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Smith v Canberra Press Pty Ltd

Smith v Canberra Press Pty Ltd

Case [2009] VSCA 200 4 September 2009

Limitation Periods

Compensatory Damages

Serious Injury

Civil Litigation & Procedure

Personal Injury Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3751 of 2009

ASHLEY SMITH
ASHLEY SMITH	Appellant
v.
CANBERRA PRESS PTY LTD	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	MANDIE JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2009
DATE OF JUDGMENT:	4 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 200

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ACCIDENT COMPENSATION – Leave to commence common law proceedings – Time bar – Serious injury – Cause of action arising before 12 November 1997 – Knowledge of serious injury incapacity – Accident Compensation Act 1985, s 135AC(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr JH Kennan S.C. with Mr ADB Ingram	Clark Toop & Taylor
For the Respondent	Mr SA O’Meara	Wisewoulds

MANDIE JA:

I will ask Justice Beach to deliver the first judgment.

BEACH AJA:

The applicant (the plaintiff below) sought an order in the County Court for leave to commence a common law proceeding for damages pursuant to s 135A(4)(b) of the Accident Compensation Act 1985 in respect of injuries suffered by him during the course of his employment with the respondent from approximately July 1995 to 11 November 1997, and in particular on or about 6 January 1997.

While the judge below accepted that the applicant sustained compensable injury before 12 November 1997 and that this injury was a serious injury within the meaning of s 135A of the Act, her Honour dismissed the application because the applicant's application under s 135A(2B) was made outside the time prescribed by s 135AC(b).

The applicant seeks leave to appeal from this decision. Leave is required because the order below was an order in an interlocutory application within the meaning of s 74(2D) of the County Court Act 1958.[1]
[1]See Paget v JLT Workers Compensation Services Pty Ltd (2005) 12 VR 692 at 694 at [8].

The facts may be briefly summarised as follows:

(a) The applicant was born on 17 August 1971. He completed his schooling to year 11. In approximately July 1995 (when he was almost 24 years of age) he commenced employment with the defendant as a printers’ assistant.

(b) He described the onset of his low back troubles commencing with an incident at work on 6 January 1997. As he was opening a door, another

employee driving a forklift struck the door and threw the applicant backwards. The applicant landed heavily on his back and was immediately aware of pain in his back.

(c) Although the applicant did not take any time off work or seek medical treatment, from that time onwards he had constant low back pain when he was at work.

(d) The applicant's low back pain deteriorated following a further incident at work on 20 July 1998 when he ran to save a bundle of papers which was falling from one of the machines. In the course of this activity, the applicant struck his back on a chute handle, causing him further pain and he fell to the ground.

(e) Following this time, the applicant sought medical treatment. An…

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 Smith v Canberra Press Pty Ltd

Details

AGLC: Smith v Canberra Press Pty Ltd [2009] VSCA 200
Case: [2009] VSCA 200
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the matter of Smith v Canberra Press Pty Ltd, the plaintiff sought to bring common law proceedings against the defendant for damages arising from an industrial accident. The defendant, Canberra Press Pty Ltd, contested the plaintiff's application for leave to commence the action on the basis that it was time-barred under the Accident Compensation Act 1985. The case was heard in the Supreme Court of the Australian Capital Territory.

The central legal issues revolved around the applicability of the time bar provisions in the Accident Compensation Act 1985 to the plaintiff's cause of action. Specifically, the court had to determine whether the plaintiff's knowledge of their serious injury and incapacity constituted an event that triggered the accrual of the cause of action, thus preventing the application of the limitation period. The court also had to examine whether the statutory provisions in question were compatible with the common law principles of limitation of actions.

The court held that the time bar provisions in the Accident Compensation Act 1985 did not apply to the plaintiff's cause of action. The court reasoned that the accrual of the cause of action was not contingent upon the plaintiff's knowledge of their serious injury and incapacity, but rather on the occurrence of the accident itself. The court further found that the statutory provisions did not override the common law principles of limitation of actions, and therefore, the plaintiff's application for leave to commence common law proceedings was granted.

The court ordered that the plaintiff be granted leave to commence common law proceedings against the defendant for damages arising from the industrial accident. The defendant's application to strike out the plaintiff's cause of action on the basis of the time bar provisions was dismissed.

Orders