Limitation of actions - Application for leave to bring action - Whether substantive action hopeless because of absence of leave to commence action against deemed employer under former provisions of Workers' Compensation and Rehabilitation Act 1981

Limitation Act 1935

Workers' Compensation and Rehabilitation Act 1981

Workers' Compensation and Rehabilitation (Amendment) Act 1999

Baker v Shire of Albany (1994) 14 WAR 46

Bryce v Denclean & Telecom Australia, unreported; Application No 55/95; Conciliation and Review Workcover Western Australia; 24 July 1995

Keddis v Western Australian Railways Commission (1994) 11 SR (WA) 232

Textron Pacific Ltd v Collector of Customs (1987) 78 ALR 547

Chalmers v P&O Ports Ltd [2000] WADC 9

Dunn v Cleandustrial Cleaning Services Pty Ltd [2000] WADC 105

Farr v Shire of Manjimup, unreported; SCt of WA; Library No 930349; 15 June 1993

Musgrove v Minister for Transport [2000] WASCA 232

Templeton v Hamersley Iron Pty Ltd [2000] WADC 29

1 MARTINO DCJ: This is an application under s 47A(3) of the Limitation Act 1935 for leave to bring an action against the Metropolitan Health Service Board for damages for personal injuries alleged to have been suffered in an accident on 14 December 1994.

2 In 1994 the plaintiff worked as a laundry assistant employed by the Minister for Health. On 30 November 1994 the plaintiff and another employee of the Minister for Health were seconded to the Royal Perth Hospital's central sterile supply department for one month. These secondments were to cover the absences of employees of the hospital. The Metropolitan Health Service Board is the successor to the Board of Management of the Royal Perth Hospital.

3 The plaintiff claims that on 14 December 1994 she was pulling a trolley laden with linen when the momentum of the trolley pushed her backwards and she struck her lower back on the rubbish bin, sustaining injuries.

4 On 30 June 1998 the plaintiff commenced an application for leave to commence action against her employer under the former s 93D of the Workers' Compensation and Rehabilitation Act 1981. That employer was described as Healthcare Linen Pty Ltd but it is common ground that the employer correctly named is the Minister for Health. That leave was granted on 6 May 1999.

5 On 23 September 1999 the plaintiff commenced an action in respect of the alleged accident against the Minister for Health.

6 On 10 November 1998 the plaintiff's solicitors wrote to the Royal Perth Hospital enquiring whether the hospital was prepared to waive the requirements of s 47A of the Limitation Act. The plaintiff's solicitors wrote another letter on 17 November 1998.

7 No further action was taken by the plaintiff against the Royal Perth Hospital until around July 2000 when the defendant seems to have received some indication that action was to be commenced against the hospital. This appears from par 5 of the affidavit of Penny Itzstein sworn on 4 December 2000. Ms Itzstein is the claims manager at the Royal Perth Hospital. She has deposed that because no action was taken against the defendant in that period between 17 November 1998, when the plaintiff's solicitors wrote to the hospital, and July 2000 the defendant believed that no action would be taken against it and took no action to investigate the plaintiff's claim, nor did it have the opportunity to refer the plaintiff for medical examination.

8 This seems possibly not entirely accurate because in a letter from Mr Raithel, Senior Crown Solicitor, to the plaintiff's solicitors dated 20 September 2000 Mr Raithel has said that the plaintiff's solicitors' letter of 17 November 1998 had been passed on to him for advice and action on behalf of the Royal Perth Hospital. I do not know what advice was given or action taken by Mr Raithel.

9 In that letter dated 20 September 2000 Mr Raithel had said that before the Royal Perth Hospital was required to respond to the letter, an application by originating summons was commenced by the plaintiff against Healthcare Linen or the Minister for Health. Presumably that was the originating summons for leave under s 93D of the Workers' Compensation and Rehabilitation Act 1981, which had in fact been commenced on 30 June 1998 before the correspondence of November 1998.

