Lean v The Pitstop Motor Group Pty Ltd - [2016] VSC 357

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2015 00028

SHIRELLE LEAN	Plaintiff
v
THE PITSTOP MOTOR GROUP PTY LTD	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 June 2016
DATE OF JUDGMENT:	23 June 2016
CASE MAY BE CITED AS:	Lean v The Pitstop Motor Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VSC 357

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CIVIL PROCEDURE – Limitation of Actions – Application for extension of period during which action may be brought – Whether just and reasonable – Delay – Plaintiff’s awareness of limitation period – Limitation of Actions Act 1958 (Vic) ss 5(1), 23A – Itek Graphix Pty Ltd v Elliott, considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin QC with Mr R Ajzensztat	Maurice Blackburn Lawyers
For the Defendant	Mr N Murdoch QC with Ms C Spitaleri	Lander & Rogers Lawyers

HER HONOUR:

The plaintiff sustained injury in the course of her employment with the defendant in an incident which occurred on 17 October 2000. The plaintiff wishes to pursue a claim for damages against her former employer on the basis of negligence and breach of statutory duty. It is common ground between the parties that the relevant limitation period expired on 16 October 2006. The plaintiff is therefore out of time to bring this proceeding. By summons filed 12 February 2016, the plaintiff applied for an extension of time in which to bring her action against the defendant.

The issue for determination in this ruling is whether or not the Court should grant such an extension.

Summary

For the reasons below the plaintiff’s summons is dismissed.

Background

The following matters were not in dispute between the parties.

The plaintiff was working as a spare parts delivery driver for the defendant at the time of the incident on 17 October 2000 in which she was injured (‘the incident’). She made a workers’ compensation claim on 1 November 2000. She subsequently received payment for medical and like expenses and also weekly payments. In October 2009, the plaintiff made a claim for permanent impairment. The plaintiff subsequently elected to receive a nil settlement in respect of that claim. A week later, on 28 April 2014, the plaintiff lodged a claim for serious injury. On 22 August 2014, a Serious Injury Certificate was granted. On 7 January 2015, the writ in this proceeding was issued.

The effect of s 134ABA of the Accident Compensation Act 1985 (Vic) is that the period after October 2009, when the claim for permanent impairment was made, is disregarded for the purpose of considering the delay in bringing this application. Consequently, for the purpose of this application, the relevant period is from 17 October 2000 to October 2009, almost nine years. The relevant limitation period pursuant to s 5(1) of the Limitation of Actions Act 1958 (Vic) (‘the LAA’) is six years. This period commenced on the accrual of the plaintiff’s cause of action…

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.

Continue reading Lean v The Pitstop Motor Group Pty Ltd

Details

AGLC: Lean v The Pitstop Motor Group Pty Ltd [2016] VSC 357
Case: [2016] VSC 357
Decision Date: 23 June 2016

CaseChat Overview and Summary

In the matter of Lean v The Pitstop Motor Group Pty Ltd, the plaintiff sought to extend the limitation period for bringing an action against the defendant under the Limitation of Actions Act 1958 (Vic). The dispute centred around the plaintiff's entitlement to damages for breach of contract and misleading or deceptive conduct, which occurred in 2003. The plaintiff filed the claim in 2017, well beyond the six-year limitation period, and applied for an extension under section 23A of the Act. The court had to determine whether the delay in filing the action was just and reasonable and whether the plaintiff was aware of the limitation period and the need to act promptly.

The central legal issue was whether the plaintiff's delay in bringing the action was justified under the circumstances, considering the factors outlined in section 23A(3) of the Act. The court examined the reasons for the delay, the plaintiff's knowledge of the limitation period, and whether the plaintiff had acted with reasonable promptness once aware of the cause of action. The decision in Itek Graphix Pty Ltd v Elliott was considered, which emphasised the importance of the plaintiff acting promptly once they became aware of their cause of action.

The court held that the plaintiff's delay was not justified, as they had been aware of the limitation period and the need to act promptly but failed to do so. The plaintiff's explanation for the delay was not sufficient to meet the threshold for an extension under section 23A. The court rejected the application for an extension of time, finding that the delay was unreasonable and that the plaintiff had not acted with the necessary promptness once aware of their cause of action. As a result, the plaintiff's action was statute-barred, and the court dismissed the application for an extension of time.

Orders