Graeme Mason v Murray's Charter Coaches and Travel Services Pty Limited [1997] ACTSC 96 (25 November 1997)

SUPREME COURT OF THE ACT

GRAEME MASON v. MURRAY'S CHARTER COACHES AND TRAVEL

SERVICES PTY LIMITED
No. SC 343 of 1997
Number of pages - 4
Limitations - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

LIMITATIONS - extension of time - industrial injury in 1989 in New South Wales - plaintiff applies for worker's compensation to NSW Compensation Court in 1995 - plaintiff sues for damages in the ACT in 1997 - Limitation Act 1987 makes NSW law as to limitation apply - Workers Compensation Act 1987 (NSW), sub-s.151D(2) fixes limitation period of three years from injury and allows "a court" to extend time - no evidence plaintiff entitled to damages for non-economic loss in NSW - plaintiff's entitlement to compensation for economic loss being pursued in NSW - in comparable case NSW court would not extend time - application refused.

LIMITATIONS - extension of time - application governed by NSW limitation law - Workers Compensation Act 1987 (NSW), sub-s.151D(2) - prejudice to defendant - hardship to plaintiff - other factors relevant to discretion - whether just to extend time - it is not.

DAMAGES - conflict of laws - application in ACT to extend time to sue - damages at trial assessed under law of forum - ACT Limitation Act provides questions to be decided by lex loci delicti - court in loci delicti (NSW) would refuse application to extend time - no right to damages demonstrated under lex loci delicti - application in ACT refused.

Workers Compensation Act 1987 (NSW), s.151D

Limitation Act 1985, ss.56 and 57

Limitations (Amendment) Act No. 91 of 1994

Workers' Compensation (Amendment) Act 1991 (NSW)

Service and Execution of Process Act 1992 (Cth)

Jurisdiction of Courts (Cross-Vesting of Jurisdiction) Act 1993

Mutual Recognition Act (Australian Capital Territory) 1992

Workers' Compensation Act 1951

Motor Accidents Act 1988 (NSW), sub-s.52(4)

Constitution, s.118

Mutual Recognition (Australian Capital Territory) Act 1992

Breavington v. Godleman and Others [1988] HCA 40; (1988) 169 CLR 41

Pye v. SCI Operations Pty Limited t/as Smorgon Arc (unreported, Supreme Court of the ACT, Higgins J., 25 September 1997)

McIntosh v. Southern Meats Pty Ltd (unreported, Supreme Court of the ACT, Higgins J., 26 February 1996) at 19

Salido v. Nominal Defendant (NSW) (1993) 32 NSWLR 524

Martin v. Molluso Enterprises Pty Limited (unreported, Supreme Court of the ACT, Higgins J., 13 October 1994)

HEARING

CANBERRA, 31 October 1997 (hearing), 25 November 1997 (decision)

25:11:1997

Appearances

Counsel for the plaintiff: Mr. R. Crowe

Solicitors for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr. G. Lunney

Solicitors for the defendant: Hunt & Hunt

ORDER

Order: The motion be dismissed.

DECISION

MILES CJ

This is an application on notice of motion to extend the time in which the plaintiff may sue the defendant for damages arising out of injury occurring whilst he was employed as a bus driver by the defendant. Although denied in the defence filed, it is common ground that his duties included driving buses between Canberra and Sydney and that whilst so employed on 3 April 1989 he fell on the floor of the shower room of the defendant at Waterloo in New South Wales, thus sustaining injury to his lower back, left elbow, neck and buttocks. He was paid compensation (together with associated out-of-pocket expenses) under the provisions of the Workers Compensation Act 1987 of New South Wales (NSW Workers Compensation Act) for the period from 11 April 1989 until his return to work on 31 July 1989.

The plaintiff caused a writ to be issued out of this Court on 13 May 1997. A statement of claim was attached to the writ. Apart from the conventional allegations, it claimed that the defendant did not ensure that the floor of the shower room (which was painted with a gloss paint) did not become wet after rain and that the floor was clean and free of water and grease. The defendant's grounds of defence include a defence that the plaintiff's claim is statute barred under the Limitation Act 1985 (the Limitation Act). In response to that ground of defence the notice of motion was filed on 29 September 1997.

