The Court of Appeal decision of Thomas Peacock & Sons
Pty Ltd v Abreu  WASCA 19 was handed down earlier this
month confirming that the 3 year limitation period for commencing
an action for damages imposed by the Limitation Act 2005
(WA) does apply in conjunction with the restraints imposed by the
Workers' Compensation and Injury Management Act 1981
In this regard, the Court of Appeal of the Supreme Court of
Western Australia held that although the 31 August 2011 version of
Section 93K(4) of the Compensation Act imposed a 30 day time frame
in which to file a writ of summons (after the Director has given
written notice of the registration that an election to retain
damages has been made), it was not a limitation provision which
ousted the application of the Limitation Act.
The Court of Appeal highlighted that the purpose of Division 2
Part IV of the Compensation Act is to impose constraints on the
award of damages against employers by employees who are injured in
the course of their employment.
Alternatively, it was noted that the Limitation Act is directed
at giving effect to parliamentary intention where a balance has
been struck between the interests of the respective parties. The
learned Justices went on to explain that the limitation period
ensures a plaintiff has a reasonable opportunity to bring their
action for damages, whilst also ensuring a defendant does not have
a claim hanging over its head indefinitely or subject to an
unreasonable delay which may prejudice the defence of the
In accordance with the purpose of the common law division of the
Compensation Act, this decision serves as a useful reminder to
workers and their solicitors that they must take relevant steps by
a certain time in order to avoid unduly prolonging the process of
seeking an award of damages at common law.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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