Donnellan v Skilled Engineering Ltd
[2005] TASSC 98
•19 October 2005
[2005] TASSC 98
CITATION: Donnellan v Skilled Engineering Ltd & Anor [2005] TASSC 98
PARTIES: DONNELLAN, Paul Thomas
v
SKILLED ENGINEERING LTD
RENISON BELL LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 529/2004
DELIVERED ON: 19 October 2005
DELIVERED AT: Hobart
HEARING DATES: 6 May, 7 and 22 September 2005
DECISION OF: Master S J Holt
CATCHWORDS:
Statutes – Acts of Parliament – Operation and effect of statutes – Retrospective operation – In general – Principles of wide application – Presumption that statutes changing the law are prospective – The need for a contrary intention to appear with reasonable certainty to displace the presumption.
Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 and Maxwell v Murphy (1956 – 1957) 96 CLR 261, applied.
Workers Rehabilitation and Compensation Act 1988 (Tas), s135 (repealed) and s138AB (added).
Aust Dig Statutes [73]
Limitation of actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Principles upon which discretion exercised – Arguable case – Explanation for delay – Prejudice.
Workers Rehabilitation and Compensation Act1988 (Tas), s135 (repealed).
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips
1st defendant: P L Jackson
2nd defendant: A R Mills
Solicitors:
Plaintiff: Phillips Taglieri
1st defendant: Jackson & Tremayne
2nd defendant: PWB Lawyers
Judgment Number: [2005] TASSC 98
Number of paragraphs: 50
Serial No 98/2005
File No 529/2004
PAUL THOMAS DONNELLAN v SKILLED ENGINEERING LTD
and RENISON BELL LIMITED
REASONS FOR DECISION MASTER S J HOLT
19 October 2005
The application
This is an application for an extension of the primary limitation period imposed by limitation of actions legislation for the bringing of an action for damages for personal injuries. The circumstances in which the application is made are as follows.
By his writ issued 20 October 2004 the plaintiff sues the defendants for damages for personal injuries sustained on 24 April 2001. At the time of his injury, the plaintiff was a third year apprentice electrical technician employed by the first defendant, Skilled Engineering Ltd ("Skilled") to work with employees of the second defendant, Renison Bell Limited ("Renison") at premises from which Renison operated a mine and processing plant. Both defendants have pleaded the primary three year time bar.
The plaintiff's description of the accident is contained in his affidavit supplemented by evidence which he gave under cross-examination. It was not suggested that any of his evidence as to the circumstances should be rejected on the hearing of this application. At about 10 am, the plaintiff was asked by an electrical supervisor employed by Renison to assist another Renison employee, Jason Potito, in repairing a roller door. The roller door which was mostly opened had jammed and the plaintiff and Mr Potito attempted to free it by pushing it further up with lengths of timber. The result was that the door remained inoperative, but had now been pushed out of reach. Mr Potito then indicated that he would get a fork lift with a basket on the tines so that the plaintiff could be elevated to a height where he could work on the door. The plaintiff was told to fetch a harness and some tools. Mr Potito returned, driving the forklift, with the basket sitting on the tines. The plaintiff got into the basket wearing his harness to which he clipped one end of a lanyard. Mr Potito drove the forklift towards the door, raising the basket at the same time. The accident happened before the basket had reached a working position so that the remote end of the lanyard, which had been clipped to the safety harness, was never clipped to a secure point on the building which contained the roller door. The basket which was not attached to the tines began to move sideways. The plaintiff fell out from a height of about two metres and the basket landed on top of him. The plaintiff managed to get to his feet and he then saw that there was a chain attached to the basket and that the end of the chain was underneath one of the wheels of the forklift. As a result, the plaintiff formed the belief that as the forklift was being driven towards the roller door, the chain hanging from the basket was being dragged along the ground and eventually became snagged under one of the wheels of the forklift, pulling the basket down. The plaintiff suffered a fractured pelvis and was hospitalised for five days and off work for five weeks. He received workers compensation payments.