Sections 56 and 57 of the Limitation Act provide as follows:

"Characterisation of limitation laws

56. If the substantive law of another place being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.

Exercise of discretion under limitation law

57. Where a court of the Territory exercises a discretion conferred under a limitation law of a place being a State, another Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place."

These provisions came into effect on 30 November 1993. They do not apply to proceedings already commenced on that date (Limitations (Amendment) Act No. 91 of 1994) but otherwise they apply to causes of action arising both before and after that date. It was submitted, and does not appear to be in dispute, that, notwithstanding the curious terms of s.56, the relevant principles as to choice of law are as follows. First, it is the substantive law of New South Wales (the lex loci delicti) that is to "govern the plaintiff's claim" (Breavington v. Godleman and Others [1988] HCA 40; (1988) 169 CLR 41). Secondly, in accordance with s.56 it is the limitation law of New South Wales that is to be applied for the purposes of the present application. Thirdly, the discretion to lift the limitation bar and extend the time in which the plaintiff may sue in this Court is to be exercised by this Court in the same manner as that discretion is exercised in comparable cases by the New South Wales courts. Higgins J., in Pye v. SCI Operations Pty Limited t/as Smorgon Arc (unreported, Supreme Court of the ACT, 25 September 1997), held that s.56 of the Limitation Act "though inappropriately expressed" has the effect of applying, under the law of this Territory, the limitation law of the place within which the cause of action arose "as if the action had been commenced in that jurisdiction" (at 4). See also Higgins J. in McIntosh v. Southern Meats Pty Ltd (unreported, Supreme Court of the ACT, 26 February 1996) at 19.

It is also agreed that the relevant limitation law of New South Wales is to be found in the NSW Workers Compensation Act. Section 151D of that Act provides in part as follows:

"Time limit for commencement of court proceedings against employer for damages 151D ....

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."

The period of limitation of three years from the date on which the worker's injury was received is extended by s.151W which provides that, for the purposes of s.151D, in the case of "an injury received before the date of assent to the Workers' Compensation (Amendment) Act 1991 (NSW), the injury is to be taken to have been received on that date". The date of assent was 26 March 1991. Accordingly, the date on which the plaintiff's alleged cause of action against the defendant became statute barred in New South Wales was 26 March 1994 (cp. Pye v. SCI Operations Pty Limited t/as Smorgon ARC in which it was held that sub-s.151D(2) does not apply to a cause of action accruing before the commencement of that sub-section.)

The obvious and threshold question that the application raises is: Why does not the plaintiff seek to have the limitation bar lifted in New South Wales and sue in New South Wales? After all, he was injured in New South Wales and he has lived at Koorawatha, about 200 kilometres from Canberra, and elsewhere in New South Wales, for many years. The answer, says Mr. Crowe, for the plaintiff, is that, on the one hand, the plaintiff has been the victim of changes and confusion in the law of New South Wales which have diminished his rights to damages for work-related injuries, but on the other hand, has the right to sue in this Court and to claim the benefit of other changes, if not of the law, then of the "climate of litigation" in Australia which has occurred over the years since the plaintiff's injury. These changes, according to the submission, reject the notion that there is any significance in the venue chosen by the plaintiff and reflect the lack of importance attached now to the fact that a plaintiff chooses to sue in a jurisdiction other than that in which the alleged wrong doing of the defendant has occurred. Among the factors which Mr. Crowe submits contribute to the different climate are the Service and Execution of Process Act 1992 (Cth) (removal of the nexus previously required between the cause of action and the State or Territory in which action is brought) and the decision of the High Court in Stevens v. Head [1993] HCA 19; (1993) 176 CLR 433 (plaintiff's right to have damages assessed according to law of the jurisdiction of choice). To these factors may be added the Jurisdiction of Courts (Cross-Vesting of Jurisdiction) Act 1993 and its Commonwealth, State and Northern Territory counterparts (the Federal Court, Family Court and any Supreme Court may exercise jurisdiction of any other such court or may transfer proceedings to any such other court if in the interests of justice) and the Mutual Recognition Act (Australian Capital Territory) 1992 and its Commonwealth, State and Northern Territory counterparts (any legal practitioner admitted anywhere in Australia may practise anywhere else in Australia).

