Tanong Chitasing v Lennock Phillip Pty Ltd - [2011] ACTSC 57

TANONG CHITASING v LENNOCK PHILLIP PTY LTD
[2011] ACTSC 57 (8 April 2011)

LIMITATION OF ACTIONS – action for damages for personal injury – work injury - explanation for delay – length of delay – whether actual prejudice to defendant – whether fair trial possible – balance of interests favours applicant – extension granted

Limitation Act 1985 (ACT), ss 16A, 36
Court Procedures Rules 2006 (ACT), r 39

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Sessions v Phengsiaroun [2008] ACTSC 132
Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3

No. SC 475 of 2010

Judge: Master Harper
Supreme Court of the ACT

Date: 8 April 2011

IN THE SUPREME COURT OF THE )
) No. SC 475 of 2010
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:TANONG CHITASING
Plaintiff

AND:LENNOCK PHILLIP PTY LTD
Defendant

ORDER

Judge:  Master Harper
Date:  8 April 2011
Place:  Canberra

THE COURT ORDERS THAT:

the period within which an action on the plaintiff’s cause of action against the defendant may be brought be extended to a period ending on 21 April 2011.

the proceeding continue as if started by originating claim.

the plaintiff file and serve a statement of claim by 21 April 2011.

the plaintiff pay the costs of the application of GIO Insurance Ltd.

costs of the application are not recoverable until final orders are made in the action.

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

The application has been made prior to the commencement of an action for damages for personal injury. Counsel for the applicant provided me on the hearing of the application with a draft statement of claim. In that document, the plaintiff asserts that at 2:30 pm on 10 May 2006 he was injured in the course of his employment as a mechanic with the defendant. He was fitting a steel bullbar to a vehicle. This involved drilling holes in the chassis of the vehicle. The plaintiff says that the electric drill provided to him for that purpose was unsuitable. The drill jammed causing jarring and trauma to the plaintiff’s arms and shoulders.

A second count alleges that between 2006 and 19 January 2009, the plaintiff was required by his employer to carry out work which included lifting and repetitive movement of the arms and shoulders. The employer was aware of the plaintiff’s injuries of 10 May 2006 but failed to provide suitable light work. The work over the entire period aggravated the plaintiff’s earlier injuries.

Counsel for the plaintiff confirmed on the hearing of the application that the plaintiff does not make any claim in respect of the period of employment prior to 10 May 2006.

The respondent employer initially filed a notice of intention to respond through solicitors instructed by its worker’s compensation insurer on risk for the period from 1 January 2007, which I shall call QBE. A subsequent notice of intention to respond was filed…

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.

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Details

Case: [2011] ACTSC 57
Decision Date: 8 April 2011

CaseChat Overview and Summary

The case of Tanong Chitasing v Lennock Phillip Pty Ltd involved a claim for damages for personal injury that arose from a work-related incident. The dispute was heard and determined by the Supreme Court of Queensland. The plaintiff, Tanong Chitasing, alleged that he sustained injuries during his employment with the defendant, Lennock Phillip Pty Ltd, and sought compensation for those injuries. The legal issue at the heart of this case was whether the court should grant an extension of time for the plaintiff to commence legal proceedings against the defendant, given that the statutory limitation period had expired.

In determining whether to extend the limitation period, the court considered whether the plaintiff had a satisfactory explanation for the delay in bringing the action and whether the defendant would suffer actual prejudice or be unable to mount a fair defence if the extension was granted. The court also weighed the balance of interests between the plaintiff and the defendant in deciding whether the extension should be granted. In this instance, the court found that the plaintiff had provided a reasonable explanation for the delay, and that the defendant would not be prejudiced by the extension. Furthermore, the court concluded that the balance of interests favoured granting the extension, as the plaintiff had a legitimate claim for damages and the defendant was able to defend the action.

As a result, the court granted the plaintiff's application for an extension of time, allowing the action to proceed. The court ordered that the limitation period be extended to 21 April 2011, and that the proceeding continue as if it had been started by the originating claim. The plaintiff was also required to file and serve a statement of claim by the same date. Additionally, the plaintiff was ordered to pay the costs of the application incurred by GIO Insurance Ltd, although these costs would not be recoverable until final orders were made in the action. This decision demonstrates the court's willingness to consider extensions of limitation periods in appropriate circumstances, while also taking into account the interests of both parties involved.

Orders

Orders of the court

1. the period within which an action on the plaintiff’s cause of action against the defendant may be brought be extended to a period ending on 21 April 2011.

2. the proceeding continue as if started by originating claim.

3. the plaintiff file and serve a statement of claim by 21 April 2011.

4. the plaintiff pay the costs of the application of GIO Insurance Ltd.

5. costs of the application are not 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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