Ducker v The State of Western Australia

[2006] WADC 34

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   DUCKER -v- THE STATE OF WESTERN AUSTRALIA [2006] WADC 34

CORAM:   WISBEY DCJ

HEARD:   8 MARCH 2006

DELIVERED          :   15 MARCH 2006

FILE NO/S:   CIVO 6 of 2006

BETWEEN:   KENNETH ADRIAN DUCKER

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Limitation of Actions - Crown Suits Act 1947 - Application for leave to commence action against employer - Delay of approximately five years - Mistake or any other reasonable cause - Whether defendant materially prejudiced - Whether just to extend time

Legislation:

Crown Suits Act 1947
Workers' Compensation and Injury Management Act 1981

Result:

Leave refused

Representation:

Counsel:

Plaintiff:     Mr G Droppert

Defendant:     Mr L Chiat

Solicitors:

Plaintiff:     Ilberys

Defendant:     Phillips Fox

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

Do Carmo v Ford Excavations Proprietary Limited (1984) 154 CLR 234

Perry v City of Armadale [2004] WASC 167

Case(s) also cited:

Crombie v Uniting Church Trust (WA) (1997) 17 WAR 291

Johnson v Unisys Limited [2001] 2 All ER 801

Malik v Bank of Credit & Commerce International SA [1998] AC 20

McCabe v Cornwall County Council [2004] 3 All ER 991

Quinlivan v Portland Harbour Trust [1963] VR 25

1. WISBEY DCJ: The plaintiff seeks an order pursuant to s 6(3) of the Crown Suits Act 1947 to commence an action against his employer, the State of Western Australia, claiming damages for personal injury allegedly suffered by him as the result of its negligence, breach of contract and/or breach of statutory duty between about March and November 2000 (inclusive).  The cause of action is not further particularised, and having regard to the facts, that is not altogether surprising.

2. The application has not been without its procedural difficulties. The originating summons was filed on 25 January 2006 and nominated as the defendant "Minister for Education". An order was sought for leave to commence proceedings against that defendant pursuant to s 47A of the Limitation Act 1935 seeking damages for personal injury suffered by the plaintiff as a result of the negligence, breach of contract and/or breach of statutory duty of the defendant between January 2000 and November 2000.

3. Section 47A of the Limitation Act relevantly provided that no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless commenced within one year from the date on which the cause of action accrued.  Sub‑section3(a) empowered a court having jurisdiction to hear the action, to grant leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, if it considered that the delay in bringing the action was occasioned by mistake or by any other reasonable cause, or that the prospective defendant was not materially prejudiced in his defence or otherwise by the failure or delay.  Sub‑section 3(c) provides that before an application for leave is made, the party intending to make the application is to give notice in writing of the proposed application and the grounds upon which it is to be made to the prospective defendant at least 14 days before the application is made.

4. Neither the papers, nor argument before me, disclose whether in fact the requisite notice was given to the Minister for Education prior to the filing of the originating summons.

5. In the event the plaintiff's legal advisers concluded that his employer (and consequently the appropriate defendant) was the State of Western Australia, and by order made in chambers on 3 March 2006 the originating summons was amended by substituting the State of Western Australia as defendant, and identifying that the application for leave was pursuant to s 6(3) of the Crown Suits Act.

6. Section 6 of the said Act relevantly provides that no right of action lies against the Crown unless the action is commenced before the expiration of one year from the date upon which the cause of action accrued.  As with the Limitation Act, there is provision that in default of proceedings being instituted within the requisite period "application may be made to the Court having jurisdiction to hear the action when the application is granted, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued" and the Court has a discretion to grant leave where it considers that the failure to commence the action within time was occasioned by mistake or by any other reasonable cause, or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay.  Sub‑section 3(c) provides that before an application is made, the party intending to make the application must give notice in writing of the proposed application and the grounds upon which it was to be made, to the State Solicitor, at least 14 days before the application is made.

