Barancewicz v Davies [2011] ACTSC 4 (31 January 2011)

Last Updated: 7 February 2011

BELINDA ANNE BARANCEWICZ v DAMIEN DAVIES

[2011] ACTSC 4 (31 January 2011)

LIMITATION OF ACTIONS – Limitation Act 1985 (ACT) – s 16A – whether applicable to action by a plaintiff entitled to claim workers’ compensation benefits from her employer against an unrelated tortfeasor – section applicable – court has power to extend time under s 36 – extension granted

Limitation Act 1985 (ACT)

Road Transport (General) Act 1999 (ACT)

Workers Compensation Act 1951 (ACT)

Workers Compensation Amendment Act 2001 (ACT)

Driscoll v Iron Mountain Australia Pty Ltd [2010] ACTSC 127

No. SC 198 of 2010

Judge: Master Harper

Supreme Court of the ACT

Date: 31 January 2011

IN THE SUPREME COURT OF THE )

) No. SC 198 of 2010

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BELINDA ANNE BARANCEWICZ

Plaintiff

AND: DAMIEN DAVIES

Defendant

ORDER

Judge: Master Harper

Date: 31 January 2011

Place: Canberra

THE COURT ORDERS THAT:

1. the period within which this action may be brought be extended so as to end on 19 March 2010.

2. the defendant’s costs of the application be paid by the plaintiff.

3. those costs not be recoverable until final orders are made in the action.

1. This is an application to extend a limitation period in an action for damages for personal injury arising out of a motor vehicle collision.

2. The plaintiff claims that she was injured when the car she was driving was struck from behind by a car driven by the defendant on 13 March 2007 at Dickson. She commenced the action on 19 March 2010, six days out of time. The defendant has pleaded the bar. On 26 November 2010, the plaintiff applied for an extension of the limitation period to the date proceedings were commenced.

3. The application is opposed on its merits, and also on the ground that the court has no power to grant an extension on the facts of the case.

4. The collision occurred at 6:00pm. The plaintiff was on her way home from work. She made a claim for workers’ compensation from her employer, Southern Cross Channel Ten Television, which was accepted by the employer’s insurer, CGU Insurance Ltd. That company met the claim and has paid some or all of the plaintiff’s treatment expenses.

5. The plaintiff has not sworn or affirmed an affidavit explaining her delay in commencing proceedings within time. This will normally be expected by the court. The defendant should be in a position to test the plaintiff’s assertions. However, in this case the delay was minimal and the defendant’s principal opposition to the application is founded on the jurisdictional issue.

6. The affidavit in support of the application has been sworn by a solicitor employed by the firm acting for the plaintiff. He says that the plaintiff sought legal advice from another solicitor at the firm on 16 November 2009. She said that she had thought that her workers’ compensation claim “covered all of her legal rights arising from the accident”. The plaintiff completed a claim notification form approved under section 225 of the Road Transport (General) Act 1999 (ACT) which was sent to the defendant’s third-party insurer on 21 December 2009. The insurer wrote to the solicitors two days later saying that according to their information the defendant’s vehicle had been uninsured on the day of the accident so that the appropriate defendant was the Nominal Defendant. The solicitors served a claim form on the Nominal Defendant on 7 January 2010. The Nominal Defendant replied by letter on 11 January 2010 acknowledging that it was the proper respondent, and asking for particulars. These were furnished on 17 March 2010. The solicitor swearing the affidavit deposes that proceedings were commenced on 19 March 2010 and served on the Nominal Defendant on 29 April 2010. On 10 June 2010 the Nominal Defendant informed the plaintiff’s solicitors that it had ascertained that on the day of the accident the responsible vehicle had borne traders’ plates and had been insured for third-party purposes.

7. Inconsistently with the affidavit, the court file reveals that the proceedings were brought on 19 March 2010 against the present defendant, not against the Nominal Defendant. The plaintiff’s solicitors applied on 11 June 2010 to join the Nominal Defendant. This application was withdrawn by consent on 20 September 2010, by which time it was apparently clear to all concerned that the defendant’s vehicle was insured.

