Mohamad Alameddine v Nizar Alameddine t/as on Call Tree Services and Gardening Maintenance

[2017] NSWSC 938

Supreme Court

New South Wales

Medium Neutral Citation:	Mohamad Alameddine v Nizar Alameddine t/as On Call Tree Services and Gardening Maintenance [2017] NSWSC 938
Hearing dates:	7 July 2017
Date of orders:	07 July 2017
Decision date:	07 July 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Adjournment granted with costs
Catchwords:	LIMITATION PERIOD – workplace injury – below the knee amputations – leave to commence against insurer – consideration of s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where defendant undischarged bankrupt – where question as to expiry of limitation period – where question as to date of discoverability – adjournment granted for plaintiff to gather evidence on limitation period
Legislation Cited:	Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW)
Category:	Procedural and other rulings
Parties:	Mohamad Alameddine (Applicant) Nizar Alameddine t/as On Call Tree Services and Gardening Maintenance (Defendant) Great Lakes Insurance SE t/as Great Lakes Australia (Respondent to the motion)
Representation:	Counsel: Mr B D Dooley SC with Mr J L Lee (Applicant) Mr J E Sexton SC (Respondent)   Solicitors: Monaco Solicitors (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2015/00283715
Publication restriction:	Nil

Judgment – extempore (revised)

1. This application started life as an application under s 6 Law Reform (Miscellaneous Provisions) Act1946 (NSW). That section having been repealed on 1 June 2017, it now proceeds by way of an amended motion filed in court today as an application for leave to commence proceedings against an insurer under s 5 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

2. The plaintiff's claim arises out of very serious injuries consisting of the below the knee amputation of each leg that he suffered at work on 4 March 2011. At that time he was performing work, I will say for neutrality's sake, with the defendant, his cousin, lopping trees and chipping or mulching the produce of that activity. His case is that in the temporary absence of his cousin, who was an experienced wood chipper, the plaintiff was performing that work. When a log jammed he attempted to clear it by pushing the log through the chipping machine with his foot. His trouser leg became caught in the moving parts of the machinery and his legs were drawn into contact with the cutting components of the chipper.

3. The proceedings against the cousin, who is now an undischarged bankrupt, were commenced in this Court in September 2015, that is to say, more than four years after the date of the accident. Section 50C Limitation Act 1969 (NSW) establishes a limitation period of three years from the date on which the cause of action is discoverable by the plaintiff. "Discoverable" is defined, or given content, by s 50D.

4. Mr Sexton of Senior Counsel who appears for the insurer today has indicated that the issue going to whether leave to join the insurer should be granted is whether the plaintiff's cause of action has expired. That is significant because s 6 of the new legislation expresses what was implied in repealed legislation that the claim against the insurer must be brought within the limitation period referable to the insured. Time ceases to run when proceedings against the insured are commenced.

5. In opening his case, Mr Sexton has indicated that the insurer's argument is that the severity of the injuries and the circumstances in which they occurred are so very clear that there can be no serious question in this case that the plaintiff knew or ought to have known each of the facts described in s 50D(1)(a)-(c) within a very short time after the receipt of his very serious injuries.

6. There may be other issues, of course, of which I am unaware, which brings me to the plaintiff's application for an adjournment. Mr Dooley of Senior Counsel, who appears with Mr Lee of Counsel, for the plaintiff, has very frankly informed me that he had misapprehended the true issue in the case. It was clear in correspondence that had passed between the solicitors that there is an issue about whether the plaintiff's claim against the defendant is excluded from the cover provided by the insurance policy by operation of what I will simply refer to as the “employee exclusion”. It was Mr Dooley's appreciation of the case that that was the issue that had to be dealt with today.

7. I interpolate that from the transcript of proceedings before the Registrar on 20 April 2017, when the matter was set down for hearing today, it is very clear, with respect, from what Ms Martin, the solicitor for the insurer said to the Registrar, that there was a limitation defence to be agitated today in addition to the usual issues regarding leave under the repealed s 6. Counsel did not have access to that transcript and only became aware of the true issue, I infer, from discussions between Senior Counsel yesterday.

8. The evidence that was read before me today includes affidavit evidence from the plaintiff's current solicitor and from the plaintiff. It is fair to say that those affidavits do not address in any way what is now the real issue and Mr Dooley has applied for an adjournment in order that evidence, I will simply say, of the usual type in cases involving limitation questions, can be prepared and put on in support of the application for leave to proceed against the insurer.

9. In all these circumstances Mr Sexton very properly, if I may say so, does not object to the adjournment but says, of course, in the circumstances it should be on the usual terms which Mr Dooley, again very properly, concedes he cannot resist. In the circumstances, I propose to grant the adjournment, but order the plaintiff to pay the insurer's costs thrown away by reason of it.

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Decision last updated: 14 July 2017