As to the explanation for delay, again there was no challenge to the evidence provided by the plaintiff. He said that shortly after the accident he was told by an employee of Skilled that a three year time limit applied for the commencement of an action for damages for personal injury. The plaintiff said that he did not do anything about taking legal proceedings at the time because he thought that it might prejudice his apprenticeship with Skilled and because he thought that he would make a complete recovery from his injury in any event. About five months after the accident, the plaintiff was transferred by Skilled from Renison to a workplace in Hobart. About 16 months after the accident, the plaintiff completed his apprenticeship. He said at this time he was still suffering symptoms from his injury and so moved to Queensland because he felt that the warmer climate would alleviate his symptoms. He obtained work for a labour hire firm in Queensland, working in the mining industry, and then went on to do some electrical work before returning to Tasmania in June 2004. By then the three year time limit had just passed. On returning to the colder Tasmanian climate he found that his symptoms worsened. The plaintiff wanted to know whether Skilled would pay for any future medical expenses and so he contacted a Skilled manager on 4 October 2004. The manager suggested that the plaintiff obtain legal advice. The same day the plaintiff telephoned a solicitor's office to make an appointment. He saw his solicitor on 6 October and the writ issued on 20 October 2004. A limitation defence was filed on 10 December 2004 and the extension of time application was filed on 2 March 2005.
As to the possibility of any prejudice which might be caused to the defendants as a result of a belated trial, the plaintiff said that after he had returned to work following his hospitalisation he assisted his employer in completing an incident report form. Presumably, accordingly, there are written details of the circumstances of the incident and medical records and there was an opportunity for the defendants to promptly investigate the incident. The defendants did not adduce any evidence and in particular did not adduce evidence of any facts from which the Court might conclude that a fair trial of the action could no longer occur.
The arguments
Between the time of the accident and the filing of the extension of time application, two legislative changes have occurred which the defendants say have an impact on the plaintiff's rights. The first was the introduction of s138AB to the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The amendment was enacted in the Workers Rehabilitation and Compensation Amendment Act 2000, became effective on 1 July 2001 and came with a transitional provision being Sch10, cl 10.
Section 138AB is as follows:
"(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against his or her employer must lodge with the Tribunal an election to claim damages.
(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%.
(3) An assessment of the degree of the worker's impairment is to be carried out in accordance with section 72 or 73.
(4) An election is to be in a form approved by the Tribunal.
(5) An election is to be lodged within 2 years after the date on which the claim for compensation is given to the employer of the worker, or person designated by the employer, under section 34.
(6) The Tribunal may extend the period within which an election is to be made if –
(a) there is a dispute as to the level of the worker's impairment; or
(b) the injury is not stable and stationary.
(7) If there is a dispute as to the degree of impairment, the worker may apply to the Tribunal for a determination of the degree of impairment.
(8) An application under subsection (7) is to be –
(a) accompanied by evidence from a medical practitioner that he or she is of the opinion that the degree of impairment is not less than 30% of the whole person; and
(b) made not less than 21 days before the expiration of the period referred to in subsection (5).
(9) If the Tribunal determines the degree of impairment to be not less than 30% of the whole person, the worker is to lodge his or her election within 21 days after the determination.
(10) The Tribunal may refer the question of the degree of impairment to a medical panel in accordance with Part V.
(11) An election to claim damages does not preclude a worker from receiving compensation under this Act.
(12) This section does not apply to proceedings taken by a personal representative or dependant of a worker who has died as a result of an injury for which compensation is payable under this Act."
Schedule 10, cl 10, is as follows:
"Claims for compensation
(1) Subject to subclause (3), all claims for compensation and claims for damages made against an employer independently of this Act in respect of an injury which occurred before the commencement day and not finally determined before that day are, on and after that day, to be continued and determined in accordance with this Act as in force immediately before that day.
(2) For the purposes of this clause, a claim for compensation includes any subsequent claim arising from the injury in respect of which the claim for compensation was made.
(3) The amendments to this Act made by sections 35(b), 40, 41, 42, 49, 54, 55 and 57 of the Workers Rehabilitation and Compensation Amendment Act 2000 apply to all claims for compensation not finally determined before the commencement day."
The second legislative change was the repeal of the limitation provision in the Act, namely, s135. That repeal was enacted in the Limitation Amendment Act 2004 and took effect on 1 January 2005. The repealed s135 was as follows:
"(1) Where any payment of compensation under this Act in respect of an injury has been accepted by a worker, no proceedings shall be commenced by him, after the expiration of a period of 3 years after the date on which the injury was suffered, against the employer to recover damages in respect of that injury.
(2) Notwithstanding anything in subsection (1), on application made in that behalf by a worker, the Supreme Court or a judge in chambers may, after giving the employer an opportunity of being heard, extend the period referred to in subsection (1) by such further period, not exceeding 3 years, as the Court or judge thinks necessary.
(3) The powers conferred on the Supreme Court or a judge by subsection (2) may be exercised notwithstanding that the period mentioned in subsection (1) may have expired."
The arguments advanced on behalf of the defendants in opposition to the plaintiff's extension of time application, in order of presentation by counsel, were as follows:
(1)The repeal of the Act, s135, has resulted in the Court being left without jurisdiction to lift the three year time bar which currently protects the defendants.