8. It is clear from the affidavit that the plaintiff instructed her solicitors prior to the end of the limitation period. She bears no personal responsibility for the delay. The affidavit by the solicitor contains no explanation as to how the solicitors failed to commence proceedings within the limitation period. I infer that this was by oversight, but the failure to provide an explanation, in circumstances where the solicitors were instructed some four months before the end of the limitation period, and told the date of the accident at that time, will in the normal course call for an explanation. Again, in the present case the delay between expiry of the limitation period and the commencement of proceedings was so short that the failure to provide the explanation can be overlooked.

9. I am satisfied that the failure to commence proceedings within the limitation period has resulted in no prejudice to the defendant or his insurer, that there is no impediment to a fair trial of the action, and that if the court has power to do so, an order should be made extending the limitation period. The question is whether the court has such a power.

10. Until 2001, the Limitation Act 1985 (ACT) provided in section 11 a general rule that an action on a cause of action was not maintainable if brought after the end of a limitation period of six years. Since then there have been two relevant amendments to the Act. Section 16A was inserted in 2001, with effect from 1 July 2002. That section is in the following terms:

16A 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.

11. In 2003, section 16B was added to the Act. There were originally six subsections to section 16B. Subsections (3)-(6) were repealed with effect from 23 December 2005. The section is in the following terms:

16B Other claims for damages for personal injury

(1) This section applies 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.

(2) The cause of action is not maintainable if brought –

• (a) if the injury is or includes a disease or disorder – 3 years or more after the day the person injured first knows –
  • (i) that the person has suffered an injury that is or includes a disease or disorder; and

  • (ii) that the injury is related to someone else’s act or omission; or

• (b) in any other case – 3 years or more after the day the injury happened.

12. From its introduction the Act included a power in the court to extend a limitation period, conferred by section 36. The section gives the court the power to order that the period within which an action may be brought be extended for such period as the court determines, if the court decides that it is just and reasonable to do so. The section sets out a number of non-exclusive considerations the court must take into account in determining such an application. The power may be exercised notwithstanding that the limitation period has ended before application is made, and notwithstanding that an action has already been begun.

13. In 2003, concurrently with the introduction to the Act of section 16B, a subsection (5) was added to section 36, providing that the section does not apply in relation to a cause of action to which section 16B applies. The combined effect of sections 16A, 16B and 36(5) is that the court retains a general power to extend a limitation period in a personal injury claim with the requisite nexus to the Workers Compensation Act 1951 (ACT), but not otherwise.

14. Generally section 16A actions have been actions brought by an employee against an employer for injury in the course of the employment. There is no doubt that there is still a power to extend time in such actions. In contrast, actions with no connection to the employment relationship, including actions for damages for personal injury arising out of the typical motor vehicle collision, are barred if not brought within the three-year limitation period, the court having no power to extend time.

15. The question which arises for determination on the present application is whether section 16A applies to an action by a person injured on the way to or from work, in circumstances entitling that person to workers’ compensation benefits, by the negligence of a tortfeasor other than the employer.

16. Probably not surprisingly, the issue was not considered when section 16A was inserted in the Act. The provision which achieved that insertion was the Workers Compensation Amendment Act 2001 (ACT), which brought in a number of amendments to the Workers Compensation Act itself. The explanatory memorandum to the amending Act does not cast any light on the issue I am required to determine. The explanatory memorandum said that the proposed changes “focussed on reshaping the current ACT workers’ compensation scheme from one which is based on entitlement, to one which is based on rehabilitation, and return to work.”. Amendment of the scheme, it was said, would “bring it into line with modern injury management focussed workers’ compensation schemes” [sic]. The balance of the explanatory memorandum referred to the desirability of early settlement of disputes by mediation or arbitration. It is apparent that the disputes referred to were claims under the Workers Compensation Act itself, not to claims under the general law.