Mr. Lunney for the defendant, on the other hand, submitted that the steps already taken by the plaintiff to recover compensation are of importance. In 1990 the plaintiff's solicitor advised him that his interests were better served by pursuing his entitlement to a lump sum under the NSW Workers Compensation Act than by "electing" to pursue a claim for damages in that State. The advice was repeated in March 1992. The plaintiff kept notifying his solicitor of changes of address, but the fact that the limitation period for commencing an action for damages expired on 26 March 1994 seems to have escaped unnoticed for some considerable time. On 24 April 1995 counsel advised that the plaintiff should pursue his worker's compensation rights in New South Wales before considering commencing an action for damages. The plaintiff, on that advice, commenced proceedings in the Compensation Court of NSW claiming weekly compensation and a lump sum allegedly due to him under the NSW Workers Compensation Act. There were various inconclusive exchanges between solicitors for the parties much of which had to do with the identity of the insurer of the defendant. It was not until April 1997 that the applicant received legal advice from counsel that he had a possible alternative course of suing in the ACT. Presumably he was advised at that late stage that any claim made in the ACT was liable to be defeated by a plea that his claim was statute barred. Notwithstanding the statutory bar, the writ was issued and it is to the date of the issue of the writ that the extension is sought. So, says Mr. Lunney, since the plaintiff still has rights available to him under the NSW Workers Compensation Act and indeed under the Workers' Compensation Act 1951 of this Territory (where the contract of service was made), he has not discharged the burden of showing that it is fair and just that the time be extended.

A power similar to that under s.151D of the NSW Workers Compensation Act is conferred by sub-s.52(4) of the Motor Accidents Act 1988 (NSW). Guidelines for the exercise of the power under the latter provisions were laid down by the Court of Appeal in New South Wales in Salido v. Nominal Defendant (NSW) (1993) 32 NSWLR 524. Higgins J., in Martin v. Molluso Enterprises Pty Limited (unreported, Supreme Court of the ACT, 13 October 1994), held that the Salido guidelines apply in an application to an extension of time brought in the ACT for commencement of proceedings in the ACT for damages arising out of a motor accident in New South Wales and after the expiry of the time limited by sub-s.52(4) of the Motor Accidents Act (NSW). I agree.

The three judgments in Salido lay down guidelines only and although each set of guidelines is expressed in different terms, it is well arguable that none of the sets of guidelines is in essence different from the others.

The basic and most obvious principle is that it must be fair and just to extend the time. Hardship to the plaintiff if the extension is refused and prejudice to the defendant if the extension is granted are both relevant. I deal first then with prejudice. There is no doubt that the defendant is prejudiced by the delay beyond what might be presumed by the lapse of time itself. The defendant has shown positively that despite efforts the people who cleaned the shower block where the plaintiff fell can no longer be located. The defendant, presumably, has no means of showing by means of evidence what steps were taken to keep the floor of the shower block safe, or more generally, that in relevant respects the defendant took reasonable care to provide the plaintiff with a safe system of work or a safe place of work. But, submits Mr. Crowe, the plaintiff also faces such problems of proof. The plaintiff is unlikely to be able to respond positively to precise questions put to him about the exact circumstances of his injury or the condition of the premises where it occurred. On Mr. Crowe's submissions, the defendant was on notice that the plaintiff had a claim for work-related injury as early as the date on which it occurred. There is in evidence a "personal incident report" signed on behalf of the defendant by a Mr. Jones indicating that the plaintiff reported the incident at 0600 hours, and complained of "sore buttocks/arm and lower spine". That part of the report which appears to be completed by the employee reads "went for shower, slipped on greasy floor". Furthermore, worker's compensation together with certain medical expenses was paid on the defendant's behalf until the plaintiff resumed work on 31 July 1989, which payment, it is submitted, implies an admission on the defendant's behalf that the plaintiff was injured in the way he alleges and that the defendant knew of the circumstances of injury.