(2)The introduction of the Act, s138AB, has extinguished the plaintiff's right of action, there being no suggestion that he has a degree of permanent impairment of the whole person of not less than 30 percent and there being no suggestion that he has made a valid election to commence proceedings.
(3)In any event, the circumstances of the accident as set out by the plaintiff, are such that a court would be unlikely to conclude that the accident was the result of a breach of the duty of care owed by Skilled to its employee.
(4) The plaintiff has failed to satisfactorily explain his delay in commencing proceedings.
(5)The court ought not to be persuaded in all the circumstances that the justice of the case rests with the grant of the extension sought.
The claim that with the repeal of the limitation provision the Court is without jurisdiction to extend time
The accident having occurred on 24 April 2001 the time limit contained in the Act, s135(1), barred the plaintiff's remedy effective from 24 April 2004. By 1 January 2005, when the repeal of the Act, s135, came into effect, the bar had not been removed. The Acts Interpretation Act 1931, s16(1)(c), is as follows:
"(1) Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not –
…
(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;".
The Acts Interpretation Act, s16, which concerns repeals, equates with the common law position which applies to legislative changes generally. The position at common law is as set out in Maxwell v Murphy (1956 – 1957) 96 CLR 261, where Dixon CJ said at 267:
"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."
The right to rely on the time bar having accrued on 24 April 2004, prior to the coming into effect of the Limitation Amendment Act 2004, is a right which accordingly has not been affected by the repeal. Both defendants say that they have that right. Skilled was the employer and Renison claims also to be an employer within the meaning of the Act, s135. On behalf of Renison it was submitted that the Act, s132, at all material times provided that "employer" includes a person liable under the Act, s29, to pay compensation. Subsection (1) of that provision is as follows:
"(1) Where a person (in this section referred to as 'the principal') in the course of, or for the purposes of, his trade or business contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is liable to pay to a worker employed in the execution of the work any compensation under this Act that he would have been liable to pay if that worker had been immediately employed by him."
Without deciding it, I shall assume for the purposes of this application that Renison is a principal and hence an employer of the plaintiff within the meaning of the now repealed s135.
As to whether the Act, s135(2), which empowers the court to extend time continues to have operation despite the legislative repeal, I was referred to what was said in Adkins v State of Tasmania [2005] TASSC 45. I refer to par4 which is as follows:
"Both counsel for the plaintiff and counsel for the defendant submitted that notwithstanding the repeal the Act, s135 continues to apply to the action. In short, the following is common ground between counsel:
hUnless the language used in the statute plainly manifests a contrary intent a statute affecting vested rights is to be construed as prospective and a statute, merely procedural, is to be construed as retrospective: Maxwell v Murphy (1957) 96 CLR 261 at 270.
hUnless the contrary is expressly provided the repeal of an enactment does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment: Acts Interpretation Act 1931, s16(1)(c).
hLegislation imposing limitation periods whether barring the remedy or extinguishing the right is legislation of substance not procedure: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at par100.
hThe Act, s135, concerns rights not procedure, namely, the right of a defendant (subject to the granting to the plaintiff of an extension of time) to rely upon the protection of a statutory time bar and the right of a plaintiff to call upon the court to exercise a discretion as to whether to extend time."
Mr Jackson, on behalf of Skilled, takes issue with point 4. He says that the power to ask the Court to extend time was not a right and hence was not preserved when s135 was repealed. Mr Jackson drew my attention to four cases, the first of which was Mathieson v Burton (1970 – 1971) 124 CLR 1. There the Court was considering the Landlord and Tenant (Amendment) Act 1948 (NSW), s83A(1)(b), which provided that a child of a lessee of prescribed premises, who was over the age of 21 years and resided with the lessee immediately before the lessee's death, had until probate or letters of administration were granted the like right to continue in possession that the lessee would have had if he or she had not died. The lessee, who had the benefit of a long term residential lease, died in 1958 at a time when his adult daughter was living with him at the premises. By the Landlord and Tenant (Amendment) Act 1968, s4(h), the Act was amended to impose an additional qualification on the right to remain in possession. In particular, under the amending legislation, the child must have been at the date of the lessee's death "a protected person or … in receipt of a pension under the Social Services Consolidation Act 1947". In 1969 the daughter was still in possession, neither probate nor letters of administration having been granted. The landlord commenced ejectment proceedings and the daughter claimed that her right to remain in possession had not been lost with the amendment because of the Interpretation Act 1897 (NSW), s8(b), which was in substantially the same terms as the Acts Interpretation Act 1931 (Tas), s16(1)(c). The New South Wales provision was as follows:
"Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not … (b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed."
