Shortland Electricity v O'Connor

[1999] NSWCA 87

CITATION:	SHORTLAND ELECTRICITY v O'CONNOR & ORS [1999] NSWCA 87
FILE NUMBER(S):	CA 40808/97
HEARING DATE(S):	30 March 1999
JUDGMENT DATE:	30 March 1999
PARTIES :	Shortland Electricity - A Sharon O'Connor bhnf Brenda O'Connor - R1 Australian Telecommunications Commission - R2 Port Stephens Shire Council - R3 Hunter Water Corporation Ltd - R4
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 15; Fitzgerald JA at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	11630/87
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ

COUNSEL:	M Ward - A L King SC/P A Regattieri - R1 R2, R3, R4 - N/A
SOLICITORS:	McLachlan Chilton - A Jones Staff & Co - R1 Australian Government Solicitor - R2 Dexter Healey - R3 Moray & Agnew - R4
CATCHWORDS:	PRACTICE & PROCEDURE - AMENDED STATEMENT OF CLAIM - ADDITION OF DEFENDANTS - WHETHER OUT OF TIME - OPERATION OF S52 OF LIMITATION ACT 1969 - POSTPONEMENT OF BAR DUE TO DISABILITY
ACTS CITED:	Limitation Act 1969 (NSW)
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40808/97
DC 11630/87

SHELLER JA
BEAZLEY JA
FITZGERALD JA

Tuesday, 30 March 1999

SHORTLAND ELECTRICITY v O’CONNOR

JUDGMENT

1 SHELLER JA: This is an appeal by leave from a decision of her Honour Sidis J of 28 October 1997. The plaintiff, Sharon O'Connor, who sued by her next friend, was born on 15 October 1972. When she was fourteen, on 15 November 1986 she was injured by reason, she alleged, of the negligence of various defendants when she fell on a footpath at Nelson Bay.
2 At the date of her injury, under the Limitation Act 1969 in its then form, the limitation period for her cause of action expired six years from the date it first accrued. On 15 May 1987 she began proceedings against Australian Telecommunications Commission. On 20 March 1992 she amended her statement of claim to add another defendant, the Port Stephens Shire Council.
3 On 11 October 1996 she further amended her statement of claim to add two defendants, the appellant, Shortland Electricity, and the Hunter Water Corporation.
4 The appellant filed a defence and then subsequently made an application by notice of motion to amend the notice of grounds of defence, or, alternatively, for the statement of claim to be dismissed in accordance with Part 26 of the Rules on the basis that such proceedings had not been commenced within the time required under s52 of the Limitation Act as amended. It was that application which Sidis DCJ was dealing with. Her Honour dismissed it and this appeal is brought from that dismissal.
5 So far as material to this appeal, the Limitation Act provided as follows:
“18A (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to:

(a) a cause of action arising under the Compensation to Relatives Act 1897; or
(b) a cause of action that accrued before 1 September 1990.
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

6 Until she attained the age of eighteen on 15 October 1990, the plaintiff was under a disability for the purposes of the Limitation Act (see s11(3)). The consequences of that disability are dealt with by s52 of the Act. Relevantly, s52(1) provided:
“…… where:

(a) a person has a cause of action;
(b) the limitation period fixed by this Act for the cause of action has commenced to run; and
(c) the person is under a disability,
in that case:
(d) the running of the limitation period is suspended for the duration of the disability; and
(e) if, but for this paragraph, the limitation period would expire before the lapse of three years after:
(i) the date on which he last (before the expiration of the limitation period) ceases to be under a disability; or
(ii) the date of his death;
(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates.”

7 Shortland Electricity, the applicant, submitted before Sidis DCJ that the effect of para (e) was that the period of limitation expired on 15 October 1993, that is to say, three years after the plaintiff turned eighteen.
8 While her Honour stated that she had difficulty in understanding the meaning of para (e) and refused to embark upon any interpretation of it, she rejected Shortland Electricity's arguments for the following reasons. First, that the legislative purpose as revealed in s6 (1) (a) and s18A to preserve the six year limitation period in respect of causes of action accruing before 1 September 1990. Second, that s52 (1) (d) suspends the running of the limitation period for the duration of disability. Her Honour saw the consequences of the defendant's argument as not suspending the limitation during the period of disability. Her Honour thought it clear that the Act was intended to protect those under disability to ensure that the disabled were subject to no greater disadvantage by the imposition of the limitation period than others were. Further, her Honour was of the view that rights accrued before 1 September 1990 were preserved.
9 On this appeal, the appellant submitted that the construction of s52 (1) required that subpara (d) and subpara (e) be read together. It was submitted that as a matter of statutory interpretation subpara (e) had to be considered in what was described as all situations. It was submitted that to contend otherwise would not give effect to the presence of the word "and" at the end of sub para (d).
10 Mr Ward, who appeared for the appellant, developed those submissions in oral argument.
11 With the greatest respect to the submissions that have been put, both in writing and orally, I do not myself think that subpara (e), properly understood, presents any great problem of understanding. The application of subpara (e) is conditioned as follows: “if, but for this paragraph, the limitation period would expire before the lapse of three years after, relevantly, the date on which she, before the expiration of the limitation period, ceased to be under a disability”.
12 Quite plainly, in the present case that condition is not satisfied unless one reads subpara (d), the suspension paragraph, altogether out of the Act. It seems to me plain enough that in the case of this plaintiff the effect of s 52 (1) (e) was to suspend the running of the six year limitation period, to the benefit of which she was entitled, for the duration of the disability, that is until she attained eighteen years of age. If that be right, it cannot be said that the condition of subpara (e) has been satisfied.
13 Questions are then raised as to how subpara (e) operates or what purpose is served by it. I have no great difficulty with that. It seems plainly to apply to the case where there have been periods of intermittent disability which lead to a situation that the date on which the plaintiff last ceased to be under a disability within the period of limitation is a date only shortly before the expiry of the limitation period. That may occur from time to time occur where the disability is due, for example, to disease. In that case, the plaintiff is given the benefit of a maximum of three years from the last occasion on which the disability ceased within the limitation period within which to bring an action. In my view, that is plain enough. In my view, subpara (e) has no application to this case.
14 Accordingly, in my opinion her Honour was correct to dismiss the application. The appeal should be dismissed with costs.
15 BEAZLEY JA: I agree.
16 FITZGERALD JA: I agree.
17 SHELLER JA: The order of the Court is that the appeal is dismissed with costs.

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