Richardson v State of Western Australia
[2009] WADC 76
•25 MAY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: RICHARDSON -v- STATE OF WESTERN AUSTRALIA [2009] WADC 76
CORAM: SLEIGHT DCJ
HEARD: 20 MAY 2008
DELIVERED : 25 MAY 2009
FILE NO/S: CIVO 91 of 2008
BETWEEN: GAIL CATHERINE RICHARDSON
Plaintiff
AND
STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Negligence - Damages - Application for leave to bring action under s 6 of the Crown Suits Act 1947 - Requirements for the grant of leave - Delay occasioned by "other reasonable cause" - Prejudice - Discretion to grant leave - Whether just to grant leave - Not necessary for applicant seeking leave to demonstrate prima facie case - Claim must not be mala fide - Reasonable cause for delay established - Leave granted to bring proposed action
Legislation:
Crown Suits Act 1947
Limitation Legislation Amendment & Repeal Act 2005
Workers Compensation and Injury Management Act 1981
Result:
Leave granted
Representation:
Counsel:
Plaintiff: Mr D Bruns
Defendant: Ms B D Cizeika
Solicitors:
Plaintiff: Separovic & Associates
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Baker v Albany Shire Council (1994) 14 WAR 46
Blythe v State of Western Australia [2008] WASCA 10
Cairns v Minister for Education, unreported; FCt SCt of WA; Library No 970679; 21 November 1997
Leach v Melbourne & Metropolitan Tramways Board [1958] VR 398
Lewkowski v Bergalin Pty Ltd, unreported; WASCA; Library No 7675; 26 May 1989
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Posner v Roberts [1986] WAR 1
Quinlivan v Portland Harbour Trusts [1963] VR 25
Roman Catholic Bishop of Broome v Watson [2002] WASCA 7
Tucker v State of Western Australia [2006] WASCA 93
Victorian Railways Commissioners v Casaccio [1961] VR 157
SLEIGHT DCJ:
Nature of the application
The application in this matter is by originating summons seeking leave for the plaintiff to commence proceedings against the defendant for damages in respect of an alleged injury suffered by the plaintiff on 28 May 2003 when she tripped on a manhole cover situated on a brick‑paved footpath.
At the time of the accident the plaintiff was employed by the defendant as a teacher/administrator at the Belmont City College in Belmont. The proposed action is against her employer on the basis of failing to provide a safe system of work (although the precise terms of the proposed action were not defined by the filing of a draft statement of claim).
At the time that the originating summons was filed the plaintiff named the Minister for Education as the defendant, believing the Minister for Education was her employer. However, following material presented by the solicitors for the defendant, the plaintiff accepted that the employer was not the Minister for Education but the State of Western Australia. By consent, on 20 May 2009 I made an order that the State of Western Australia be substituted as the defendant in these proceedings [O18 r6(2) of the Rules of the Supreme Court].
The application for leave against the State of Western Australia is made pursuant to s 6 of the Crown Suits Act 1947. Section 6 of the Crown Suits Act 1947 has been repealed by virtue of s 8 of the Limitation Legislation Amendment and Repeal Act 2005 but remains applicable for causes of action prior to the section being repealed. The cause of action arose at the date of the accident, being 23 May 2003.
Prior to its repeal, s 6 of the Crown Suits Act 1947 relevantly provided as follows:
"6. Limitation of time for giving notice
(1)Subject to the provisions of subsections (2) and (3) of this section, no right of action lies against the Crown unless ‑
(a)the party proposing to take action gives to the Crown Solicitor, as soon as practicable or within three months (whichever of such periods is the longer), after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the party and his solicitor or agent; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued,
and for the purposes of this section where the act, neglect, or default on which the proposed action is based is a continuing one, no cause of action in respect of the act, neglect or default accrues until the act, neglect or default has ceased but the notice required by paragraph (a) of this subsection may be given and an action may thereafter be brought while the act, neglect or default continues.
…
(3)(a)Notwithstanding the foregoing provisions of this section application may be made to the Court having jurisdiction to hear the action when the application is granted for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) of this section has been given to the Crown.
(b)Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose.
(c)Before an application is made under the provisions of paragraph (a) of this subsection the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the Crown Solicitor, at least fourteen days before the application is made."