Gibbs J said at 23 and 24:
"The presumption of the common law is that this right, having been acquired, should not be affected by the provisions of s4(h) of the Act of 1968 which clearly dealt with matters of substantive law and not with matters of procedure. The same presumption would arise if s8(b) of the Interpretation Act of 1897 (NSW) applied. That section in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v The Minister for Lands (1895) AC 425, at p431), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v Ho Po Sang (1961) AC 901 ); but it does protect anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent' (Free Lanka Insurance Co Ltd v Ranasinghe (1964) AC 541, at p552 ). In Hamilton Gell v White (1922) 2 KB 422, at p431, Atkin LJ said that s38 of the Interpretation Act 1889 (UK) 'was not intended to preserve the abstract rights conferred by the repealed Act' and 'only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute'. In the present case, before the Act of 1968 was passed, all the events specified in s83A(1)(b) had occurred, nothing more remained to be done to make effective the right described in s83A(1) and the respondent had acquired a right under that subsection which would, therefore, be saved by s8(b) of the Interpretation Act of 1897 (NSW) if this were the case of a repeal rather than an amendment."
The second and third cases referred to by counsel were Abbott v Minister for Lands [1895] AC 425 and Director of Public Works & Anor v Ho Po Sang & Ors [1961] AC 901. In Abbott, a landowner had a statutory right to purchase adjoining Crown land without satisfying a residential requirement. Changes to the legislation were made so that under the new legislation the landowner had to satisfy a residential requirement which in the case before the court he did not. After the amendment, he applied to purchase adjoining Crown land relying on the proposition that previously he had been a qualified purchaser and that the change to the legislation setting out purchase qualifications did not divest him of the right to purchase which he had previously enjoyed. The Privy Council said at 431:
"It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.
It may be, as Windeyer J observes, that the power to take advantage of an enactment may without impropriety be termed a 'right'. But the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment."
In Ho Po Sang, legislation enabled tenants to be evicted if the Director of Public Works authorised the demolition of a building for rebuilding purposes, by the issue of a rebuilding certificate. In accordance with the statutory procedure, the Director issued a notice of intent to issue a rebuilding certificate and notices of intent to evict were served on the tenants. The tenants exercised their right of appeal to the Governor in Council, but before the appeal was determined, the legislation enabling the eviction was repealed and replaced with legislation requiring the payment of compensation to evicted tenants. Following the repeal the Director, in pursuance of his notice of intent, went ahead and issued a rebuilding certificate and formal notices to quit were served on the tenants. The Privy Council said at 926:
"… in the present case no right existed or had accrued, and the intended investigation which had not taken place before the time of the repeal (ie, the consideration by the Governor in Council) was an investigation in order to decide whether a right should or should not be given. It was not itself a right or privilege which was preserved by the Interpretation Ordinance.
…
The result is, therefore, that when sections 3A, 3B, 3C, 3D and 3E were repealed on April 9, 1957, the lessee had no right to vacant possession under those sections: and he could only recover possession under the sections remaining in force, which provide for compensation."
The last of the cases referred to by Mr Jackson was Esber v The Commonwealth of Australia & Anor (1991 – 1992) 174 CLR 430. There a former member of the defence forces applied to redeem his weekly entitlement which exceeded $50 under compensation legislation so that he would receive a lump sum. His application for redemption was rejected by the Commissioner for Employees Compensation. He applied to the Administrative Appeals Tribunal for a reconsideration of the Commissioner's decision, but before the reconsideration occurred, the legislation was repealed and replaced with legislation limiting the right to redemption of weekly benefits to recipients whose weekly entitlement did not exceed $50. Mason CJ, Deane, Toohey and Gaudron JJ said at 440 – 441:
"If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685, at p694:
'The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.'
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment' Mathieson v Burton (1971) 124 CLR 1, Gibbs J at p23; and see Robertson v City of Nunawading (1973) VR 819. Nor was it a mere matter of procedure. See Newell v The King (1936) 55 CLR 707, at pp 711-712; it was a substantive right. See, by way of analogy, Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, at pp 175, 178, 185, 194; Colonial Sugar Refinery Company v Irving (1905) AC 369, at pp372-373. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent' Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at p552; see also Continental Liqueurs Pty. Ltd v G.F Heublein and Bro Inc (1960) 103 CLR 422, at pp 426-427; Director of Public Works v Ho Po Sang [1961] AC 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act."
