Wayne Darcy Driscoll v Iron Mountain Australia Pty Limited
[2010] ACTSC 127
•22 October 2010
WAYNE DARCY DRISCOLL v IRON MOUNTAIN AUSTRALIA PTY LIMITED and ANOR [2010] ACTSC 127 (22 October 2010)
LIMITATION OF ACTIONS – cause of action – personal injury claim arising from employment and involving a motor vehicle – s 16A and not s 11 of the Limitation Act 1985 (ACT) applies.
Limitation Act 1985 (ACT), ss 11, 16A, , 16B, 36, 100
Workers Compensation Act 1951 (ACT), ss 11, 120
Workers Compensation Amendment Act 2001 (ACT), ss 17, 35
Civil Law (Wrongs) Amendment Act 2003(No 2) (ACT), s 58
Limitation Amendment Act 2005 (ACT), s 60
Explanatory Memoranda to the Workers Compensation Amendment Bill 2001 (ACT)
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
DJ v RHS and JF [2004] ACTSC 12 (2 April 2004)
No. SC 914 of 2007
Judge: Gray J
Supreme Court of the ACT
Date: 22 October 2010
IN THE SUPREME COURT OF THE )
) No. SC of 914 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:WAYNE DARCY DRISCOLL
Plaintiff
AND:IRON MOUNTAIN AUSTRALIA PTY LIMITED ACN 005 944 203
First Defendant
AND:CIC ALLIANZ INSURANCE LIMITED ABN 56 094 802 801
Second Defendant
ORDER
Judge: Gray J
Date: 22 October 2010
Place: Canberra
THE COURT DETERMINES THAT:
Section 16A of the Limitation Act 1985 (ACT) applies to the cause of action constituted by the second accident of 1 September 2003 alleged by the plaintiff in an originating claim filed in this Court on 21 December 2007.
By originating claim filed on 21 December 2007, the plaintiff, Wayne Darcy Driscoll, claims damages for personal injury against Iron Mountain Australia Pty Limited, the first defendant. The claim is said to arise out of two accidents. It is alleged that on 18 December 1999, the plaintiff, whilst in the course of his employment with the defendant, suffered injury when carrying the sandstone base of a coffee table (first accident). In addition, it is also alleged that on 1 September 2003, the plaintiff, whilst in the course of his employment with the defendant, suffered injury when loading a cabinet into a truck of which the defendant was also the registered owner (second accident).
CIC Allianz Insurance Limited, the insurer of the truck, has been joined as the second defendant.
In the case of the first accident, the proceedings were brought outside the time allowed by s 11 of the Limitation Act 1985 (ACT) (Limitation Act). In order to maintain the proceedings for this accident, it will be necessary for the plaintiff to seek an extension of time under s 36 of the Limitation Act within which to bring the action.
The plaintiff seeks a determination that the proceedings that he has instituted in respect of the second accident are within the time allowed by s 11 of the Limitation Act. Section 11 provides:
General
(1)Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
(2)Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.
Section 16A of the Limitation Act was enacted with effect from 28 September 2001. It provides:
Claims for common law compensation for workers compensation
(1)This section applies to a cause of action, other than a cause of action that is a claim for compensation under the Workers Compensation Act 1951, if—
(a)the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and
(b)a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 if notice of the injury had been given as required under that Act.
(2)The action is not maintainable if brought 3 or more years after the day the injury happened.
In its terms, s 16A would appear to apply to the plaintiff’s claim in relation to the second accident. The cause of action put forward is a claim for personal injury arising from the second accident. The plaintiff, in fact, within days of the injury, made a workers’ compensation claim in respect of it and he was paid compensation for varying periods over the next ten months.
The plaintiff’s submission
However, the plaintiff submits that the second accident is both a cause of action “pursuant to workers’ compensation” and a cause of action “against the registered owner of the motor vehicle”. It is put that the latter cause of action is not the subject of s 16A and at that point of time, as no other limitation period is provided under the Limitation Act, s 11(1) of that Act applies and the time for maintaining the action in respect of the second accident is six years.
It is further put that s 16A(1)(b) should be construed so as to not apply to the plaintiff as the plaintiff had, in fact, given notice and made a claim in relation to the cause of action under the Workers Compensation Act 1951 (ACT) (Workers Compensation Act). Simply by making such a claim, the plaintiff should not be precluded from pursuing his cause of action against the owner of the motor vehicle.
Section 16A of the Workers Compensation Act
Section 16A of the Limitation Act directs attention to a cause of action that relates to a personal injury compensable under the Workers Compensation Act and a claim could be or could have been made under that Act.
The section was enacted by s 35 of the Workers Compensation Amendment Act 2001 (ACT). That amending Act extensively altered the Workers Compensation Act which, according to the Explanatory Memorandum, was to “reshape the ACT workers’ compensation scheme into a scheme based upon the rehabilitation and return to work of injured employees”.
Amongst the many amendments, s 17 of the Workers Compensation Amendment Act 2001 enacted s 11D of the Workers Compensation Act to provide that proceedings for recovery of compensation for an injury were only to continue if notice of the injury was given as soon as practicable after the injury happened and the claim for compensation was made within three years (that provision is now s 120 of the Workers Compensation Act). The enactment of s 16A of the Limitation Act was a late addition and a separate Explanatory Memorandum set out the following:
Clause 29 inserts an amendment into the Limitation Act 1985, numbered as section 16A. The amendment sets out the time limit for a claim for damages at common law in relation to a personal injury. The period in which a claim may be filed has been reduced from 6 years to 3 years.
