Morse v Diagnostic Services Pty Ltd - [2001] TASSC 44

[2001] TASSC 44

CITATION: Morse v Diagnostic Services Pty Ltd [2001] TASSC 44

PARTIES:  MORSE, Pamela
  v
  DIAGNOSTIC SERVICES PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  23/2000
DELIVERED ON:  12 April 2001
DELIVERED AT:  Hobart
HEARING DATE:  15 December 2000 and 11 April 2001
JUDGMENT OF:  Master Holt

CATCHWORDS:

Limitation of Actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.

Workers Rehabilitation and Compensation Act1988 (Tas), s135.
Palmdale Insurance Co (In Liquidation) v L Grollo & Co Pty Ltd & Ors [1986] VR 408; Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Sophron v The Nominal Defendant (1957) 96 CLR 469; Knight v Smith [1975] Tas SR 83; Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23; Glover v Southern Cross Homes (Tasmania) Inc 111/1997 and Adams v Ascot Iron Foundry (1968) 72 SR(NSW) 120, referred to.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  B R McTaggart
             Respondent:  P W Tree
Solicitors:
             Appellant:  Jennings Elliott
             Respondent:  C N Dockray

Judgment Number: [2001] TASSC 44
Number of paragraphs: 22

Serial No 44/2001
File No 23/2000

PAMELA MORSE v DIAGNOSTIC SERVICES PTY LTD

REASONS FOR JUDGMENT MASTER HOLT

12 April 2001

The application

By writ filed 14 January 2000, the plaintiff commenced proceedings against her former employer claiming damages for personal injuries suffered by her in the course of her employment "on and from the 14^th day of January 1994". The plaintiff received workers compensation payments under the Workers Rehabilitation and Compensation Act 1988 ("the Act"). Pursuant to the Act, s135, the limitation period for the commencement of the action was accordingly three years from the date of the injury, subject to the power of the court to extend the time for a further period not exceeding three years. By application filed 5 May 2000 and served on the defendant employer, the plaintiff has applied for an extension of time for the commencement of proceedings to the date of the issue of the writ. The discretion to grant an extension of time under the Act is to be exercised in the same way as the discretion under the Limitation Act 1974, s5(3), is to be exercised, namely in accordance with the justice of the case, Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996.

The plaintiff's claim

In support of the application, several affidavits were read into evidence including two affidavits sworn by the plaintiff. The plaintiff was cross-examined. Her account of events giving rise to her claim is as follows. In August 1990 she commenced employment with the defendant as a cyto-technician. In about November 1993, the defendant introduced corral-style work stations for each cyto-technician. Each work station…

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: [2001] TASSC 44
Decision Date: 12 April 2001

CaseChat Overview and Summary

Pamela Morse brought an action against her former employer, Diagnostic Services Pty Ltd, claiming damages for personal injuries she suffered while employed as a cyto-technician. The limitation period for the commencement of such an action is three years from the date of the injury, but the Workers Rehabilitation and Compensation Act 1988 allows the court to extend this period by up to a further three years. Morse filed an application for an extension of time to bring her claim, seeking to extend the limitation period to the date of issue of the writ. The primary legal issue was whether the court should grant Morse's application for an extension of time, considering the explanation for delay and whether such delay would prejudice the defendant. The court found that Morse had a viable case, as she presented evidence that her injuries were caused by prolonged awkward postures due to the layout of her workstation. Although Morse was at fault for the delay in bringing the action, the court determined that the lack of prejudice to the defendant outweighed this fault, and granted the application for an extension of time. The court ordered that the limitation period for Morse to commence an action against Diagnostic Services Pty Ltd would be extended to the date of issue of the writ, 14 January 2000.

Orders