17. A parallel point arose for decision by Gray J in Driscoll v Iron Mountain Australia Pty Ltd [2010] ASTSC 127. The facts were somewhat different. The plaintiff in that case had been injured in two accidents, one in 1999 and the other in September 2003, both in the course of his employment with the same employer. The 2003 injury was sustained while the plaintiff was loading a truck, which raised the question of dual insurance. The third-party insurer of the truck was joined as a defendant. The plaintiff had commenced proceedings outside the six-year limitation period applicable to the 1999 injury, and more than three years after the 2003 injury. He sought a declaration that the proceedings in respect of the second injury had been brought within time, in effect a declaration that the applicable limitation period for the second injury was the six-year period under section 11 of the Limitation Act 1985 (ACT) (both injuries had happened before section 16B was inserted in the Act). The plaintiff’s argument was that the claim arising out of the second injury should be treated as a cause of action against the registered owner of the motor vehicle rather than against the employer so that section 16A did not apply. It was common ground that the plaintiff had, within days of the 2003 injury, made a claim for workers’ compensation and received benefits under that claim.

18. Gray J determined that the claim in respect of the second injury was governed by section 16A and declared accordingly. It was not to the point to characterise the facts constituting the cause of action as a work accident or a road accident. That designation might be descriptive of the facts but the consequence arising from those facts, namely personal injury, was the only right that was infringed. The claim for damages for personal injury arose from the same facts whether those facts were described as constituting a workers’ compensation claim or a road accident claim. The facts constituted the cause of action for the purposes of 16A and had the characteristics required by the section.

19. Counsel for the plaintiff submitted that the criteria were not made out because the plaintiff had in fact made a claim for workers’ compensation which had been paid. Gray J held that the section was directed to what constituted the cause of action. The fact of whether a claim for workers’ compensation had been made was of no relevance to the determination.

20. Written submissions were made by counsel for the three parties as to whether the subsequent insertion of section 16B into the Act had any effect on the interpretation of section 16A. Gray J held that it did not.

21. Driscoll, unlike the present action, was a claim by an employee against his employer. The claim for compensation under the Workers Compensation Act 1951 (ACT) was between the same parties as the claim for damages under the general law. As far as I have been able to ascertain, this is the first time a question has arisen for determination as to the applicability of section 16A where the claim for damages for negligence is against a tortfeasor other than the employer. I agree with (and would be obliged to follow even if I did not) the decision of Gray J to the effect that the section applies whether or not a claim under the Workers Compensation Act 1951 (ACT) has been made.

22. I am satisfied that the plaintiff’s cause of action against the defendant is a cause of action which relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951 (ACT). I am further satisfied that a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 (ACT) if notice of the injury had been given as required under that Act. The latter conclusion must follow from the fact that such a claim has been made and accepted. It is not to the point that the respondent to the workers’ compensation claim is a different entity to the defendant in the present action.

23. I am satisfied that section 16A applies to the cause of action. The limitation period is accordingly three years. The action was commenced out of time, but the court has power under section 36 of the Limitation Act 1985 (ACT) to grant an extension of the limitation period. I am satisfied that it is just and reasonable to do so. I order that the limitation period be extended to 19 March 2010.

24. As to costs: the plaintiff comes to the court asking for an indulgence. The general rule is that a party in such a position must pay the costs of the application whether or not the indulgence is granted. It is perhaps unfortunate for this plaintiff that she has come to the court to ask for the determination of a point which has not previously arisen for decision, perhaps adding to the costs of the application, but that is not sufficient reason to depart from the general approach. The plaintiff will be ordered to pay the costs of the application. Having regard her position as an individual, and that of the defendant as the insured under a third-party policy, I shall order that those costs not be recoverable until final orders are made in the action.

25. Although the plaintiff did not instruct her solicitors until towards the end of the limitation period, it seems to me that she gave them instructions in sufficient time for them to have commenced proceedings prior to the end of the limitation period. Whilst I do not propose to reflect this in my orders, it does seem to me that it would be appropriate for the solicitors rather than the plaintiff to absorb the costs which have been necessitated by this application, and that it would reflect poorly on the profession if the plaintiff herself were ultimately to be out of pocket in that regard.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 31 January 2011

Counsel for the plaintiff: Mr F M G Parker

Solicitors for the plaintiff: Slater & Gordon

Counsel for the defendant: Mr R L Crowe SC

Solicitors for the defendant: DLA Phillips Fox

Date of hearing: 10 December 2010

Date of judgment: 31 January 2011