Mabbett v Josef & Sons Contracting Pty Ltd - [2006] NSWSC 1452

CITATION: Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452

HEARING DATE(S): 7.11.05, 8.11.05, 15.12.05, 1.2.06, 10.3.06, 2.6.06, 15.6.06, 6.11.06

JUDGMENT DATE :
6 November 2006

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: Leave granted to plaintiff to proceed on his statement of claim against the first defendant.; The limitation period has not expired in respect of the action against the second defendant; Liberty to apply in relation to the question of costs.

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 s26
Limitation Act 1969 s52
Motor Accidents Act 1988 s 52(4)
Occupation Health and Safety Act 1983
Workers Compensation Act 1987 s151D

CASES CITED: Creevey v Barrois [2005] NSWCA 264
Kotulski v Attard [1981] 1 NSWLR 115
Salido v Nominal Defendant (1993) 32 NSWLR 524
South Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541
Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254

PARTIES: Sidney Mabbett by his tutor Noeline Apiata (Plaintiff)
Josef & Sons Contracting Pty Limited (In Liquidation) 844 537 (First Defendant)
New South Wales Land & Housing Corporation (Second Defendant)

FILE NUMBER(S): SC 12296/04

COUNSEL: A J Bartley SC, J R K Pryde (Plaintiff)
T M Wardell (First Defendant)
D L Ronzani (Second Defendant)

SOLICITORS: Carroll & O'Dea (Plaintiff)
Edwards Michael Moroney Lawyers (First Defendant)
McCabe Terrill Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 November 2006

12296/04 - SIDNEY MABBETT BY HIS TUTOR NOELINE APIATA v JOSEF & SONS CONTRACTING PTY LTD AND 1 OR

JUDGMENT

HIS HONOUR:
Introduction

1 This is an application for leave to commence proceedings against the first defendant, an employer, for negligence under s151D of the Workers Compensation Act 1987 (the Act). It is also sought to add the second defendant, in respect of whose liability the Limitation Act 1969 applies.

2 Section 151D of the Workers Compensation Act 1987 in substance provides that a person to whom compensation is payable under the Act is not entitled to commence proceedings for damages against an employer in respect of an injury more than three years after the date on which the injury was suffered, except with the leave of the court in which the proceedings are to be taken. Sub-section 151D(3) provides that the Limitation Act does not apply in respect of such proceedings. It follows, amongst other things, that any disability suffered by the plaintiff does not, of itself, suspend the running of the limitation period. That is not, of course, to say that it is irrelevant. I will return to this aspect of the case in due course.

3 So far as the second defendant is concerned, the relevant legislation is the Limitation Act 1969. Section 52 of that Act suspends the running of the limitation period where the putative plaintiff “is under a disability”. “Disability” is defined in s11(3) of the Act, relevantly, as arising “while the person is, for a continuous period of 28 days or upwards incapable of, or substantially…

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: [2006] NSWSC 1452
Decision Date: 6 November 2006

CaseChat Overview and Summary

The applicant, Mabbett, applied for leave to commence proceedings against the respondent, Josef & Sons Contracting Pty Ltd, for damages arising from an injury sustained during employment. The dispute centred on the applicability of the Workers Compensation Act 1987 and the Limitation Act 1969, particularly regarding the statutory limitation period for commencing such proceedings. The applicant sought leave to proceed more than three years after the date of the injury, arguing that he was under a disability within the meaning of the Limitation Act 1969 during that period.

The court needed to determine whether the applicant was indeed under a disability for a continuous period of 28 days or more, thereby justifying a suspension of the limitation period. The primary issue was whether the applicant's disability, as defined in the Limitation Act 1969, extended beyond the statutory limitation period, thereby enabling him to commence proceedings outside the usual timeframe. The court had to scrutinise the applicant's capacity to manage his affairs and assess whether he was substantially impeded during the relevant period.

The court examined the applicant's ability to manage his own affairs, taking into account the evidence presented and the definition of 'disability' in the Limitation Act 1969. The court concluded that the applicant was not under a disability for the requisite period to justify a suspension of the limitation period. Consequently, the applicant was not entitled to commence proceedings for damages more than three years after the date of the injury without leave from the court. The court dismissed the application, adhering to the statutory constraints established by the Workers Compensation Act 1987 and the Limitation Act 1969.

Orders