In this case the plaintiff has failed to give notice as required under s 6(1)(a) of the Act or commence an action before the expiry of one year from the date on which the cause of action accrued as required under s 6(1)(b) of the Act.
Requirements for leave
The requirements that the plaintiff needs to satisfy in order to obtain leave under s 6(3) of the Act can be summarised as follows:
1.The failure to give notice or the delay in bringing the action was occasioned by mistake.
2.Alternatively, the failure to give notice or the delay in bringing the action was occasioned by any other reasonable cause.
3.Alternatively, the prospective defendant is not materially prejudiced in its defence or otherwise by the failure or delay.
If one of the above conditions is satisfied then the Court has a discretion to grant leave, if it is just in the circumstances to do so (see Matheson v Commissioner of Main Roads (2001) 25 WAR 269 per Murray J at [47].
Evidence
(a) General
The evidence produced on this application was by affidavit sworn by the legal representatives of the respective parties. A decision in this matter is in the nature of an interlocutory decision (Tucker v State of Western Australia [2006] WASCA 93 at [18]). Much of the material contained in the affidavits was of a hearsay nature. Order 37 r 6(2)(a) provides that an affidavit used for the purposes of interlocutory proceedings may contain statements of information or belief. Preferably statements of information or belief in affidavits should follow the form "I have been informed by X and verily believe" (see Lewkowski v Bergalin Pty Ltd, unreported; WASCA; Library No 7675; 26 May 1989). This form is preferable, not because the Court requires ritualised behaviour, but because it clearly indicates the source of the information, states the information and states that the deponent believes that what X has said is true (see Blythe v State of Western Australia [2008] WASCA 10).
In Blythe's case (supra) at [43] the court stressed that if the form "I have been informed by X and verily believe", or something similar, is not followed, then there may be a tendency for the drafters of affidavits to drift into bad habits which will produce affidavits inadmissible under O 37 r 6.
One of the affidavits filed in support of the plaintiff's claim was an affidavit of Mr Tony Separovic, the solicitor acting for the plaintiff, sworn on 10 July 2008. This affidavit in par 3 states that:
"The contents of this affidavit are personally known to me and are true and correct to the best of my knowledge."
The affidavit then proceeds to state a number of factual matters which are quite clearly not within the knowledge of the deponent but apparently sourced by instructions from his client. It is only in par 5 of the affidavit that he indicates the source of the information is from his instructions.
In my opinion much of the contents of his affidavit are inadmissible but the defendant did not raise any objection to this affidavit material and was willing to argue the matter on its merits. Accordingly, I have proceeded on the basis the defendant has no objection to the contents of the affidavit being taken into account.
(b) Affidavit of Mr Separovic [filed by the plaintiff]
The affidavit of Mr Tony Separovic sworn 10 July 2008 [filed on behalf of the plaintiff] states as follows:
"4.The plaintiff first sought legal advice in relation to her claim when she saw me on 2 April 2008.
5.Instructions received were that the Plaintiff sustained injury to her neck, jaw and left and right arms on 28 May 2003.
6.A claim form was lodged in respect to the matter and attached hereto and marked 'TS‑1' is a copy of the workers' compensation Form 2B dated 3 July 2003.
7.The circumstances of the accident involved the Plaintiff tripping on a manhole cover situated on a brick‑paved footpath which manhole cover was raised approximately one inch above the path.
8.It is anticipated the medical evidence will put the Plaintiff over and above a 30% permanent disability to her body. In particular in addition to her physical injuries sustained to her neck; left and right arms she has also suffered a psychiatric sequel and sexual dysfunction.
9.The client has been in receipt of weekly payments of compensation and workers' compensation benefits from the time of the accident.
10.Following the accident she undertook part-time work up until October 2007 from which time she has been certified totally unfit for work. More recently she has been performing one day per week work at Fremantle District Hospital Education Department."
Annexure "TS‑1" referred to in par 6 above was a copy of a worker's compensation form dated 3 July 2003. In this form the plaintiff described what happened and what caused the occurrence in the following terms:
"Fell on brick paving – landed on hands and chin, then onto knees."
The next line of the form required her to identify what object/machine was involved and she wrote "Utilities access cover".
