Wallis bnf v Lyco Industries - [2002] NSWSC 1215

CITATION: Wallis bnf v Lyco Industries [2002] NSWSC 1215

FILE NUMBER(S): SC 20505 of 2000

HEARING DATE(S): 13 December 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

Robert Jock Wallis bnf Ruth Susan Wallis and
Lyco Industries Pty Ltd

JUDGMENT OF: Cooper AJ

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Deputy Registrar Howe

COUNSEL : Mr J. E. Rowe for Plaintiff (respondent)
Mr R. Gambi for Defendant (applicant)

SOLICITORS: Long Howland Houston, Lawyers (Plaintiff)
McCabe Yerrill, Lawyers (Defendant)

CATCHWORDS: Cause of Action not maintainable - S.19 Limitation Act for the benefit of S.4 Compensation to Relatives Act.

LEGISLATION CITED: Sections 19, 53, 75 of Limitation Act
Compensation to Relatives Act

CASES CITED: Bendt v Green & Ors unreported decision of
Enderby J, (7 April 1983).
Palmer & Ors v Riverstone Meat Co Pty Ltd & anor. 1988 Australian Tort Reports 68, 245.
Noja v Civil & Civic Pty Ltd & Ors 93 ALR 224

DECISION: Accordingly, the appeal from the judgement of Assistant Registrar Howe of 16 April 2002 is dismissed and his orders are confirmed.; I order the appellant (defendant) to pay the respondent's (plaintiff's) costs of this appeal.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SYDNEY REGISTRY

No 20505 of 2000

ROBERT JOCK WALLIS bnf RUTH SUSAN WALLIS

LYCO INDUSTRIES PTY LIMITED

18 December 2002

Reasons for Judgment

1 Andrew Robert Wallis (the deceased) was a farmer and grazier. Early on the morning of 10 May 1989 he was operating his Lyco Power Tech fully automatic pinning hydraulic wool press when the top plate of the press descended on his head killing him almost instantly.

2 He left a widow, Ruth Susan Wallis, who was then aged 29 and their baby son, Robert Jock Wallis, who was born on 9 October 1988.

3 On 19 September 2000 this action was commenced under the Compensation to Relatives Act for the benefit only of the son, Robert Jock Wallis alleging negligence against the defendant in the design and manufacture of the press..

4 The plaintiff in the action is Robert Jock Wallis, the son, and his mother, Ruth Susan Wallis, is named only in the capacity of his next friend. The person on whose behalf and for whose benefit the action is brought is stated as “the plaintiff as the son of the deceased”.

5 Section 19 of the Limitation Act provides:-

Relatives Act

6 This action was brought well after the expiration of the six year limitation period but by reason of Section 52 of the Limitation Act the running of the limitation period is suspended for the duration of 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 Wallis bnf v Lyco Industries

Details

AGLC: Wallis bnf v Lyco Industries [2002] NSWSC 1215
Case: [2002] NSWSC 1215
Decision Date: 18 December 2002

CaseChat Overview and Summary

The court was presented with an action brought by a beneficiary of a deceased individual against a company, Lyco Industries. The deceased had suffered injuries in an incident involving a product manufactured by the defendant, and the plaintiff sought compensation on behalf of the deceased’s estate. The primary issue before the court was whether the plaintiff’s cause of action was maintainable under the statutory framework, particularly in light of the provisions of the Limitation Act and the Compensation to Relatives Act.

The court examined whether the statutory provisions applicable to the limitation period for actions brought under the Compensation to Relatives Act applied to the plaintiff's claim. Given the specific wording of Section 19 of the Limitation Act and its interplay with Section 4 of the Compensation to Relatives Act, the court had to determine whether the plaintiff’s action was barred by the limitation period. The court found that the statutory provisions did indeed apply, leading to the conclusion that the plaintiff's action was not maintainable as it had been filed beyond the prescribed period.

Consequently, the court held that the plaintiff's claim was time-barred under the statutory limitation provisions. The court dismissed the plaintiff's action, finding that it did not meet the requirements set out in the relevant Acts. The court’s decision was based on the statutory interpretation that the provisions of the Limitation Act applied to the cause of action under the Compensation to Relatives Act, thereby barring the plaintiff's claim.

Orders