7. In an affidavit sworn 13 February 2006, Danielle Alice Winzenried, a solicitor in the employ of the plaintiff's solicitors, deposed that "by letter dated 10 February 2006, Ilberys Lawyers gave notice to the State Solicitor in writing of the plaintiff's intention to seek leave to commence proceedings against the State of Western Australia". That notice post dated the filing of the originating summons, and consequently does not comply with the pre‑condition contained in s 6(3). Although this irregularity appears to be fundamental from a jurisdictional point of view, neither party raised it on the hearing before me.  In all the circumstances I propose to address the substance of the application.

8. For the purposes of determining the application, the following appears to be the relevant history:

   1.The plaintiff commenced employment with the defendant as a graphic designer, level 2, in 1992, his position being re‑classified to level 3 in about 1996.

   2.The plaintiff claims that in 1997 he became distressed as a result of conflict between himself and three project managers, an excessive work load, and a series of meetings with representatives of the defendant; and on 28 April 1998 as a result of "work place stress" he commenced sick leave.

   3.On about 12 June 1998 the plaintiff lodged a workers compensation claim alleging "stress caused by overwork and continual disagreement with some middle managers".  The workers compensation insurer RiskCover referred him for psychiatric assessment, and on or about 19 October 1998, agreed on a without admission of liability basis to pay the plaintiff's medical expenses and to re‑imburse 14 weeks sick leave.

   4.At a return to work meeting held at the Boat Shed restaurant in South Perth in May 1998, it was agreed that the plaintiff would return to work and would be re‑located to the south building so that he would not be in contact with "those people in the Curriculum Design Centre Building ("the CDC") who had caused me stress".  In the event he returned to work on 11 January 1999 subject to a rehabilitation program.

   5.The plaintiff alleges that his return to work was complicated by the fact that there was no rehabilitation program in place, and that after being instituted it was cancelled in late 1999.  He also discovered that some of his personal belongings had been removed from his office.

   6.As a result of departmental restructuring, the plaintiff was advised in writing on about 24 February 2000 that his position as graphic designer level 3 was to be abolished, and that he would be re‑deployed.  A meeting took place on 9 March 2000 concerning re‑deployment.  The plaintiff claimed that he became increasingly stressed and that when on about 10 April 2000 he received a letter requesting his decision as to various options concerning his future employment, he "immediately felt ill and started shaking".

   7.On 11 April 2000, the plaintiff lodged a recurrence disability form with RiskCover identifying the disability as "work related stress to post‑traumatic stress" and identifying the date of the original disability as 28 April 1998.

   8.On 28 April 2000 upon receiving a letter from the defendant's representative indicating that as he had not selected one of the options as a re-deployee, he was to take up a level 2 graphic art position within the CDC as a temporary work placement, the plaintiff claimed that he became ill and experienced panic attacks "at the thought of returning to CDC and possibly having to work near those people with whom I had experienced conflict". Thereafter the plaintiff had various periods from work.

   9.On 20 November 2000 the plaintiff submitted a further recurrence of disability form to RiskCover asserting that he was suffering from stress, developing into a panic disorder, and identifying the original disability date as 28 April 1998.  In answer to the question "if a further incident occurred, please provide details of this further incident?"  He stated "a series of incidents directly related to work occurred after 28 April 1998 through to 25 October 2000, due to these incidents a new illness developed".

   10.The plaintiff commenced proceedings in the conciliation and review directorate of WorkCover on 5 May 2000 to have liability for his claim determined, and following a hearing, review officer Marlene Boon determined on 23 April 2002 that he had not suffered a disability.

   11.The plaintiff, being dissatisfied with the review officer's decision, submitted a further psychiatric report which the review officer was persuaded amounted to 'fresh information' and as a consequence she reconsidered her decision and reversed it on 6 October 2003 holding that the plaintiff in April and October 2000 suffered a disability.

   An appeal was lodged against that decision but did not proceed.

   12.On 24 February 2005 review officer Boon found that in April 2000 and October 2000 the plaintiff suffered a disability as defined in the Workers' Compensation and Injury Management Act 1981.  It appears that she had already done so on 6 October 2003.

