Robertson v Carna

[2014] WADC 95

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   ROBERTSON -v- CARNA [2014] WADC 95

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   22 JULY 2014 (ON THE PAPERS)

DELIVERED          :   23 JULY 2014

FILE NO/S:   CIV 85 of 2014

BETWEEN:   EARL MARTIN ROBERTSON

Plaintiff

AND

ANTHONY RALPH CARNA
Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Limitation point - Turns on its own facts

Legislation:

Limitation Act 2005

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Not applicable

Defendant:     Not applicable

Solicitors:

Plaintiff:     Corser & Corser

Defendant:     DLA Piper

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

Nil

1. DEPUTY REGISTRAR HEWITT:  In this matter the plaintiff sues for damages for personal injury said to have been caused by an electric shock which he received on 15 June 2011 while a resident in a premises of which he was the lessee and the defendant the lessor.

2. The gist of the action is that the premises was not fitted with residual current devices as required by law, had those devices been fitted he would have been protected from the electric shock, and as a consequence of the shock he has received injuries.

3. The defendant has applied to strike out the action. The basis of that application being that the action was commenced out of time and offends the provisions of s 14 of the Limitation Act 2005. That Act provides in div 3 s 14(1) as follows:

   An action relating to personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued.

4. Section 55(1) of the Act provides:

   A cause of action for damages relating to a personal injury to a person accrues when the only or earlier of such of the following events occurs –

   (a)the person becomes aware that he or she has sustained a not insignificant personal injury;

   (b)the first clinical symptom, chemical sign or other manifestation of personal injury consistent with a person having sustained a not insignificant personal injury.

5. Putting those two sections together the cause of action in the present case accrued when the plaintiff became aware he had sustained a not insignificant personal injury.  That requires an examination of the facts before me.  Unfortunately I have no facts to guide me.  All I know are the facts pleaded in the statement of claim.  Many of the injuries pleaded would take some time to manifest themselves.  The question I have to decide is whether there are materials before me to establish that on 15 June 2011 the plaintiff did or should have been aware of the fact that he had suffered a not insignificant personal injury.

6. On the facts available to me I cannot draw that conclusion to the necessary standard of persuasion and I therefore cannot conclude that the cause of action accrued on 15 June 2011 and the writ was issued out of time.

7. The defendant's application is therefore dismissed.  I order the costs of the application be the plaintiff's in any event.