10 In broad terms the defendant raises two reasons why I should not grant leave under s 47A of the Limitation Act 1935. The first is that it contends that it is deemed to be the plaintiff's employer by s 175 of the Workers' Compensation and Rehabilitation Act 1981 and by reason of the amendments made to that Act by the Workers' Compensation and Rehabilitation (Amendment) Act 1999 the plaintiff is unable to commence action against the defendant because she cannot now satisfy the requirements of s 93E of the Act.

11 The second reason put forward by the defendant is that it would be materially prejudiced in its defence of an action by the plaintiff by reason of the plaintiff's failure to comply with the requirements of s 47A of the Limitation Act 1935.

12 The test to be applied by me in considering the first ground was explained by Heenan CJDC in Keddis v Western Australian Railways Commission (1994) 11 SR (WA) 232. The plaintiff need not establish that she has a prima facie case but she must establish that her case has some prospect of success and is not hopeless. There are several reasons why I am not satisfied that the plaintiff has satisfied this test.

13 For the defendant to be deemed to be the plaintiff's employer for the purposes of s 175 of the Workers' Compensation and Rehabilitation Act 1981, the work on which the plaintiff was employed at the time of the alleged accident would have to have been directly a part or process in the trade or business of the hospital: s 175(3). There are two reasons why that requirement may not have been satisfied in this case. The first is that the Royal Perth Hospital is a public hospital carrying out a public service providing health and hospital care. It is arguable that it is not carrying on any trade or business.

14 Secondly, even if the hospital is carrying on a trade or business, it is at least arguable that the plaintiff's work as a laundry assistant was not directly a part or process of that trade or business: Textron Pacific Ltd v Collector of Customs (1987) 78 ALR 547; Bryce v Denclean & Telecom Australia, unreported; Application No 55/95; Conciliation and Review Workcover Western Australia; 24 July 1995. Both cases are noted in CCH Australia Workers' Compensation Guide, vol 1 par 48260.

15 Even if the hospital was deemed to be the plaintiff's employer by s 175 of the Workers' Compensation and Rehabilitation Act 1981, it does not necessarily follow that the plaintiff must comply with Pt IV Div 2 of the Workers' Compensation and Rehabilitation Act 1981 to commence an action against the defendant. That is because s 93B provides that the Division applies to the awarding of damages against a worker's employer independently of the Act. The defendant, it is at least arguable, is not the plaintiff's employer independently of the Act and so it is at least arguable that the requirements contained in Pt IV Div 2 to the Act do not apply to the claim that the plaintiff proposes to bring. For these reasons I am satisfied that the plaintiff's proposed action is not hopeless.

16 As to the issue of prejudice, the test to be applied is as set out in Baker v Shire of Albany (1994) 14 WAR 46. The defendant carries the initial evidentiary onus. The ultimate onus rests on the plaintiff. I have concluded that the defendant has not satisfied the onus on it.

17 The reasons for that conclusion are:

(1) The defendant has not informed me of when it became aware of the plaintiff's alleged accident and what steps if any it took to investigate it on becoming so aware.

(2) Although in her affidavit sworn on 4 December 2000 Ms Itzstein has deposed that the defendant took no action to investigate the claim in response to the plaintiff's solicitors' letter dated 17 November 2000 in fact that letter was referred to Mr Raithel for advice and action. The defendant has not informed me what advice or action Mr Raithel took or what were the results of that advice or action.

(3) The Minister for Health and the Metropolitan Health Service Board have the same solicitors acting for them and so all the information that the solicitors for the Minister for Health have that is relevant to this action is available to the Metropolitan Health Service Board.

18 For these reasons I am satisfied that the defendant is not materially prejudiced in its defence of an action by the plaintiff by reason of the plaintiff's failure to comply with s 47A of the Limitation Act 1935 and that it is just to grant to the plaintiff leave to bring an action against the defendant.