It is on the basis of these authorities that Mr Jackson made his submission in the following terms:
"Thus the approach taken by counsel in Adkins v The State of Tasmania recorded in paragraph [4] of the judgment in that case is wrong and the better view is that section 135(2) did not confer a substantive right preserved by section 16(1)(c) of the Acts Interpretation Act, but rather a power or opportunity to take advantage of section 135(2) so as to acquire a right, that is the right to commence an action for damages that had been barred by section 135(1).
Even if section 135(2) may properly be said to confer a 'right' to invoke the jurisdiction of the Court, the mere right to invoke that jurisdiction is not a 'right … accrued' to the Plaintiff within the meaning of section 16(1)(c) of the Acts Interpretation Act."
In Mathieson, all of the facts necessary for the daughter to have a right to remain in the tenanted premises had occurred before the change to the legislation and so she was unaffected by the change. In Abbott, the right asserted was a right to acquire Crown land, but before that right accrued the landowner had to take a substantive step, namely, the landowner had to apply for a conditional purchase. A substantive step needed in order to perfect the right not having occurred by the time of the legislative change, it was held that the landowner had no accrued right to acquire the adjoining Crown land. In Ho Po Sang, the right to evict tenants without compensation did not accrue until the Director of Public Works issued a rebuilding certificate. No such certificate having issued by the time of the legislative change, there was no right to evict free of compensation which had accrued. In Esber, the compensation recipient's right to have the adverse determination of his redemption application reconsidered by the Administrative Appeals Tribunal had accrued prior to the legislative change and so he was entitled to the benefit of that reconsideration notwithstanding the alteration to the law.
The question is whether the power to call upon the Court to exercise a discretion to extend time was a right acquired or accrued by the plaintiff prior to the repeal. The plaintiff suffered personal injury at work in circumstances where his employer might, in the event of a damages action, be held to be liable. He had received workers compensation payments. This is the situation which applied in 2001 and so even in 2001 he was entitled to bring an application asking the Court to extend the primary three year limitation period which applied. The right to bring the application and have the Court determine it had been perfected by past events. It was not dependent upon there coming into existence other facts or circumstances which were pre-requisites to the existence or exercise of the right. The filing of an application in the Court is a procedural step and is not a substantive step which goes to the accrual of the right.
Mr Jackson's submission is based upon the erroneous footing that the relevant right is "the right to commence an action for damages", and that that right was not in existence at the time the Act, s135, was repealed. The plaintiff has always had the right to commence his action regardless of the expiry of the limitation period, as the limitation legislation did not build in essential conditions of the right of action itself, but merely barred the remedy without extinguishing the right: Hall v Nominal Defendant (1967 – 1968) 117 CLR 423 at 442. The right which the plaintiff asserts here is a right to have the court consider whether time should be extended and a right to the benefit of the determination if it is favourable to him. Expressed in these terms, the right claimed is indistinguishable from the right confirmed in Esber to have survived the legislative change, in particular, a right to call upon a tribunal to make a decision and take the benefit of that decision once made.
Accordingly, if the Limitation Amendment Act 2004 was legislation which repealed or changed the statutory law regarding limitation periods, it did not affect the plaintiff's ability to bring his extension of time application nor the court's ability to determine that application.
Mr Phillips for the plaintiff says that all of this analysis is unnecessary as the Limitation Amendment Act 2004, insofar as it concerns s135, is a consolidating piece of legislation. According to Mr Phillips, the amending Act simply removes the limitation provision from one piece of legislation and puts it into another, namely, the Limitation Act 1974, so that the rights of the parties now fall to be determined solely by reference to the Limitation Act, s5(1) and (3) which are as follows:
"(1) An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of, or include, damages in respect of personal injuries to any person shall not, subject to this section, be brought after the expiration of a period of 3 years from the date on which the cause of action accrued.
…
(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued."
Upon the repeal of the Act, s135, the Limitation Act commenced to have application to employees' claims for damages. Section 38 of the Limitation Act being as follows:
"This Act does not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment."
Zeeman J said in Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996:
"It may be questioned whether the provision of a limitation period in the Workers Compensation Act 1988, s135(1) serves any purpose. The period specified and the power of a judge to extend time do not differ in any relevant way from the Act, s5 which is of general application to actions for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injury. I suspect that the reason for this provision is historical. Until 1986 a much shorter limitation period and a much more restricted power to extend time applied in respect of such actions brought by a worker who had accepted compensation than other cases. In turn, those special provisions applying to workers who had accepted worker's compensation, represented a more liberal attitude than that which was evinced by the original workers compensation legislation, by which a worker who accepted compensation could not recover damages at common law (Workers' Compensation Act 1910, s5). There seems to be no present reason to retain special limitation provisions for cases where compensation has been paid."
