THOMAS PEACOCK & SONS PTY LTD -v- ABREU [2013] WASCA 19

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 19
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:20/2012	Heard:	15 OCTOBER 2012
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	5/02/13
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed Crossappeal dismissed
Category:	B
PDF Version

Parties:	THOMAS PEACOCK & SONS PTY LTD OSWALD BRUCE ABREU
Catchwords:	Limitation of actions Personal injury at work Relevant limitation period Whether Limitation Act 2005 (WA) s 14 applies Appeal against decision of primary judge that s 93K(4) of Workers' Compensation and Injury Management Act 1981 (WA) excludes operation of s 14 of Limitation Act Crossappeal against finding that if s 14 of Limitation Act applies cause of action accrues only when plaintiff obtains assessment of greater than 15% disability
Legislation:	Limitation Act 2005 (WA), s 6, s 9, s 14, s 55 Workers' Compensation and Injury Management Act 1981 (WA), s 93C, s 93K, s 93L, s 93M, s 93O
Case References:	Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31 Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THOMAS PEACOCK & SONS PTY LTD -v- ABREU [2013] WASCA 19 CORAM : PULLIN JA

NEWNES JA

MURPHY JA

HEARD : 15 OCTOBER 2012 DELIVERED : 5 FEBRUARY 2013 FILE NO/S : CACV 20 of 2012 BETWEEN : THOMAS PEACOCK & SONS PTY LTD

Appellant

AND

OSWALD BRUCE ABREU

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : KEEN DCJ

Citation : ABREU -v- THOMAS PEACOCK & SONS PTY LTD [No 3] [2012] WADC 31

File No : CIV 2455 of 2009

(Page 2)

Catchwords:

Limitation of actions - Personal injury at work - Relevant limitation period - Whether Limitation Act 2005 (WA) s 14 applies - Appeal against decision of primary judge that s 93K(4) of Workers' Compensation and Injury Management Act 1981 (WA) excludes operation of s 14 of Limitation Act - Crossappeal against finding that if s 14 of Limitation Act applies cause of action accrues only when plaintiff obtains assessment of greater than 15% disability

Legislation:

Limitation Act 2005 (WA), s 6, s 9, s 14, s 55

Workers' Compensation and Injury Management Act 1981 (WA), s 93C, s 93K, s 93L, s 93M, s 93O

Result:

Appeal allowed

Crossappeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr G R Hancy

Respondent : Mr T Lampropoulos

Solicitors:

Appellant : WHL Legal Pty Ltd

Respondent : S C Nigam & Co

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

Abreu v Thomas Peacock & Sons Pty Ltd [No 3] [2012] WADC 31
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553

(Page 3)

1 JUDGMENT OF THE COURT: This is an appeal against a decision of Keen DCJ in the District Court in which, on the…

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: [2013] WASCA 19
Decision Date

CaseChat Overview and Summary

Thomas Peacock & Sons Pty Ltd appealed against a decision of the primary judge that s 14(1) of the Limitation Act 2005 (WA) did not apply to a claim for damages for personal injury suffered by the respondent in the course of his employment. The respondent cross-appealed against the finding that if s 14(1) of the Limitation Act applied the cause of action accrued only when the plaintiff obtained an assessment of greater than 15% disability. The Court of Appeal found that s 14(1) of the Limitation Act did apply to the respondent's claim. The Court held that the provisions of the Limitation Act and the Workers' Compensation and Injury Management Act 1981 (WA) were directed to different ends and operated independently. Both provisions applied to a claim for damages made pursuant to s 93K of the Workers' Compensation and Injury Management Act. The Court also held that the cause of action accrued on 29 or 30 May 2006 and dismissed the cross-appeal. The appeal was allowed, the notice of contention was dismissed, and the cross-appeal was dismissed.

Orders