Colgan v Auckland Council

[2020] NZHC 1833

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-00406

[2020] NZHC 1833

BETWEEN

ELVA COLGAN

Plaintiff

AND

AUCKLAND COUNCIL

Defendant

Hearing:	On the papers
Judgment:	27 July 2020

JUDGMENT OF DUFFY J

This judgment was delivered by me on 27 July 2020 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Maurice Blackburn Lawyers, Brisbane Medico Law Lawyers, Auckland

ELVA COLGAN v AUCKLAND COUNCIL [2020] NZHC 1833

[1]The plaintiff in this proceeding filed her statement of claim on 8 March 2019.

[2]        The claim is an action for damages brought in negligence for her personal injury; the development of pleural mesothelioma, a type of cancer caused by asbestos exposure. The plaintiff alleges that her pleural mesothelioma was caused by asbestos exposure arising out of washing the work clothes of her late husband, a former employee of the Auckland Harbour Board who was exposed to asbestos during his employment with that entity between 1971 and 1988.1 A portion of this time period was before the coming into force of the first Accident Compensation Act 1972.2 The plaintiff has earlier applied for cover under the Accident Compensation Act 2001. Her application was rejected on the basis her mesothelioma was not a work-related injury.

[3]        On 8 July 2019, this court delivered judgment in Calver v Accident Compensation Corporation.3 Before the delivery of Calver v Accident Compensation Corporation the general understanding was that the Accident Compensation Act 2001 did not provide cover to people like the plaintiff who suffered from mesothelioma caused by exposure to asbestos outside of employment. It was also generally understood that persons who were not entitled to cover under the Accident Compensation Act 2001 and who had suffered personal injury before the passing of the Accident Compensation Act 1972, were entitled to seek common law damages for their injuries because their right to sue for such injury had not been extinguished.4

[4]        In October 2019 this court granted the Accident Compensation Corporation leave to appeal the decision of Calver. A hearing date has yet to be set. The outcome of the appeal is likely to determine whether the plaintiff is entitled to bring an action for damages in negligence for her injury. If the Court of Appeal upholds the decision of this Court, the plaintiff’s present action will be barred by the operation of the Accident Compensation Act 2001. On the other hand, if the Court of Appeal allows

1      The Auckland Harbour Board was dissolved in or about 1989 and its liabilities were assumed by the Auckland Regional Council. When the Auckland Regional Council was dissolved the Auckland Council assumed its liabilities.

2      This legislation came into force on 1 April 1974.

3      Calver v Accident Compensation Corporation [2019] NZHC 1581, [2019] 3 NZLR 261.

4      The statutory bar against recovery of damages for personal injury that was imposed by the Accident Compensation Act 1972 has been continued in subsequent legislation leading up to the Accident Compensation Act 2001.

the appeal and decides that cover is not available for non-work related mesothelioma the plaintiff will be entitled to bring her action in negligence.

[5]        The plaintiff seeks an extension of time for service of six months pursuant to r 5.73 of the High Court Rules. She submits there is a good reason to extend the period for service, this being that the availability of the plaintiff’s right to bring the proceeding depends on the outcome of the appeal in Calver v Accident Compensation Corporation. Until the appeal has been determined the state of the law in respect of the plaintiff’s entitlement to bring her case is unclear.

[6]        The plaintiff’s application for an extension of time for service came before Gault J in July 2020. In a minute dated 2 July 2020 His Honour directed the plaintiff to file a further memorandum addressing whether there is any authority supporting an extension where the plaintiff has elected to delay service in a case of this nature, and further information regarding the prejudice to the plaintiff if an extension is not granted. The plaintiff has helpfully provided me with a subsequent memorandum outlining the relevant case law on the exercise of r 5.73 and its equivalent in other jurisdictions.

[7]        I consider the authority to extend time for service to be a broad discretionary power that is available to this Court. Here, it would serve little purpose if the plaintiff had served the defendant within the 12 month time-frame. Delivery of the judgment in Calver established a bar to this proceeding. Had the plaintiff served the proceeding she is likely to have found herself facing an application for strike out. Any action that would engage the defendant at this time may later result in a liability for the plaintiff for costs. I consider the plaintiff has acted responsibly by delaying service of her claim. This is an appropriate case where an extension of time should be granted.

[8]        Accordingly, the 12-month period for serving the statement of claim on the defendant is extended by a further six months.

Duffy J