Sessions v Phengsiaroun

[2008] ACTSC 132

JILL PAMELA SESSIONS v TA M PHENGSIAROUN
[2008] ACTSC 132 (28 November 2008)

LIMITATION OF ACTIONS – application to extend time to commence proceedings for personal injury – Limitation Act 1985, s 36 – motor car accident whilst driving to work – workers compensation claim – claim for damages for personal injury – proceedings not commenced due to oversight – no consent to extension of time – whether it is “just and reasonable” to grant the application – whether a fair trial is possible – relevance of possible cause of action against solicitors for delay – action taken by plaintiff to prosecute claim – reason for delay not satisfactory – prejudice to defendant / respondent – preservation of right of defendant to fair trial – no significant prejudice to defendant – justice favours granting of extension – application granted.

LIMITATION OF ACTIONS – whether the time for commencement of proceedings had been extended by reason of confirmation of the cause of action – Limitation Act 1985, s 32 – defendant’s insurer reimbursed employer’s workers compensation insurer – whether acknowledgment by defendant’s insurer of liability to pay damages to employer’s insurer is confirmation – right of employer to indemnity – whether s 183 of the Workers Compensation Act 1951 creates separate cause of action – s 32 satisfied – limitation not expired.

Limitation Act 1985 (ACT), ss 11, 32, 36
Workers Compensation Act 1951 (ACT), s 183
Civil Law (Wrongs) Act 2002 (ACT), s 61

Alcock v Casey [2007] ACTSC 87
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547
Noja v Civil and Civic Pty Ltd & Ors (1990) 93 ALR 224
Daroczy v B & J Engineering Pty Ltd (in liq)(1986) 67 ACTR 3
Hamilton v Madden [2007] ACTSC 89
Brozinic v PHC Operations Pty Ltd t/as Hyatt Hotel Canberra [2008] ACTSC 20

No. SC 248 of 2008

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              28 November 2008

IN THE SUPREME COURT OF THE       )
  )          No. SC 248 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

BETWEEN:JILL PAMELA SESSIONS

Applicant

AND:TA M PHENGSIAROUN

Respondent

ORDER

Judge:  Higgins CJ
Date:  28 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be granted.

1. The period within which the action may be brought be extended to 27 March 2008.

1. This is an application pursuant to s 36 of the Limitation Act 1985 (ACT) (Limitation Act) to extend the time within which the plaintiff may commence proceedings against the defendant for damages for personal injury. The primary time limit is imposed by s 11 of the Limitation Act. During the course of argument, a further question arose as to whether the time for commencement of proceedings had, in any event, been extended by reason of confirmation of the cause of action pursuant to s 32 of the Limitation Act.

The Facts

1. The facts relating to the application were not in dispute.

1. The plaintiff was involved in a motor vehicle accident…