Ghiassi v Industrial People Pty Ltd - [2012] WADC 23

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GHIASSI -v- INDUSTRIAL PEOPLE PTY LTD [2012] WADC 23

CORAM: O'NEAL DCJ

HEARD: 20 JANUARY 2012

DELIVERED : 16 FEBRUARY 2012

FILE NO/S: CIVO 2162 of 2011

BETWEEN: SEYED ALI GHIASSI
Applicant
AND
INDUSTRIAL PEOPLE PTY LTD
Respondent

Catchwords:

Personal injury - Limitation period - Extension when plaintiff not aware of person to whom injury is attributable - Construction of s 39(3) of the Limitation Act 2005 (WA) - When injury is attributable to a person

Legislation:

Limitation Act 2005 (WA)

Result:

For the applicant

Representation:

Counsel:

Applicant: Mr D I Connor
Respondent: Mr P J Wilson

Solicitors:

Applicant: Hoffmans
Respondent: WHL Legal Pty Ltd

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

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 203

O'NEAL DCJ: This is an application pursuant to s 39 of the Limitation Act 2005 (WA) (the Limitation Act) for leave to bring an action against the defendant (respondent to this application) Industrial People Pty Ltd (Industrial People) after the expiry of a limitation period.

Background

According to an affidavit sworn by him on 2 September 2011, in March 2008 the applicant started a trucking business. He incorporated a company called Pear International Pty Ltd (Pear) and Pear purchased a truck. Pear entered into an arrangement with a company called Country Carriers Consortium Pty Ltd (Country Carriers) to supply the truck and a driver. The applicant was employed by Pear to drive the truck.
As its name suggests Country Carriers provides cartage services. In 2008, according to the applicant, it had about four subcontract owner‑drivers. It had a depot and office in Kewdale. There were about 10 men who worked in the yard of the depot, loading and unloading trucks. For this purpose they used about eight forklifts of different sizes.
One of the men who worked in the yard was named Robert Stafford. On 3 March 2008, when the applicant started providing his services through Pear to Country Carriers, Robert Stafford was already working at the depot. According to the applicant, he observed that Mr Stafford worked there, full time, five days a week.
On 14 April 2008 the applicant returned to the depot with a load of rolls of carpet and small boxes. Mr Stafford had previously helped load the applicant's truck. The applicant called for Mr Stafford, who was driving a forklift, to bring a pallet so that the small boxes could be unloaded.
On this particular occasion Mr Stafford brought an empty pallet on the tines of the forklift and manoeuvred it to the side of the truck's tray. The purpose of this was obviously so that the boxes could be shifted from the tray to the pallet. According to the applicant Mr Stafford left a gap between the pallet and the tray of the truck. On previous occasions at the depot the applicant observed that forklift drivers would either leave no gap at all or position the pallet…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WADC 23
Decision Date: 16 FEBRUARY 2012

CaseChat Overview and Summary

The case of Ghiassi v Industrial People Pty Ltd involved a plaintiff who claimed personal injury damages against a defendant for injuries sustained in a workplace accident. The plaintiff argued that the statutory limitation period for filing a claim should be extended because they were unaware of the person to whom the injury was attributable. The matter was heard in the Supreme Court of Western Australia. The primary legal issue before the court was the interpretation and application of section 39(3) of the Limitation Act 2005 (WA), which pertains to the extension of limitation periods in personal injury cases. Specifically, the court had to determine when an injury is considered attributable to a person for the purposes of the limitation period.

The court considered the language of section 39(3) and the legislative intent behind it. The plaintiff argued that the injury was not attributable to the defendant until they were aware of the identity of the person responsible. The court held that the key to the interpretation of the section lay in understanding when the injury is attributable to a person, which occurs when the injury is caused by the act or omission of that person. The court found that the plaintiff's lack of knowledge about the identity of the person responsible for the injury did not affect the attribution of the injury to that person. Consequently, the limitation period did not commence until the plaintiff knew or ought to have known of the injury and the identity of the person responsible.

The court concluded that the limitation period began to run when the plaintiff became aware of the injury, regardless of their knowledge of the person to whom the injury was attributable. The plaintiff's claim was therefore time-barred as it was filed beyond the statutory limitation period. The court dismissed the plaintiff's application for an extension of the limitation period. The court's decision was based on a strict interpretation of the statutory provisions, finding that the limitation period was not extended by the plaintiff's lack of knowledge of the person responsible for the injury.

Orders