What makes the position of the applicant plaintiff in the present case distinctive (although probably far from unique) is the "on again off again" history of entitlement to damages for work-related injury in New South Wales. The plaintiff's solicitor practises in the ACT and must be presumed to have at least a working knowledge of relevant laws in New South Wales (Constitution, s.118, Mutual Recognition (Australian Capital Territory) Act 1992). But even a practitioner experienced in New South Wales workers' compensation law and procedure would have found it difficult to advise a client as to the relative opportunities and advantages relating to the numerous aspects of workers' compensation and to "common law" damages in New South Wales and in the ACT over the period since the plaintiff's injury. No consideration appears to have been given to the option of applying for an extension of time in New South Wales for the purpose of then suing in the ACT, or, indeed, in any other jurisdiction which still permits an action for damages for work-related injury.

In answer to my enquiry as to what hardship would flow to the plaintiff if the extension of time to sue were not granted, Mr. Crowe was frank in acknowledging that he could not demonstrate that the plaintiff would be denied more than the component of damages referable to pain and suffering and loss of enjoyment of life (these days often referred to as "general damages"). Hence it could not be shown that the plaintiff's loss of earning capacity, both past and future, would not be compensated for by an award of payments of weekly compensation in the proceedings already commenced in the NSW Compensation Court. Mr. Crowe acknowledged further that other components of an award of damages such as out-of-pocket expenses, Griffith v. Kerkemeyer expenses and the Fox v. Wood component are especially provided for in the New South Wales workers' compensation legislation. However, Mr. Crowe submitted, the plaintiff with a claim for damages has a prime facie right to proceed to obtain judgment for a lump sum for damages on the principle that it is obtained once and for all. In the particular case, it was submitted that such judgment, in putting an end to whatever rights the plaintiff had to worker's compensation, would also put an end to the uncertainty whether the worker's compensation insurer would continue to accept liability in the future, and an end to the fear that investigators and inquiry agents would be watching the plaintiff's every move and that ultimately judgment for damages would allow him to put the injury as far as possible behind him and get on with his life.

These are powerful arguments, but ultimately I am confidently, if not comfortably, persuaded that the provisions of the New South Wales legislation do not lead to the conclusion that it is "just" that the application be granted. If, before commencing proceedings for workers' compensation in New South Wales, the plaintiff had brought proceedings in New South Wales seeking to have the time extended in that State to bring an action for damages, I have no doubt that the extension would have been refused. This would have been so not only for considerations already discussed, but also on the ground that in the light of Part 5 Division 3 of the NSW Workers Compensation Act the plaintiff had not shown that he was entitled to damages for non-economic loss, and that in respect of economic loss he has an alternative remedy by way of workers' compensation. The plaintiff, in my view, can be in no stronger position by issuing a writ in the ACT and then seeking an extension of time to the date of the issue of the writ in order to avoid the effect of the law of New South Wales as the lex loci delicti. This Court must exercise the discretion to extend the statutory bar as it would be exercised in a comparable case by a New South Wales court and there is no evidence that he is entitled to non-economic loss damages in a New South Wales court for the injury he sues on. In respect of damages for economic loss, he still has equivalent rights to workers' compensation in New South Wales. He has commenced proceedings in the Compensation Court and he ought to continue them. He has not demonstrated to my satisfaction that justice requires that the limitation period laid down by the New South Wales law be extended so that he can pursue his claim to have damages assessed under the law of the Australian Capital Territory. It is not just that the extension be granted.

I should add in conclusion that no point was taken that the term "court" as it is used in s.151D of the NSW Workers Compensation Act is a court in New South Wales and that the limitation law of New South Wales as it applies to a person entitled to worker's compensation under the NSW Workers Compensation Act does not permit an application for extension of time to sue an employer to be brought in a court outside New South Wales.

For the reasons given, the motion will be dismissed. Unless the parties wish to be heard, I propose to order that the applicant plaintiff pay the respondent defendant's costs.