   13.On 7 December 2005 review officer Andrew Warwick found that the plaintiff's level of disability was not less than 30 per cent.  .

9. On 3 March 2005, the plaintiff's solicitors wrote to the employer's solicitors purporting to give notice under s 47A of the Limitation Act that the plaintiff intended to commence common law proceedings and seeking the employer's consent to an extension of time.  The letter relevantly stated "in the event that your client does not so consent, we are instructed to bring an application to court seeking leave to bring such an action.  We will submit that the delay in bringing the action was occasioned by reasonable cause, namely that it has only recently been determined that our client suffered a disability pursuant to the Workers Compensation and Injury Management Act.  You will shortly be served with medical evidence indicating that our client's whole body permanent disability is not less than 30 per cent".  On 27 June 2005, the employer's solicitors advised that the application would be opposed.

10. In his supporting affidavit sworn 23 January 2006 the plaintiff stated that on 6 February 2004 he and his solicitor attended an informal conference to discuss settlement of his claim, and during that conference the defendant was advised that the plaintiff intended to bring common law proceedings against it once he had succeeded in establishing his workers compensation entitlement and obtained a determination that his whole body permanent disability was not less than thirty per cent. He stated that his solicitors advised him that unless his whole body permanent disability was assessed at not less than 30 per cent, he was ineligible to receive common law damages and that he should not proceed to issue a writ until that level of disability was established. As a consequence, no steps were taken until the decision of review officer Andrew Warwick on 7 December 2005 that the relevant level of disability pursuant to s 93D of the Workers' Compensation and Injury Management Act 1981 was not less than 30 per cent.

11. That there has been delay is not in dispute.  On the plaintiff's case, the cause of action accrued some time prior to November 2000.  As was identified in the judgment of Wilson J in Do Carmo v Ford Excavations Proprietary Limited (1984) 154 CLR 234 at 245:

    "The concept of a cause of action would seem to be clear.  It is simply the fact or combination of facts which give rise to a right to sue.  In an action for negligence, it consists of the wrongful act or omission and the consequent damage". 

12. The same can be said of breach of statutory duty.  The fact that s 93E of the Workers Compensation and Rehabilitation Act 1981 precludes the awarding of damages unless the degree of disability is not less than 30 per cent, does not effect the accrual of the cause of action.

13. The primary question here is whether the delay (that is between the cause of action and the filing of the present application) was occasioned by mistake or any other reasonable cause.

14. It is properly conceded on behalf of the plaintiff that it was not occasioned by mistake, but it is said that the fact that the plaintiff could not establish an entitlement to damages unless his disability was not less than 30 per cent provides reasonable cause for the delay in instituting proceedings until the appropriate assessment issued.  I do not accept that to be the position.  The plaintiff's cause of action, if any, accrued prior to November 2000 and he notified the employer of his intention to commence common law proceedings on 6 February 2004 but took no steps to seek leave to commence an action until 25 January 2006.  Having regard to his awareness of the provisions of the Limitation Act and by analogy the Crown Suits Act, the delay is neither reasonable nor excusable.

15. That of course is not the end of the matter because it is still necessary to consider whether the defendant is materially prejudiced in its defence or otherwise by the failure or delay.  It is apparent from the material before me that the defendant has at all times been aware of the plaintiff's complaints concerning his employment, and his assertion that the nature of his employment has been causative of disability.  Indeed, the employer has from time to time arranged medical assessment of the plaintiff's condition.  In the circumstances, it has not been materially prejudiced.

16. The issue therefore is whether it is just in all the circumstances to grant leave to the plaintiff to commence common law proceedings against the defendant.  In Perry v City of Armadale [2004] WASC 167 Le Miere J reviewed the authorities and concluded that it was not necessary for an applicant, in the position of the plaintiff, to establish a prima face case before leave could be granted, it being sufficient, if it appeared that the proposed action was "not mala fide merely speculative or absurd".  Although this is not a trial of the issue by affidavit, I am satisfied on the material before me that the plaintiff would have little prospect of establishing the cause of action that he asserts.  It is less than speculative.  In the result I am not prepared to grant leave.