Van Gerven v Amaca Ltd - [2010] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2008 10268

DEIRDRE VAN GERVEN (ON BEHALF OF HERSELF AND AS EXECUTRIX OF THE ESTATE OF THE LATE THOMAS CORNELIS VAN GERVEN) (DECEASED)	Plaintiff
v
AMACA PTY LTD (FORMERLY JAMES HARDIE & CO PTY LTD) (ACN 400 035 512)	First Defendant
and
NEI PACIFIC LIMITED (ACN 004 108 749)	Second Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2010
DATE OF JUDGMENT:	1 June 2010
CASE MAY BE CITED AS:	Van Gerven v Amaca Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 236

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TORT – Personal Injury - Limitation of actions – claim for damages for dust related condition by executrix on behalf of deceased’s estate – accident occurring in New Zealand – interpretation of s 5(1A) Limitation of Actions Act 1958 – s 20(1A) Wrongs Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Hartley SC with Mr A S Pillay	Slater & Gordon Ltd
For the First Defendant	Mr S Moloney	DLA Phillips Fox

HER HONOUR:

The proceeding

The plaintiff (‘Ms Van Gerven’) commenced this proceeding by a writ filed on 12 December 2008. She claims damages in relation to the death on 1 June 1997 of her late husband, Thomas Cornelis Van Gerven (‘the deceased’). She brings a claim under Part III of the Wrongs Act 1958 (‘the Wrongs Act’) as a dependent widow and another under s 29 of the Administration and Probate Act 1958 (‘the APA’) as the executrix for the benefit of the deceased’s estate.

Ms Van Gerven sues the first defendant (‘Amaca’) as the manufacturer of asbestos to which the deceased was allegedly exposed whilst working for the second defendant (‘NEI’) (then known as John Thompson (Australia) Proprietary Limited).

The defendants argue that the proceedings are statute barred. Ms Van Gerven responds that the limitation period has not expired in relation to either of her claims, by reason of the operation of s 5(1A) of the Limitation of Actions Act 1958 (‘the LAA’)and s 20(1A) of the Wrongs Act, respectively.

Whilst she also seeks any necessary extension of the limitation period under s 23A and 27K of the LAA and under s 20(1A) of the Wrongs Act, those applications have not yet been made.

Preliminary question

The parties seek the resolution under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 of the preliminary issue as to the effect s 5(1A) of the LAA and s 20(1A) of the Wrongs Act on Ms Van Gerven’s claims.

LAA

At the relevant time, the LAA provided for a six year limitation period for personal injury actions. The LAA had also been amended in 1983 to automatically extend that period in the case of ‘a disease or disorder’. The applicable provisions were in s 5 and s 5(1A) :

5. Contracts and torts
(1) The following actions shall not be brought after
the expiration of six years from 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.

Continue reading Van Gerven v Amaca Ltd

Details

AGLC: Van Gerven v Amaca Ltd [2010] VSC 236
Case: [2010] VSC 236
Decision Date: 1 June 2010

CaseChat Overview and Summary

The case of Van Gerven v Amaca Ltd involves the executrix of the estate of a deceased individual who seeks damages for a dust-related condition allegedly caused by the defendant's negligence. The defendant, Amaca Ltd, is a company involved in the construction industry. The dispute revolves around the application of statutory limitation periods and jurisdictional issues regarding where the claim should be heard. The matter was heard in the Supreme Court of Victoria, where the court had to determine whether the claim was time-barred and if it had jurisdiction to hear the case.

The primary legal issues the court had to address were whether the claim was subject to the limitation periods prescribed under the Limitation of Actions Act 1958 (Vic), and whether the court had the jurisdiction to hear the case given that the alleged injury occurred in New Zealand. Specifically, the court had to interpret sections 5(1A) of the Limitation of Actions Act and section 20(1A) of the Wrongs Act 1958 (Vic) to ascertain the applicability of the limitation period and whether the claim was statute-barred.

The court's reasoning hinged on the interpretation of the statutory provisions. The court held that the claim was subject to the limitation periods under the Limitation of Actions Act, but also noted that the application of section 5(1A) had to be considered in light of the fact that the injury occurred in New Zealand. The court found that the limitation period had not expired as the deceased individual was not aware of the injury until after they returned to Australia. The court also determined that it had jurisdiction to hear the case because the defendant's conduct in Victoria was connected to the injury sustained in New Zealand. Consequently, the court ruled that the claim was not time-barred and could proceed.

The final orders of the court were that the claim was not statute-barred, and the court had jurisdiction to hear the case. The executrix's claim for damages on behalf of the deceased's estate was allowed to proceed.

Orders