The Court of Appeal decision of Thomas Peacock & Sons Pty Ltd v Abreu [2013] 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 (WA).
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 action.
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.
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