At first glance the submission of Mr Phillips is attractive, but in my opinion on close analysis it does not withstand scrutiny as the effect of the Limitation Amendment Act 2004 went beyond merely moving the limitation provision from one enactment into another.
The observation of Zeeman J that the Act, s135, and the Limitation Act, s5, were effectively the same was undoubtedly correct when his Honour made the observation, but would not have been correct following the introduction into the Act of s138AB on 1 July 2001. The requirement for an agreement or determination that there is a degree of permanent impairment being "a percentage of the whole person of not less than 30%" followed by an election is a requirement which must be met before a cause of action against the employer exists: Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 86. The matter of importance is that the Act, s135, started the limitation clock running from "the date on which the injury was suffered" as distinct from the Limitation Act which only starts the limitation clock running "from the date on which the cause of action accrued". Take for example a worker who is injured in, say, July 2001. If the injury deteriorated to a stage where there was a 30% impairment say in July 2003 and an election was made then the primary limitation period for the commencement of the action would still have expired in July 2004 being three years from the date of the injury, even though the cause of action had not arisen until the impairment had progressed to 30% in July 2003. If the Limitation Act, s5, simply took over with retrospective effect with the repeal of the Act, s135, the worker, in my example, would have the benefit of a primary limitation period not expiring until July 2006, five years after the date of the injury, albeit within three years of the date of the accrual of the cause of action.
In Craies on Statute Law, 7th ed, the learned author says of consolidating legislation at 362:
"The effect of most of these Acts may be described as purely literary. In so far as the Act is purely a consolidation Act, although it may repeal the reproduced enactments, the repeal is merely for the purpose of rearrangement, and there is no moment at which the substance of the older enactments ceases to be in force, although it is true that its ancient form is destroyed by the process of reproduction and repeal. The consolidation merely places together in a later volume of the statute-book enactments previously scattered over many volumes."
There being a change in the starting point of the limitation period, it cannot be said that all the Limitation Amendment Act 2004 did was to lift s135 from the Act and move it without material alteration into the Limitation Act 1974.
I conclude that the plaintiff has a right to apply for an extension of time and a right to rely on any favourable exercise of the discretion which he might obtain because these are rights preserved rather than rights transposed. The rights are preserved because notwithstanding the repeal of the Act, s135, the common law, Maxwell v Murphy, and the Acts Interpretation Act, preserves them. The power to call upon a tribunal to exercise a discretion, if it existed immediately prior to the repeal, is an acquired or accrued right: Esber v Commonwealth of Australia & Anor. There was no suggestion that it could be discerned from the amending statute with reasonable certainty that substantive rights existing at the time of repeal were to be lost.
The claim that the Workers Rehabilitation and Compensation Act 1988, s138AB has retrospective effect
As noted earlier, the plaintiff was injured on 24 April 2001 and the Act, s138AB, did not come into effect until 1 July 2001. The plaintiff had a right of action from the moment he was injured. If s138AB is given retrospective effect, that cause of action will have been lost with the legislative change on 1 July 2001. Since that time there must be, as the statute dictates, a permanent impairment being "a percentage of the whole person of not less than 30%" before a right of action can accrue: Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd.
Mr Jackson, in accordance with Maxwell v Murphy, acknowledges that an intended retrospective operation must appear from the statute with reasonable certainty. He says that such an intention appears by implication under Sch10, cl 10, which has been set out earlier in these reasons. The argument proceeded that without a 30 percent impairment there is no cause of action and so there is nothing to which an extension of time might attach and, accordingly, the application must be dismissed for this reason.
Mrs Mills, for Renison, adopted the submission and said that it applies to her client for the same reasons she said made Mr Jackson's s135 submission applicable to her client. As before, but without deciding it, I shall assume for the purposes of this application that Renison is a principal and hence is regarded as an employer within the meaning of s138AB.
The presumption that amending, or repealing legislation does not take away existing rights is long established. In Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647, Dixon J said at 652:
"But it is more satisfactory to decide the wider question whether the amendment applies to cases in which the injury by accident was caused to the worker before the amending Act came into force. The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends, appears with reasonable certainty. But, when the alteration in the law relates to the mode in which rights and liabilities are to be enforced or realized, there is no reason to presume that it was not intended to apply to rights and liabilities already existing and its application in reference to them will depend rather upon its particular character and the substantial effect that such an operation would produce."
Schedule 10, cl 10(1), provides that, subject to subcl(3), all claims for compensation and claims for damages made against an employer in respect of an injury occurring before the commencement day are to be continued and determined in accordance with the law which applied immediately before the day on which the amendments commenced. Clause 10(3) exempts from the operation of subcl (1) some procedural alterations introduced with the amending legislation.