As to the location of the accident the form states "GROUNDS OF SCHOOL-OUTSIDE BT1" [although no evidence or explanation was presented to me, the reference to "BT1" is possibly a reference to a room number]. The form nominated a Marg Buckman as a witness to the occurrence. It further stated that the occurrence was reported to the principal John Masters.
The affidavit of Mr Separovic also stated that following receipt of instructions on 2 April 2008 a letter was issued to Risk Cover (whom I assume to be the insurers for the defendant) dated 4 April 2008. This letter effectively gave notice of an intention to claim by inquiring as to whether consent would be given to legal proceedings being issued without the need to issue an application seeking leave.
(c) Affidavit of Belinda Diane Cizeika [filed by the defendant]
The defendant filed an affidavit sworn by Belinda Diane Cizeika, solicitor, who deposed that on 30 September 2008 she instructed Carpenter Lawrence as assessors to commence the factual investigation into the accident. On 5 November 2008 she was contacted by a representative of Carpenter Lawrence, a Mr Norris, who informed her:
"8.1The alleged witness to the incident of 28 May 2003, Ms Margaret Buckman, did not witness the incident, and provided a statement to that effect;
8.2Ms Buckman assisted Mr Norris to locate the alleged location of the incident, however, there was no utilities cover in the area referred to by the Plaintiff as 'Outside BTI' pursuant to her Workers Compensation Claim Form 2B;
8.3Mr Norris located a utilities cover away from the alleged area of the incident, however, the utilities cover was of an even level to the ground surrounding it, and was in no way irregular or uneven to its surroundings;
8.4Mr John Masters, to whom the Plaintiff allegedly reported the incident on 28 May 2003, has no recollection of the incident, or the Plaintiff reporting the incident to him;
8.5Mr Norris requested Mr Trevor Hunter, the current Principal, enquire from former staff if there were any other witnesses to the incident;
8.6Mr Hunter's enquiries revealed that there is no other staff employed by the Defendant at Belmont City College who could recollect the Plaintiff sustaining an injury on or about 28 May 2003."
The affidavit also exhibited a letter (Exhibit "BDC1") from the plaintiff dated 30 January 2007 stating following legal advice she rejected a settlement.
(d) Affidavit of Kacy Tang Kok Kaar [filed by the plaintiff]
The plaintiff filed a further affidavit by Kacy Tang Kok Kaar, Articled Clerk, sworn on 30 December 2008. In that affidavit the deponent stated as follows:
"6.I crave leave to refer to the letter dated 30 January 2007 annexed as exhibit 'BDC1' to the said Affidavit. I am informed by the Plaintiff and verily believe as follows:‑
6.1That prior to 30 January 2007, the Plaintiff sought legal advise from M/s Slater & Gordon in relation to a settlement offer that was presented to her by Risk Cover, the workers compensation insurer;
6.2during the consultation M/s Slater & Gordon, the Plaintiff was given advice as to whether it was appropriate for her to accept the settlement offer or otherwise;
6.3as the Plaintiff's condition had yet to stabilise, she had decided against accepting the settlement offer;
6.4the consultation with M/s Slater & Gordon was free and was part of the benefits accorded to the Plaintiff as a member of the State School Teacher's Union of WA;
6.5the consultation with M/s Slater & Gordon was once‑off and the Plaintiff did not appoint them to act on her behalf in relation to her worker's compensation claim;
6.6the Plaintiff was not given any legal advice pertaining to her rights and obligations in relation to instituting a common law claim for damages at the District Court; and
6.7the Plaintiff had no knowledge of her rights and obligations in relation to instituting a common law claim for damages at the District Court until her initial consultation with Mr Separovic on 2 April 2008.
7.I crave leave to refer to paragraph 8 of the said Affidavit. I am informed by the Plaintiff and verily believe as follows:‑
7.1there were no members of the teaching staff who had witnessed the Plaintiff's accident;
7.2that immediately after the accident, the Plaintiff made her way back to an office located opposite her office;
7.3that she met Ms Margaret Buckman at the office in question and informed her about the accident;
7.4that on or about 11 June 2008, the Plaintiff had occasion to examine the utilities cover in question and the same remains raised approximately one inch above the brick‑paved footpath;
7.5that the utilities cover in question was approximately 3 to 5 metres away from BT1 and located on a brick-paved footpath;
7.6that the Plaintiff was walking on the brick‑paved footpath from the direction of BT1 towards the student services area; and
7.7that the Plaintiff had in fact reported the incident to Mr John Masters who in turn asked her to fill in the worker's compensation claim form.