As can be seen from the terms of s 16A, the focus of the section is on a cause of action described and qualified by being a personal injury “that is a compensable injury under the Workers Compensation Act”. It is not necessarily the qualification that encompasses the much broader expression covering “the time limit for a claim for damages at common law in relation to a personal injury” to which the Explanatory Memorandum refers even if that was the announced purpose of the amendment.
However, in my view, the enactment of s 16A has that intended effect. That is because s 16A is predicated to operate on a “cause of action”. There can be no doubt about the meaning of that expression. In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 (at 245) Wilson J, citing a number of authorities, said:
The concept of a "cause of action" would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage.
Where there is a coincidence of the facts and the claim which arises from those facts there will be one identifiable cause of action. This is illustrated by the comment of Brennan J (as he then was) in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (at 611):
If cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by it any subsequent proceeding to recover a judgment giving a remedy to enforce or to compensate for an infringement of that right. The rule does not preclude litigation seeking a remedy to which a party is entitled in virtue of a different right from that which was first put in suit provided that the facts which support the right sued upon in the second action are not the same facts as those supporting the right which passed into the first judgment: thus in Brunsden v Humphrey (1884) 14 QBD 141 where the same act of negligence caused damage to the plaintiff's property and injury to the plaintiff's person it was held that different rights were infringed and that an action for damages for personal injury was not barred by recovery of a judgment for damage to property.
In the present case, the cause of action for damages for personal injuries arises out of the same facts that found the claim for compensation under the Workers Compensation Act. It is not to the point, as the plaintiff suggests, to characterise the facts constituting the cause of action by a designation of “workers compensation” or “road accident”. That designation might be descriptive of the facts but the consequence arising from those facts, namely personal injury, is the only “right” that is infringed. In other words, the claim for damages for personal injury in this case arises from the same facts whether those facts be described as constituting a workers compensation claim or road accident claim. Those facts constitute the cause of action for the purposes of s 16A and those facts have the characteristic required by s 16A(1)(a) and s 16A(1)(b).
Nor do I accept the plaintiff’s submission that the “criteria” in s 16A(1)(b) of “a claim could be, or could have been made” is not made out because the plaintiff had, in fact, made a claim for workers compensation. If, as I think it must, s 16A(1)(b) is directing attention to what constitutes the cause of action, the fact of whether a claim has been made is of no relevance to such a determination. The description of a claim in s 16A(1)(b) as one that “could be, or could have been, made” relates to the capacity of the claim to meet the designated circumstance of one where the claim could be or could have been made if the required notice had been given.
In my view, there is no scope in the way that s 16A of the Limitation Act is framed for it to have the effect that the plaintiff suggests. The plain words of the provision do not allow the construction that the plaintiff puts forward. To have the provision apply in that way would be quite contrary to the well-settled understanding of what the law regards as constituting a cause of action.
The enactment of section 16B
At the hearing of this matter, reference was made to s 16B of the Limitation Act which was enacted by s 58 of the Civil Law (Wrongs) Amendment Act 2003(No 2) (ACT). Section 16B(1) applied to a “cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies” and provided a three year limitation period for such causes of action. Section 16B as it now stands does not apply to the plaintiff’s cause of action as the Limitation Amendment Act 2005 (ACT) added s 100(1) to the Limitation Act to declare that s 16B did not apply to a cause of action that arose before 9 September 2003 although when enacted, s 16B applied to causes of action on or after 1 July 2003 (see s 16B(3) of the Limitation Act as enacted by s 58 of the Civil Law (Wrongs) Amendment Act 2003 (No. 2)). This means that s 16B, when first enacted, would have applied to the plaintiff’s cause of action constituted by the second accident.
Written submissions were provided by the parties to address the effect, if any, of the enactment of s 16B on the interpretation of s 16A. Because of the view that I take of how s 16A is to be interpreted, I do not consider that it is necessary to address the matters raised by the parties in respect of s 16B but, in any event, I am unable to see that the enactment of that provision has any affect on the proper interpretation of s 16A. On the other hand, the interpretation of s 16A may have an effect on the application of s 16B and the exclusion of the causes of action to which s 16B applies from the operation of s 36 of the Limitation Act (cf DJ v RHS and JF [2004] ACTSC 12 (2 April 2004)).
Other cases
I invited the plaintiff to provide me with any cases where the question for determination in this case had arisen. The plaintiff referred to a number of cases where extensions of time under s 36 of the Limitation Act were considered for personal injury claims in respect of which a workers compensation claim had been made within the three year limitation period. Those cases seem to have been predicated on s 16A of the Limitation Act applying to the personal injury claim for which the extension of time was claimed and offer no support to the plaintiff’s argument.
Conclusion
Section 16A of the Limitation Act applies to the cause of action constituted by the second accident of 1 September 2003 alleged by the plaintiff in an originating claim filed in this Court on 21 December 2007.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 22 October 2010
Counsel for the plaintiff: Mr J Sainty
Solicitor for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the first defendant: Mr G Stretton SC
Solicitor for the first defendant: Hicksons Lawyers
Counsel for the second defendant: Mr R Crowe SC
Solicitor for the second defendant: Moray & Agnew
Date of hearing: 2 October 2009
Date of judgment: 22 October 2010
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