The relevant presumptions are that legislation concerning substantive rights does not operate retrospectively, but legislation affecting matters of procedure does so operate. If the legislative intent is to displace such presumptions, the intent needs to be expressed with reasonable certainty. Clause 10 is expressed to be dealing with "claims" not rights and so on its face is concerned with matters of procedure. This is reinforced by subcl(3) which distinguishes between those new procedures which will apply to claims based on events predating the amendments and those new procedures which will not.
I have not been referred to any provision of the Act, either amended or unamended, which deals with the procedure for claiming damages at common law, but the absence of such provision, in my view, would not be enough to justify a conclusion with the reasonable certainty required that cl 10 concerns substantive rights acquired or accrued with effect that these rights are lost unless a claim has been made or an action commenced before the amending legislation took effect on 1 July 2001.
I conclude that the presumption against the retrospective operation of amendments affecting substantive rights has not been displaced and, accordingly, that the plaintiff's cause of action has not been lost.
The merits of the application
On behalf of both Skilled and Renison it has been conceded that the plaintiff has a viable case, but Mr Jackson for Skilled submits that the case against Skilled is unlikely to succeed. Mr Jackson points out that the plaintiff's evidence is that whilst at Renison he worked under the supervision of Renison employees and that a Skilled supervisor regularly visited the work site for purposes including receiving details of any concerns Skilled employees might have regarding the safety of the system of work. Although the plaintiff had access to this person and had been raised up using the forklift and the basket on occasions before his injury, he had made no mention of this practice to the Skilled supervisor and the Skilled supervisor had not been present on any of the occasions when the forklift and the basket were used.
In Williams & Anor v Petersons' Industrial Paint Services Pty Ltd & Anor [2002] TASSC 99, Blow J, with the agreement of Crawford J and Evans J said at par7:
"The employer's duty of care 'is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear': Kondis (supra) per Deane J at 694. However an employer will be liable for damages for negligence only if a reasonable employer similarly circumstanced would have taken some step or steps that would have obviated the risk of injury. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48, Mason J (with whose reasons Stephen and Aickin JJ agreed) said the following:
'In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.'"
In New South Wales v Lepore (2002 – 2003) 212 CLR 511, Gleeson CJ said at par22:
"His Lordship's insistence that the first step is to identify the extent of the obligation that arises out of a particular relationship, whether contractual or non-contractual, is important. In the context of employment, for example, a duty to take reasonable care for the safety of workers cannot be discharged by delegation; but delegation does not transform it into a duty to keep workers free from all harm. A duty to see that reasonable care is taken for the safety of workers is different from a duty to preserve them from harm. Some confusion may result from describing it as a duty to "ensure" that reasonable care is taken for the safety of workers, which may give rise to the misconception that the responsibility of an employer is absolute."
Also in Lepore, Gummow and Hayne JJ said at pars259 and 261:
"The duty of an employer to provide a safe place and system of work and a safe staff is said to be non-delegable because 'the employee's safety is in the hands of the employer' and because '[t]he employee can reasonably expect ... that reasonable care and skill will be taken'. In the case of a school authority, it is said that it is 'the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety'. In each of these cases (and in other cases where non-delegable duties have been imposed) there is the common thread, identified in Burnie Port Authority, of an undertaking of care, supervision or control of another.
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None of the considerations we have mentioned suggests that the person upon whom the duty is cast should be the insurer of those to whom the duty is owed. The duty that is identified is imposed on a person in relation to a particular kind of activity - employing others in some business or other venture, conducting a school or hospital. The duty concerns the conduct of that activity. It is not a duty to preserve against any and every harm that befalls someone while that activity is being conducted."
If this was the trial of the action there may be substance in Mr Jackson's claim that the case, although not without some prospect of success, is weak. However, an applicant for an extension of time does not need to show that he will succeed at trial or even that it is likely that he will succeed. All the applicant needs to show is that the claim is viable. This was pointed out by Kirby P in Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497. An application for an extension of time does not involve a preliminary hearing for the purpose of assessing the strengths or weaknesses of the case that the plaintiff wishes to bring to trial. As Cox J, in relation to the skeletal evidence that is often presented on applications of this kind, pointed out in Soul v Soul 23/1982 at p6:
"It may be that at a subsequent trial additional evidence might alter its complexion to such an extent that the conclusion no longer remains open."
