCA 83 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Spandideas v Vellar [2008] VSC 198 Tsiadis v Patterson [2001] VSCA 138 Vellar v Spandideas [2008] VSCA 139
Category:	Procedural and other rulings
Parties:	Ryan Dollisson (Plaintiff) Australian Rail Track Corporation Limited (First Defendant) P & C Excavations Pty Ltd (Second Defendant) ZERO 05 Pty Limited t/as CR Rail (Third Defendant)
Representation:	Counsel: I Roberts SC with P Menary and A Jzensztat (Plaintiff) J Mitchell (First Defendant) SJ Walsh (Second Defendant) N Hogan (Third defendant) Solicitors: Maurice Blackburn Lawyers (Plaintiff) Wallmans Lawyers (First Defendant) Thompson Cooper Lawyers (Second Defendant) TurksLegal (Third Defendant)
File Number(s):	2017/226236
Publication restriction:	Nil