Warren James Gibbs v the Commonwealth of Australia [1995] ACTSC 139 (8 December 1995)

SUPREME COURT OF THE ACT

WARREN JAMES GIBBS v. THE COMMONWEALTH OF AUSTRALIA
No. SC 652 of 1994
Number of pages - 5
Limitation of Action

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Action - application to extend time bar in personal injury matter - applicant had received advice that common law rights were restricted by the Comcare Act - applicant otherwise unaware of common law rights - applicant acted promptly once aware of his common law rights - requirement that extension of time bar must be just and reasonable - judicial indication pending High Court decision.

Limitation Act 1985 (ACT), s36
Commonwealth Employees Rehabilitation and Compensation Act now known as the Safety Rehabilitation and Compensation Act 1988 (Cth), ss24, 44, 45

Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297
Fitzgibbon v Commonwealth of Australia, unreported, Supreme Court, Australian Capital Territory, Higgins J, 11 October 1994
Clark v Robb and Liu formerly t/as Liu and Robb, Barristers and Solicitors, unreported, Supreme Court, Australian Capital Territory, Higgins J, 7 November 1994
Commonwealth of Australia v Robert John Mewett, Commonwealth of Australia v Michael John Rock, Commonwealth of Australia v Mark John Brandon, unreported, Full Federal Court, Sydney, Spender, Cooper and Lindgren JJ, 31 August 1995
S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

HEARING

CANBERRA, 6 November 1995
8:12:1995

Counsel for the Plaintiff : Mr R Crowe

Instructing solicitors : Gary Robb and Associates

Counsel for the Defendant : Mr M Chilcott

Instructing solicitors : Australian Government Solicitor

ORDER

THE COURT DECLARES THAT:

If legally open to do so, it would be just and reasonable,
pursuant to s36(2) of the Limitation Act 1985 (ACT), to extend
the time bar to enable the plaintiff to maintain these
proceedings.

DECISION

HIGGINS J This is an application under s36 of the Limitation Act 1985 (ACT) (Limitation Act) to extend the time within which the plaintiff may commence proceedings for damages for personal injury against the defendant.

2. The following facts are accepted for the purposes of the present application.

3. On 26 May 1987 the plaintiff was employed by the defendant as an apprentice plumber. He was directed to clean up some debris left by contractors who had been carrying out work on the Australian Federal Police Building at Barton in the Australian Capital Territory. He ascended to the roof by ladder and, whilst carrying out his task, stepped on some loose concrete, lost his footing and fell off the roof. It is material to note that, in 1980, the plaintiff's left leg had been amputated below the knee. When he commenced work with the defendant in 1983, the Senior Medical Officer who assessed his fitness for work recommended certain restrictions as follows,

Not to climb ladders.
Not to climb roof spaces.
Not to walk or climb over floor or ceiling beams.
Not to work in holes, pits or trenches containing fluid and/or
weed.

4. It is obviously arguable that the defendant would be negligent if it had required the plaintiff to engage in the work he was attempting when he fell.

5. The consequences of the fall were serious, not only was the plaintiff's artificial leg damaged but his right leg was seriously injured. He already had sustained some instability of the right knee. The knee was further injured so as to also affect the plaintiff's foot. Dr David Roebuck, orthopaedic surgeon, has assessed the plaintiff as having sustained a 31% permanent loss of efficient use of the right leg below the knee.

6. The leg had been subjected to operative treatment in May 1988. Following that operation, the plaintiff became addicted to painkillers which were prescribed for him. He required detoxification treatment.

7. He first contacted a solicitor on 9 March 1993 about a proposal for the termination of his employment which the defendant had communicated to him.

8. In the course of that consultation he was advised that his rights at common law had been restricted by ss44 and 45 of the Commonwealth Employees Rehabilitation and Compensation Act now known as the Safety Rehabilitation and Compensation Act 1988 (Cth) (Comcare Act).

9. The solicitor then notified the defendant that the plaintiff intended to exercise the limited right to damages conferred by s24 of the Comcare Act. That claim was lodged on 16 July 1993. The Comcare authority failed to respond.

10. On 15 February 1994, the solicitor wrote again seeking a decision on the application.

11. Then, on 9 March 1994, the High Court handed down its decision in Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297. That decision held that s44 was invalid insofar as it applied to a vested cause of action not then barred under any relevant limitation law.

