Robert Rajic v Brighton Ceiling Pty Limited - [2009] ACTSC 68

ROBERT RAJIC v BRIGHTON CEILING PTY LIMITED
[2009] ACTSC 68 (19 June 2009)

LIMITATION OF ACTIONS – personal injury – claim against employer – workers’ compensation claim previously accepted – action commenced eight weeks out of time – explanation for delay unsatisfactory – no significant prejudice to defendant – justice favours grant of extension – extension granted

Civil Law (Wrongs) Act 2002, ch 5
Limitation Act 1936, s 36

Sessions v Phengsiaroun [2008] ACTSC 132
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Hamilton v Madden [2007] ACTSC 89
Brozinic v PHC Operations Pty Limited trading as Hyatt Hotel Canberra [2008] ACTSC 20

No. SC 699 of 2008

Judge: Master Harper
Supreme Court of the ACT

Date: 19 June 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 699 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:ROBERT RAJIC
Plaintiff

AND:BRIGHTON CEILING PTY LIMITED
Defendant

ORDER

Judge:  Master Harper
Date:  19 June 2009
Place:  Canberra

THE COURT ORDERS THAT:

The period within which this action may be brought be extended to 27 August 2008.

The plaintiff pay the costs of the application.

Those costs not be recoverable until final orders are made in the action.

This is an application to extend the limitation period in an action for damages for personal injury by an employee against an employer.

The plaintiff’s claim is that he suffered a work injury on 1 July 2005. He made a claim for workers’ compensation with the employer’s insurer. The insurer had instructed the solicitors presently acting for the defendant by 13 September 2005, on which date the solicitors instructed a firm of investigators to conduct a factual investigation in respect of the plaintiff’s employment and the circumstances of the injury. Whilst the solicitors did not specifically ask for advice as to the likelihood of a claim for damages being brought, or the prospects of such a claim succeeding, the investigators reported on 4 October 2005 at length, and included comments as to common law potential in their report. They had interviewed potential witnesses and included statements with their report.

The investigators provided a supplementary report on 20 October 2005, and a further report on 22 November 2005.

On 27 October 2005 a firm of solicitors initially instructed by the plaintiff served a notice of intention to claim damages pursuant to chapter 5 of the Civil Law (Wrongs) Act 2002.

The solicitors now acting for the plaintiff were instructed in January 2006. The partner in the firm having the conduct of the matter frankly admits that he omitted to note the date of expiry of the limitation period (1 July 2008) as he would normally have done, and that he overlooked the necessity to commence proceedings by that date.

I am satisfied that he omitted to inform the plaintiff of the existence and significance of the limitation period, and that the plaintiff was personally unaware of it until it had expired. Proceedings were commenced by originating claim on…

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.

Continue reading Robert Rajic v Brighton Ceiling Pty Limited

Details

AGLC: Robert Rajic v Brighton Ceiling Pty Limited [2009] ACTSC 68
Case: [2009] ACTSC 68
Decision Date: 19 June 2009

CaseChat Overview and Summary

In the matter of Robert Rajic versus Brighton Ceiling Pty Limited, the dispute arose in the Supreme Court of Queensland. Mr Rajic, a former employee of Brighton Ceiling Pty Limited, claimed personal injury damages against his employer following an incident at work. The crux of the case was whether the court should extend the limitation period for Mr Rajic to commence legal action, given that he had commenced the proceedings eight weeks beyond the statutory time limit. Prior to this incident, Mr Rajic had already made a successful workers' compensation claim.

The legal issues the court had to address were whether the delay in commencing the action was justifiable and whether there was any prejudice to the defendant, Brighton Ceiling Pty Limited, by the delay. The court needed to consider the principles of limitation of actions and whether any extension of time would be just and equitable under the circumstances.

The court examined the reasons provided by Mr Rajic for the delay and found them unsatisfactory. However, it also considered the lack of significant prejudice to the defendant and the principle of justice favouring the grant of an extension. Given that Mr Rajic had already successfully pursued a workers' compensation claim, the court found that the delay did not substantially prejudice the defendant. Consequently, the court decided that justice required the extension of time. The court thus granted the extension, allowing the action to proceed, with the plaintiff to pay the costs of the application. These costs were to be non-recoverable until final orders were made in the action.

Orders

Orders of the court

1. The period within which this action may be brought be extended to 27 August 2008.

2. The plaintiff pay the costs of the application.

3. Those costs not be recoverable until final orders are made in the action.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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