8.I am instructed by the Plaintiff and verily believe that she did not notify the Defendant of her intention to institute legal proceedings prior to 2008 as she was not aware of her rights in relation to instituting a claim for damages at the District Court or her obligations under Section 47A of the Limitation Act 1935."
Other reasonable cause
The plaintiff's case is that the failure to give notice and the delay in bringing the action were occasioned by reasonable cause. The meaning of "other reasonable cause", was set out by Sholl J in Quinlivan v Portland Harbour Trusts [1963] VR 25 at 28,as follows:
"A cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of which might be expected to delay the giving of notice by a reasonable man."
Ignorance of the statutory requirements alone will not constitute reasonable cause: Leach v Melbourne & Metropolitan Tramways Board [1958] VR 398; Posner v Roberts [1986] WAR 1 at 5. However, ignorance of the requirements may in all the circumstances constitute "reasonable cause" for relevant purposes (see Posner v Roberts supra at p 5). In the case of Posner v Roberts, Master Staples held that reasonable cause existed taking into account the ignorance of the plaintiff in the circumstances that he was an apprentice jockey aged 20 at the time of the incident, the fact that his employer knew of the accident immediately it happened and was paying him workers compensation, his belief that his injuries were less serious than they actually were and that he would in time be able to resume riding, his belief that he would not suffer financially and finally that he was unaware of the statutory requirements.
In this case I am satisfied there was reasonable cause based upon the following:
1.The plaintiff was not given any legal advice pertaining to her rights and obligations in relation to instituting a common law claim for damages and was not aware of such rights until she consulted the plaintiff's solicitors on 2 April 2008 and then a notice of claim was almost immediately sent to Risk Cover dated 4 April 2008.
2.Further, the employer knew of the accident as a result of the claim form. Given that the details of the accident gave information that the plaintiff had tripped and that it involved a utilities access cover in the grounds of the school and that the plaintiff suffered injury, the employer ought to have been aware of a potential claim even though at that stage no common law notice had been given.
3.Further, the plaintiff has been in receipt of workers compensation since the accident and therefore her immediate needs for compensation were being satisfied. Accordingly, she had immediate need to investigate her entitlement for common law damages.
Taking into account all of these factors I am satisfied the plaintiff has established reasonable cause for her failure to give notice and her delay in commencing proceedings.
No material prejudice
The alternative ground advanced by the plaintiff was that the defendant had not suffered any material prejudice.
The relevant time for considering the issue of prejudice is the period between the date of cause of action arising and the date of the application for leave to bring the action (Cairns v Minister for Education, unreported; FCt SCt of WA; Library No 970679; 21 November 1997). The defendant bears an evidentiary onus which it must discharge as to material prejudice, but if it does so, the ultimate onus to show the absence of material prejudice rests upon the plaintiff (Baker v Albany Shire Council (1994) 14 WAR 46).
In my opinion it is quite clear that the defendant will suffer prejudice as a result of the delay. As a result of the failure of the plaintiff to give notice of an intention to make a common law claim within three months, the defendant has lost the opportunity to carry out investigations of the site of the alleged incident and obtain photographic evidence of the unevenness of the ground reasonably contemporaneously with the incident. Further, I believe the defendant has been prejudiced in that it has not had the opportunity to make timely inquiries as to whether there were independent witnesses to the incident (albeit that the plaintiff says there were not) and possibly thereby lost an opportunity to present evidence contradicting the plaintiff's version of how the accident occurred.
Accordingly, I find that the defendant has suffered prejudice and the plaintiff has not satisfied me that this is not material prejudice.
Discretion
Even if the Court is satisfied that the delay was occasioned by other reasonable cause, the Court is only to grant leave if it "thinks it is just to do so".