12. I have held that s44 does not prevent a plaintiff who otherwise would be able to apply to extend the time bar, see Fitzgibbon v Commonwealth of Australia, unreported, Supreme Court, Australian Capital Territory, Higgins J, 11 October 1994, Clark v Robb and Liu formerly t/as Liu and Robb, Barristers and Solicitors, unreported, Supreme Court, Australian Capital Territory, Higgins J, 7 November 1994.

13. The question of the correctness of that approach is the subject of an application to the High Court. Its correctness has been supported by a decision of the Federal Court of Australia, Commonwealth of Australia v Robert John Mewett, Commonwealth of Australia v Michael John Rock, Commonwealth of Australia v Mark John Brandon, unreported, Full Federal Court, Sydney, Spender, Cooper and Lindgren JJ, 31 August 1995, being the decision the subject of that application.

14. The parties have asked me, therefore, at this stage, not to grant or refuse this application, but rather to rule whether, apart from the effect of s44 of the Comcare Act, an extension of the time bar would be "just and reasonable". That, of course, does not make irrelevant the role of the enactment of s44 to explain or excuse a failure to commence proceedings between December 1988 and 9 March 1994.

15. The time bar can be extended only it the plaintiff satisfies the court, pursuant to s36 of the Limitation Act, that it is "just and reasonable" to do so. That section is to be interpreted and applied consistently with the decision of the Federal Court in S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380.

16. Pursuant to subsection 36(3) Limitation Act, certain specific matters are to be considered. I will now refer to them with specific application to the plaintiff's circumstances.

(a) Length of and reasons for delay on the part of the plaintiff
17. The period between injury and 1 December 1988 is explained by the plaintiff's then lack of awareness of his legal rights. It is not a period of undue length. The limitation period expired on 26 May 1993. He did seek legal advice within that time. However, given the terms of the Comcare Act, he was properly advised that he had no right to sue at common law. That would have been the advice given had he sought advice at any time after 30 November 1988 and up until 9 March 1994.

18. There is then a period of delay until 23 September 1994 when the Writ of Summons herein was issued.

19. That delay is explained, in part, by the need for the plaintiff to become aware of the Georgiadis decision. That occurred on 29 July 1994. It was then necessary for him to seek counsel's advice to ensure that the apparent cause of action was worth pursuing.

20. That period of delay cannot be said to be unreasonable.

21. It is true, however, that it would have been more prudent for the plaintiff to have sought legal advice shortly after the initial treatment of his injuries.

Prejudice to the defendant
22. The defendant did not claim any specific prejudice.

Conduct of the defendant
23. There was no specific action or inaction of the defendant contributing to the delay.

Duration of the disability to the plaintiff
24. The plaintiff's injury is a serious one. That fact and the ongoing nature of the injury tends to support a view that it would be unjust to refuse to extend the bar.

25. On the other hand, there was no worsening or unmasking of disabilities such as would explain an earlier failure to take legal advice.

(e) Extent to which plaintiff acted promptly to assert action for damages
26. Certainly, the plaintiff acted promptly to assert his legal right to compensation under the relevant statute. However, he did not act promptly to seek to assert his common law rights.

27. Not every person will immediately be aware of their common law rights. There is nothing to suggest that the defendant had any practice of drawing to the attention of injured employees the possibility that they might have common law rights. It certainly would not have done so between 1 December 1988 and 9 March 1994. Of course, unions might offer advice, but an employee might not feel the need to consult aunion if the compensation rights, of which he or she was aware, were granted without dispute. In my opinion the plaintiff did not, being aware of his legal rights, deliberately choose to forgo them.

28. In the period following 1 December 1988 and before expiration of the time bar, the plaintiff did seek advice. However, as already noted, that advice reasonably expressed the opinion that the usual common law rights were excluded. The plaintiff acted reasonably promptly after becoming aware of the Georgiadis decision.

Steps taken to obtain advice
29. Those have been detailed above.

30. Balancing those matters and having regard to the role of the Comcare Act in deterring action between 1 December 1988 and 9 March 1993, I am satisfied that, if it was legally open to do so, it would be just and reasonable to extend the time bar so as to enable the plaintiff to maintain these proceedings.

31. I will hear the parties further in due course.