Abreu v Thomas Peacock & Sons Pty Ltd
2012 WADC 31
Keen DCJ delivered 12 March 2012
The plaintiff, Mr Abreu, issued a writ claiming damages some 2 months after the third anniversary of the date of an alleged incident in the course of his employment with the employer Thomas Peacock & Sons Pty Ltd (the defendant). By conventional reasoning, he was therefore out of time, and statute barred in relation to the cause of action.
The plaintiff had pleaded that an incident had occurred at work on 29 May 2006, which had led to the injury for which he claimed damages.
The defendant pleaded that on the basis of s14 of the Limitation Act 2005, the action was statute barred due to the effluxion of time.
In support of his claim that the action was not statute barred, the plaintiff raised a number of arguments, including the argument that the operation of the Limitation Act was ousted by s93K of the Workers Compensation and Injury Management Act 1981 (Compensation Act). By imposing a regime on claimants by way of the requirement to obtain an assessment of a relevant level of impairment, to elect by the termination date and to issue a writ with a stipulated period, the plaintiff argued, the Compensation Act was a "limitation provision" for the purpose of s9 of the Limitation Act.
The plaintiff's counsel argued that "it is unlikely that Parliament would have imposed another layer of complexity upon the Limitation Act, and that s9 of the Limitation Act, coupled with s93K of the Compensation Act has the effect of ousting the provisions of the Limitation Act under s14."
His Honour Judge Keen found that s93K did operate as a limitation provision and accepted the plaintiff's submission. The result was that the defendant's plea under s14 was not an answer to the plaintiff's claim, and the plaintiff was at liberty to proceed to trial.
His Honour acknowledged the novelty of the issue before him and went on to make findings in relation to the other arguments that had been advanced by the plaintiff in the alternative. Those arguments were not successful.
However, the effect of His Honour's decision was to determine that s93K of the Compensation Act established a period of limitation by reference to the termination date and the obligation to issue a writ within 30 days of the registration of the election. That was to be regarded as the only period of limitation with respect to the issuing of a writ of summons and the Limitation Act was inapplicable.
We understand His Honour's decision is under appeal.
Note also, that since the amendment of Compensation Act last year to remove the reference to a 30 day period within which a writ was required to be issued following the registration of the election, that Act no longer imposes a period of limitation relative to the commencement of proceedings for damages.
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