Here, as has been conceded, there is enough in the plaintiff's evidence from which a tribunal of fact might conclude that Skilled was negligent. The practice of using the forklift and the basket not firmly affixed to the tines, which appears to have resulted in the plaintiff's injury, was a practice that a tribunal of fact might find carried with it a foreseeable risk that the basket would dislodge, causing its occupant to fall and suffer injury. That is to say a risk which is not merely far fetched or fanciful. The evidence is that it was a practice that had been employed on occasions in the past and so was a practice which a tribunal of fact might conclude could have been discovered by Skilled through enquiry or observation and a practice which Skilled could have put a stop to insofar as it concerned Skilled employees. As the action progresses towards trial, it might be that facts and documents discovered by the defendants will show that Skilled could easily have discovered the existence of the practice, or perhaps even that Skilled knew of the practice. Similarly, there might be witnesses whose evidence shows that Skilled was aware of the practice prior to the plaintiff's injury. I am not prepared to conclude that the case which the plaintiff might present at trial will be a weak case.
Next it was submitted on behalf of the defendants that the explanation for the delay is not satisfactory. The plaintiff, according to his affidavit, was of the opinion from shortly following his fall, that the equipment provided was not suitable for the task. Shortly after the accident, the plaintiff was told that there was a three year time limit for bringing an action for damages for personal injury. The plaintiff said that he did not bring an action initially because he thought he would make a full recovery and he thought that bringing an action might prejudice his employment. However, by about 18 months after the accident, the plaintiff was still suffering symptoms sufficient for him to decide to move to a warmer climate in Queensland and also he had ceased working for Skilled and had long since ceased working at the Renison mine and plant. In short, it was submitted that the plaintiff elected not to bring a damages action and then after allowing the primary limitation period to pass, had changed his mind.
The plaintiff's initial decision not to take proceedings is understandable. About five weeks after the accident he was able to return to work and continued working for Skilled until he completed his apprenticeship in August 2002. He then moved to Queensland because he believed that the colder weather in Tasmania was aggravating his symptoms. He was able to work in the mining industry and also undertake some electrical work whilst he lived in Queensland. However, when the plaintiff returned to Tasmania in late June 2004 he found that his symptoms became worse. In particular, since his return to Tasmania, he has had a regular dull ache in the pelvic area and if he works on his feet all day he feels "as if I have a needle poking in my hip".
The plaintiff is not free from blame so far as the delay is concerned. He believed that his injury was the result of unsafe working practices from soon after its occurrence. He knew of the three year time limit. His injuries were significant in that they involved hospitalisation and have continued to have a significant impact on the plaintiff's lifestyle. In particular, I refer to the plaintiff's affidavit where he said at par32:
"Prior to my accident I was very fit. I weighed 65kg and I had been a regular triathlon competitor. I was the junior state champion. Although I had not competed in triathlons for about 12 months prior to my injury I continued training sessions regularly and it was my intention to continue with this sport. I am now unable to walk, run more than about 2 kilometres and I am now restricted to upper body work in the gym."
The fact that the plaintiff is at fault in the delay is a matter to which significant weight will be attached. He made an election early on not to sue and then aware of the time limit and while still suffering significant affects of the injury, allowed the limitation period to pass. I do not regard the reasons for the delay, however, as being such that they should lead directly to a conclusion that it would not be just to allow the plaintiff to resile from his initial decision not to sue. This feature, however, as I have said, will be given considerable weight when I undertake the balancing exercise described by the Full Court in Hill v Iluka Corporation Ltd [2002] TASSC 113 at par23 in the following terms:
"… regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced."
Neither of the defendants assert that extending time will cause to them any specific identifiable prejudice or oppression. Absent such an assertion, and combined with the evidence that there was a witness to the accident, the plaintiff was hospitalised immediately after the accident and that an incident report was undertaken shortly following the accident, I infer and accordingly find that the chances of a fair trial have not been lost.
Finally, in considering the matter, I have regard to the rationales for enacting limitation periods as set out by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 – 553, namely:
(a)As time goes by relevant evidence is likely to be lost. The longer the delay the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose.
(b)Allowing actions to be belatedly commenced is oppressive to prospective defendants.
(c)People should be able to arrange their affairs on the basis that claims can no longer be made against them.
(d)There is a public interest in having disputes settled quickly.
The plaintiff has a viable case against both defendants and removing the time bar which currently protects the defendants will not cause them material prejudice or oppression. The delay is relatively short, the action having been commenced about 3½ years after the accident occurred. Against these matters is the fact that the plaintiff, knowing of the limitation period, elected not to sue allowing the period to pass, a feature to which I attach significant weight. Also, I take into account the legislative policy behind the enactment of limitation periods. On balance I am persuaded that the justice of the case rests with the grant of the extension of time sought.
Order
The time within which the plaintiff may commence his action against the defendants is extended to the date of the issue of the writ, namely, 20 October 2004.
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