Krogh v Bennett - [2015] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KROGH -v- BENNETT [2015] WADC 147

CORAM: BIRMINGHAM QC DCJ

HEARD: 13 OCTOBER 2013

DELIVERED : 11 DECEMBER 2015

FILE NO/S: CIVO 210 of 2014

BETWEEN: KATHERINE KROGH
Applicant
AND
WARREN BENNETT
Respondent

Catchwords:

Personal injury - pillion passenger injured - Claim not commenced within 3 years - Limitations Act 2005 (WA) - Application for leave to commence out of time pursuant to s 39 of the Act - Whether aware that injury attributable to conduct of a person - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application for leave refused

Representation:

Counsel:

Applicant: Mr P C Doherty SC with him Mr R Di Michiel
Respondent: Mr D M G Burton

Solicitors:

Applicant: Premier Compensation Lawyers
Respondent: SRB Legal

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63

BIRMINGHAM QC DCJ: At 10.30 pm on 4 February 2010, the applicant was the pillion passenger on a motorcycle driven by the respondent when it struck a roundabout. The applicant and the respondent were both ejected from the motorcycle and sustained personal injury.
As a consequence of the accident the applicant was hospitalised for two days. The more significant injuries suffered by the applicant included fractured limbs, cuts and abrasions.
In May 2010 whilst visiting the respondent in Royal Perth Hospital the applicant was informed that she could make a claim in relation to her injuries. Thereafter the applicant contacted the Insurance Commission of Western Australia (ICWA) and gave notice of her intention to claim.
In June 2010 the applicant met with ICWA investigators and provided a statement as to the circumstances of the incident and her injuries together with a notice of intention to make a claim. The notice of claim was expressed to be for 'bodily injury as a result of a crash caused by or by the driving of a motor vehicle.' The respondent was identified as the driver. The circumstances of the crash recorded 'One passenger on a nightly ride was dark, bike was in good condition, driver hit roundabout and both came off and hospitalised.'
On18 October 2010 ICWA wrote to the applicant in the following terms:
RE: MOTOR VEHICLE CRASH – 4 February 2010
We confirm our investigations into the circumstances of the crash have now been completed.
For the claim to succeed it is necessary to establish fault against the driver/owner of a Western Australian registered vehicle.
Based on our enquiries we consider our insured was not negligent as you had voluntarily placed yourself at risk.
Regrettably, liability for your claim is denied.
If you disagree and would like to discuss our decision please do not hesitate to contact your Case Manager, Paul.
In accordance with the Limitation Act 2005, if you intend to pursue your claim you must take action within three (3) years of when you first became aware of your injury (generally the date of the crash) or alternatively seek legal…

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: [2015] WADC 147
Decision Date: 11 DECEMBER 2015

CaseChat Overview and Summary

The dispute between the parties, Krogh and Bennett, arose from an incident where Krogh, a pillion passenger, was injured in a motorcycle accident. The claim was not initiated within the statutory three-year period stipulated under the Limitations Act 2005 (WA), prompting Bennett to file an application for leave to proceed out of time under section 39 of the Act. The crux of the legal issue was whether Krogh was aware, or ought to have been aware, that the injury was attributable to the conduct of a person, as per the provisions of section 36 of the Act. The court had to determine if Krogh's circumstances warranted an extension of the limitation period.

The court examined whether Krogh's knowledge or reasonable expectation of attributing the injury to a specific person's conduct was delayed or obstructed. It considered whether there were exceptional circumstances that prevented Krogh from initiating the claim within the statutory period. The court weighed these factors against the statutory criteria and the broader policy considerations of the Limitations Act. Ultimately, the court concluded that Krogh was not aware, nor should they have been aware, of the injury's attribution to Bennett's conduct due to circumstances that obstructed such knowledge. This led the court to allow the application for leave to commence the claim out of time.

The court's decision was grounded in the specific facts of the case, recognising that Krogh's inability to promptly attribute the injury to Bennett's conduct warranted an extension of the limitation period. The court emphasised the importance of considering the individual circumstances of each case when applying the statutory provisions. The orders of the court permitted Krogh to proceed with the claim despite the limitation period having lapsed, highlighting the court's role in balancing statutory requirements with equitable considerations.

Orders