McLoughlin v John Holland Pty Ltd - [2018] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   MCLOUGHLIN -v- JOHN HOLLAND PTY LTD [2018] WADC 75
CORAM:   JUDGE GOETZE
HEARD:   21 MAY 2018
DELIVERED          :   1 JUNE 2018
FILE NO/S:   CIV 838 of 2016
BETWEEN:   JENNA MCLOUGHLIN
Plaintiff
AND
JOHN HOLLAND PTY LTD
First Defendant
JOONDALUP HOSPITAL PTY LTD
Second Defendant
CENTIGRADE MECHANICAL CONTRACTING PTY LTD
Third Defendant

FILE NO/S: CIVO 9 of 2018
BETWEEN: JENNA MCLOUGHLIN
Applicant
AND
PHOENIKS PTY LTD
Respondent

Catchwords:

Applications for extension of time within which to commence proceedings for personal injuries arising by accident - Extension where plaintiff/applicant not aware of person to whom injury is attributable - Enquiry not made under s 39(3) of the Limitation Act 2005 (WA)

Legislation:

Limitation Act 2005 (WA)

Result:

Applications dismissed

Representation:

CIV 838 of 2016

Counsel:

Plaintiff	:	Mr G T Stubbs
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Mr J R Fielding

Solicitors:

Plaintiff	:	WA Legal Pty Ltd
First Defendant	:	Not applicable
Second Defendant	:	Not applicable
Third Defendant	:	Greenland Legal Pty Ltd

CIVO 9 of 2018

Counsel:

Applicant	:	Mr G T Stubbs
Respondent	:	Ms K R Wood

Solicitors:

Applicant	:	WA Legal Pty Ltd
Respondent	:	Moray & Agnew Lawyers

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

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Ghiassi v Industrial People Pty Ltd [2012] WADC 23

JUDGE GOETZE:

By these two applications, leave is sought to extend the time within which proceedings can be commenced against two alleged tortfeasors.

Background and facts

On 11 June 2013, Ms Jenna McLoughlin, the plaintiff in CIV 838 of 2016 and the applicant in CIVO 9 of 2018, was working at Joondalup Health Campus as a chef. As she entered a doorway between the kitchen and the race area, a metal cornice fell from the ceiling and struck her. As a result, she suffered injury.
Ms McLoughlin sought legal representation. On 27 March 2014, her lawyers first wrote to Joondalup Hospital Pty Ltd which operates the Health Campus. Her lawyers were informed that, at the relevant time, the Health Campus was being redeveloped. John Holland Pty Ltd was the project manager of that redevelopment. Accordingly, the Hospital and John Holland were each given notice of an intention to make a claim for compensation in respect of the injury suffered by Ms McLoughlin.
Correspondence subsequently passed between the parties, but progress in resolution of the claim was not only slow, it was also nearly non‑existent.
On 19 May 2015, Ms McLoughlin's lawyer wrote to the in‑house lawyer at John Holland in the following terms:
We are instructed that there were two workers attending to the cornice at around 10.50 am on 11 June 2013. Our client is unsure whether they were your clients, employees or contractors.
…
After the incident some unknown workers riveted the cornice back into place. One witness attests that the cornice was not riveted prior to the incident.
We hope this…

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: [2018] WADC 75
Decision Date: 1 JUNE 2018

CaseChat Overview and Summary

The case of McLoughlin v John Holland Pty Ltd involved an application for an extension of time in which to commence proceedings for personal injuries sustained by the plaintiff as a result of an accident. The plaintiff, McLoughlin, sought to extend the time limit under the Limitation Act 2005 (WA) due to a lack of awareness regarding the identity of the person responsible for the injury. The dispute centred on whether the plaintiff's unawareness of the responsible party justified an extension under section 39(3) of the Act. The matter was heard in the Supreme Court of Western Australia.

The court was tasked with determining whether the plaintiff's failure to identify the responsible party within the statutory period constituted a sufficient ground for an extension of time. The key legal issue was whether McLoughlin's lack of knowledge regarding the identity of the tortfeasor warranted an extension of time to commence proceedings. Additionally, the court needed to assess whether the plaintiff had made an appropriate enquiry as required by section 39(3) of the Limitation Act 2005 (WA).

The Supreme Court found that McLoughlin had not made an appropriate enquiry to ascertain the identity of the person responsible for the injury. Consequently, the court held that the plaintiff's unawareness of the responsible party did not justify an extension of time to commence proceedings. The court emphasised the importance of making reasonable efforts to identify the tortfeasor as a prerequisite for an extension under section 39(3) of the Limitation Act 2005 (WA). Therefore, the application for an extension of time was dismissed.

The final orders of the court confirmed the dismissal of the application for an extension of time. The plaintiff was deemed to have failed to satisfy the criteria for an extension under section 39(3) of the Limitation Act 2005 (WA) due to the lack of an appropriate enquiry into the identity of the tortfeasor.

Orders