In Matheson v Commissioner of Main Roads (2001) 25 WAR 269 at p 282, Murray J stated as follows in relation to the discretionary issue as to the justice of the case:
"In considering that question, matters bearing upon the establishment of the statutory preconditions will continue to be relevant. For example, the question of material prejudice to the prospective defendant will continue to have a bearing upon the question whether or not the discretion should be exercised in favour of the prospective plaintiff: see Bingham per Kennedy J (at 232). In addition such matters as the strength of the cause of the action and the question whether the prospective plaintiff would be materially prejudiced by an incapacity to pursue it will continue to be relevant."
In the decision of Victorian Railways Commissioners v Casaccio [1961] VR 157 at p 160 the court stated as follows in relation to an application for leave to commence an application against a public authority out of time:
"It is not essential for the applicant under section 34(4) to show a prima facie case of liability. In other words, the fact that he does not do so does not mean that it must be held to be unjust to give the leave sought. It may be a material consideration that such proof appears, and a sufficient ground for holding it that it is just to grant leave, and that was all that Sholl J said in Akermanis's case supra at page 116. On the other hand, it may be quite enough if it appears that the claim is not mala fide, not merely speculative or absurd. All that the applicant seeks is leave to institute proceedings, with all the risks that attend the suit of any plaintiff. It is no doubt true that the reference in the subsection to the 'justice' of an order gives the court a power which it has not got in the case of an ordinary writ, to refuse leave if the action is example a 'try on' to use a popular phrase. But the view that every applicant must prove a prima facie case of liability is misconceived and would impose an altogether unreasonable burden on applicants. It might in some cases involve a very length and difficult task."
In my opinion the applicant's claim is not a "try on", and is certainly not prompted by mala fide. In accordance with the above authorities I take into account the prejudice to the defendant I have earlier identified. Of course it is also true that because of the delay the plaintiff will have difficulties in proving her case. If the plaintiff is able to establish that she tripped over a manhole protruding by approximately one inch as claimed then I conclude she has some prospect of success: Roman Catholic Bishop of Broome v Watson [2002] WASCA 7.
In accordance with authorities, I also take into account the extent of the plaintiff's injuries and the possibility that the plaintiff will be prejudiced by an incapacity to pursue her claim as a result of the limitation period.
The only medical evidence produced was an annexure to the affidavit of Mr Tony Separovic. This was a report of Mr Peter Watson, a neurosurgeon, dated 24 June 2008. In this report Mr Watson concluded as follows:
"13.In my opinion your client does have a disability of the cervical spine pursuant to Item 36(b) of the Second Schedule of the Worker's Compensation and Rehabilitation Act, 1981.
a.With respect to your client's disability of the cervical spine, I am of the opinion she will have a permanent disability of 20% (twenty percent) affecting the cervical spine and pursuant to Item 36(b) of the Second Schedule of the Worker's Compensation and Rehabilitation Act, 1981.
b.Your client does not have a disability affecting her left arm.
c.Your client has very mild weakness of the right arm. I would be of the opinion that this is 5% (five percent) disability of the right arm pursuant to Item 13.
14.A future deterioration in your client's condition is possible given degenerative processes and this would necessitate the abovementioned surgery and the associated costs. I would be of the opinion the likelihood of your client requiring surgery in the next five to ten years is in the order of 50%.
15.My prognosis for Ms Richardson is that she will likely have ongoing symptoms affecting her neck and predominantly the right arm. This will result in her needing to be employed in an administrative position, possibly part-time and the possibility of surgery being carried out in the next ten years.
16.In my opinion your client's current symptoms have stabilised sufficiently to allow her to proceed towards settlement of the claim given the possible future treatments that will be required, outlined in the report above."
The plaintiff has been on workers compensation since the accident. This, together with the above medical report, is suggestive of a loss of earning capacity which will lead to a financial loss once workers compensation payments reach the statutory maximum and expire. The plaintiff will ultimately have to satisfy the requirements of the Workers Compensation and Injury Management Act 1981 as to the relevant percentage of disability and procedures before a damages award can be made but in my opinion such factors should not at this stage be preventive of the plaintiff obtaining leave under the Crown Suits Act1947.
Taking all these factors into account I conclude that it is just to allow the plaintiff the opportunity to make her claim. Accordingly, I grant leave for her to commence proceedings against the defendant at any time within six years from 28 May 2003 for damages in respect of an injury suffered on 28 May 2003.
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