Ian Edward Morris v Fred Pty Limited (Formerly Chapman Pools and Spas Pty Limited) In Liquidation and Mimon Holdings Pty Limited [1995] ACTSC 133 (4 December 1995)

SUPREME COURT OF THE ACT

IAN EDWARD MORRIS v. FRED PTY LIMITED (formerly CHAPMAN POOLS AND SPAS PTY
LIMITED) IN LIQUIDATION and MIMON HOLDINGS PTY LIMITED
No. SC824 of 1994
Number of pages - 4
Limitation of Action

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Action - personal injury - applicant unaware of limitation period for common law action - request for extension of time bar imposed by the Limitation Act - delay caused by need to identify employer - defendant in liquidation - requirement of just and reasonable grounds for granting extension - no new principle.

Limitation Act 1985 (ACT), s36

HEARING

CANBERRA, 10 November 1995
4:12:1995

Counsel for the Plaintiff: Mr R Crowe

Instructing solicitors: Porter Pilkinton and Bradfield

Counsel for the First Defendant: Mr R Refshauge

Instructing solicitors: Deacons Graham James

Counsel for the Second Defendant: No appearance

Instructing solicitors: Hunt and Hunt

ORDER

THE COURT ORDERS THAT:
The time for commencing proceedings is, pursuant to s36(2) of the Limitation Act 1985 (ACT), extended until 10 November 1995.

DECISION

HIGGINS J On 25 August 1995 the plaintiff applied for leave to proceed against the first defendant, a company in liquidation. He also sought an order that the time bar imposed by the Limitation Act 1985 (ACT) (Limitation Act) be extended to enable the action to be maintained against each defendant.

2. Leave to proceed and to make some formal amendments was granted to the plaintiff on 10 November 1995. The making of those orders was not opposed.

3. The plaintiff, in support of his application, deposed that in mid-1986 he became employed by an entity carrying on business in this Territory under the name "Cool Pools of Canberra". The plaintiff had assumed that the second defendant was the proprietor of that name.

4. In October 1988, the plaintiff suffered injury at work at a home pool site in Canberra. He was carrying out pool maintenance work in the course of his employment. The injury appeared to have been caused by the carrying of 40kg bags of sand from the street to the backyard.

5. He promptly notified his employer's insurer of his injury. That claim was acknowledged on 8 December 1988.

6. The plaintiff was treated by Dr Madden, a general practitioner, and Dr Ray Newcombe, a neurosurgeon. He had physiotherapy twice weekly over seven weeks.

7. He then returned to work on light duties, undertaking full duties after three months. It was then winter and there were few heavy jobs which needed to be performed.

8. The plaintiff's back was a source of continuing difficulty, aggravated by twisting, lifting or bending.

9. On 26 August 1994 the plaintiff was cleaning a pool at Farrer in the Territory when he twisted to avoid a piece of furniture at the side of the pool and fell in. His back condition was aggravated. He has not worked since. Compensation benefits have continued to be paid.

10. Following the worsening of the plaintiff's back condition, he consulted a solicitor on 29 September 1994. That consultation was prompted by delay on the part of the insurer in paying the compensation benefits which the plaintiff expected.

11. At the time of that consultation the plaintiff believed his original injury to have been in January 1989. However, inquiries then undertaken by the solicitor disclosed that the accident had been in October 1988. The time bar had taken effect by the time the solicitor had obtained that information.

12. Between January 1995 and June 1995 the plaintiff obtained further information concerning his employment.

13. The plaintiff states that he had not been aware that there was a limitation period for a common law action until he was so advised by his solicitor in September 1994.

14. A further complication arose in relation to the identity of his employer. He believed that it was the second defendant. However, the name Chapman Pools and Spas Pty Ltd also appeared on documents relating to the plaintiff's employment with "Cool Pools of Canberra". It appears that Chapman Pools and Spas Pty Ltd changed its name, and became known as Fred Pty Limited from 13 April 1993. It is now the first defendant. The second defendant's solicitors had informed the plaintiff's solicitors on 11 January 1995 that the second defendant became proprietor of the business name "Cool Pools of Canberra" only on and from 1 July 1992.

15. On 11 January 1995 solicitors for the first defendant raised the suggestion that the first defendant had not been the employer of the plaintiff in October 1988.

16. On 23 June 1995, the plaintiff's solicitors were advised that the first defendant was in liquidation.

17. The relationship between the first and second defendant is unclear on the evidence before me. It is possible that they are different corporate vehicles for the same or associated persons but no assumption can be made one way or the other. The plaintiff, however, seems to have been unaware of any change of management.

18. Only the second defendant has appeared. It has not sought to challenge the evidence of the plaintiff or adduce any further evidence of its own.

19. The plaintiff has to satisfy the court, after due consideration and regard to the matters referred to in s36(3) of the Limitation Act, that it is, per s36(2), "just and reasonable" to grant an extension of the limitation period to enable the action to be maintained. I will now consider the matters referred to in s36(3).

(a) Length of and reasons for delay on the part of the plaintiff
20. The delay is from October 1988 until 6 December 1994.

21. Until August 1994, the plaintiff's injury was, though disabling, not sufficiently troublesome to threaten his ongoing employment. Shortly after the worsening of the disability due to a further incident, the plaintiff sought and obtained advice. The subsequent period of delay, whilst longer than usual, is explained by the need to verify the details of the accident of October 1988 and the identity of the relevant employer.

(b) Prejudice to the defendant
22. There is necessarily some prejudice to the defendant but none other than that inevitably arising from the delay itself. The prejudicial effect of that delay is, to some extent, mitigated by the prompt report of the original injury for compensation purposes.

(c) Conduct of the defendant
23. Apart from a lack of express advice to the plaintiff to explore his common law rights, there is nothing relevant the defendant did or has failed to do. There was no positive duty to advise the plaintiff of his common law rights. However, to have done so would have lessened the plaintiff's capacity to assert that it would be just and reasonable to grant an extension of the time bar.

(d) Duration of disability
24. It was reasonable for the plaintiff to delay until it was clear that the injury was not temporary. Even then the injury did not give rise to really serious damage. There was a change in that circumstance for the worse on 26 August, 1994.

25. Further, it is now clear that the disabilities are serious, permanent and destructive of the plaintiff's working capacity.

26. That consideration adds weight to the plaintiff's case for extension of time.

(e) Prompt and reasonable action after awareness of rights
27. The plaintiff was not actually aware of his right to sue until after he consulted his solicitor. Thereafter, although there may have been some hesitation, action was pursued with reasonable promptness.

(f) Steps to take advice
28. The plaintiff did fail, before September 1994, to obtain competent legal advice. There was no prior advice which was misleading or contributed to the delay, whether legal or otherwise.

29. On balance, having regard to all those matters and the circumstances of the case so far as now made the subject of evidence, I consider that it would be just and reasonable to extend the period of limitation to enable the plaintiff to maintain his proposed action.

30. Time will be extended accordingly until 10 November 1995 so as to include, without question, the inclusion of the first defendant in the proceedings.

31. I will hear the parties as to costs.