District Court of WA – Kent v Mullally [No 2]
 WADC 37, His Honour O'Neal DCJ
Heard 14 -16 December 2015 and 27 January 2016
The headnote of this case states – Advisors'
negligence – Workers' compensation advisor failed to
ensure plaintiff's common law action was commenced in time
– Action statue barred – Loss of chance –
Causation – Value of plaintiff's lost opportunity –
The Civil Liability Act 2002 s 5B and s 5K, The
Limitation Act 2005 (WA), The Occupational Healthand Safety Act 1984 s 20 and The Mines Safety and
Inspection Act 1994 are considered in the decision.
The plaintiff was working as a scaffolder for Thiess Pty Ltd on
a project for Alcoa Australia Ltd (Alcoa) at
Pinjarra Refinery. On 13 December 2005 he was injured while
"working in the hazardous conditions that then existed on
The defendants owned the business 'Work Claims
Australia' and as His Honour wrote "...purported to act on
behalf of people seeking workers' compensation". In
January 2006 the plaintiff consulted the defendants about his
workers' compensation claim and entitlements. The first
defendant agreed to act for him in relation to his workers'
compensation claim against Thiess Pty Ltd.
The plaintiff received workers' compensation payments and as
his injuries were significant and ongoing he wanted to make a claim
for common law damages against both Thiess and Alcoa. His Honour
found that "...in mid-2008 the plaintiff was led to believe by
the first defendant that the defendants would assist him in
advancing his common law claim" however His Honour also
observed that the plaintiff "...was never advised of the
existence or the effect of the three year limitation period for
On 12 December 2008 the common law action against Alcoa became
statute barred by operation of the Limitation Act 2005
As a result the plaintiff sued the defendants for damages
arising from his loss of his opportunity to bring a common law
action against Alcoa. His claim against the defendants alleged
breaches of a duty to exercise reasonable care, skill and
diligence, both in negligence and in contract.
His Honour stated at paragraph 7 of the judgement –
"The only issues remaining for me to decide are:
whether Alcoa breached its duty of care to the plaintiff;
whether there was contributory negligence on the part of the
whether the defendants' negligence caused the plaintiff
the measure of the plaintiff's loss and damage arising from
his injuries and the defendants' breach of duty, if
Many matters were the subject of admissions or concessions
before and during the trial and the defendants did not appear and
give evidence and they filed a written undertaking to submit to the
result of the trial and any resultant orders.
After hearing evidence and carefully considering the facts and
the law His Honour ordered the defendants pay damages to the
plaintiff amounting to $484,837 comprising future medical treatment
$42,876, loss of earning capacity $366,961 and general damages
$75,000 plus costs and interest.
This decision contains an interesting and detailed consideration
of the legislation noted above, the facts and circumstances of the
injury, the workplace and arrangements and the negligence
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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