Alcock v Casey [2007] ACTSC 87

1. A declaration that the claim in these proceedings was filed within time.
2. In the alternative, a declaration that the Defendant be estopped from pleading a statutory bar to the claim.
3. An order pursuant to Section 78(1) of the Civil Law (Wrongs) Act 2002 (ACT) that the Defendant remedy non-compliance with Part 5.2 of the Civil Law (Wrongs) Act 2002 (ACT).

**2. As the first declaration sought, the plaintiff relies upon the provision in s 32 of the Limitation Act which provides that if, before the end of the limitation period, the person against whom the cause of action lies confirms the cause of action, then the period before that confirmation does not count in the reckoning of the limitation period.

3. If the plaintiff wishes to proceed in respect of the two other declarations, the plaintiff accepts that there needs to be put before the Court certain matters in correspondence between the parties which related to without prejudice negotiations that had taken place. Section 131 of the Evidence Act 1995 (Cth) provides that evidence is not to be adduced of a communication relating to attempts to negotiate a settlement of a dispute unless the persons in dispute consent. The material which the plaintiff would seek to rely upon is said by the defendant to fall within such a category. In the absence of there being consent given by the defendant in this matter, s 131 prohibits evidence being adduced of communications of that nature. The parties suggested that I make an order under r 1521(1) of the Court Procedures Rules 2006 (ACT) to decide a question separately; the question being as to whether the plaintiff is entitled to the declaration set out in the amended originating claim that the claim in these proceedings was filed within time. By confining the matter to that issue, it seemed to me not necessary to order that the procedure for setting out separate questions in r 1521(3) of the Court Procedures Rules be undertaken and that I should deal with the matter by answering, at this stage, whether the plaintiff is entitled to the first declaration sought in the amended originating claim. In order to answer this question, and again, with the consent of the parties, I received an index of documents that would otherwise have been exhibited to affidavits and which excluded the without prejudice correspondence of the parties to which the defendant has objected.

4. The plaintiff claims that the defendant's response to the plaintiff given under Civil Law (Wrongs) Act 2002 (ACT) amounts to a confirmation of the plaintiff's cause of action and that s 32 of the Limitation Act applies so that the period before that confirmation is not to be counted in the reckoning of the limitation period.

5. The Civil Law (Wrongs) Act 2002 (ACT) contains provisions designed to promptly resolve claims. Section 61 of that Act places obligations on claimants and respondents to that claim. It provides:**

61 Respondent must attempt to resolve claim

_(1) A respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 6 months after the day the respondent receives a complying notice of claim) - _

(a) take any reasonable steps necessary to find out about the accident claimed to have given rise to the personal injury to which the claim relates; and

_(b) give the claimant written notice stating - _

(i) whether liability is admitted or denied; and

(ii) if contributory negligence is claimed - the degree of the contributory negligence expressed as a percentage; and

(c) if the claimant made an offer of settlement in the notice of claim - tell the claimant whether the respondent accepts or rejects the offer; and

(d) if the claimant did not make an offer of settlement in the notice of claim - invite the claimant to make a written offer of settlement; and

(e) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and

_(f) either - _

(i) make a written offer, or counteroffer, of settlement to the claimant setting out in detail the basis on which the offer is made; or

(ii) settle the claim by accepting an offer made by the claimant.

_(2) If a notice of claim is not a complying notice of claim, a respondent is taken to have been given a complying notice of claim when - _

(a) the respondent gives the claimant written notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or

(b) the court makes a declaration that the claimant has remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance.

(3) An offer, or counteroffer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer's possession or control that may help the person to whom the offer is made make a proper assessment of the offer.

(4) A respondent or claimant to whom a written offer, or counteroffer, of settlement is made must, unless a response to the offer is to be made under subsection (1) (c), respond in writing to the offer within the period prescribed by regulation after the day the respondent or claimant receives it (or, if no period is prescribed, within 3 months), indicating acceptance or rejection of the offer.

_(5) An admission of liability by a respondent under this section - _

(a) is not binding on the respondent in relation to any other claim; and

(b) is not binding on the respondent at all if it later appears the admission was induced by fraud.

6. In the present case, by letter dated 4 November 2005 and received on 8 November 2005, NRMA Insurance sent a letter to the plaintiff's solicitors in these terms:

I refer to your letter dated 26 October 2005 and I confirm NRMA Insurance is the insurer for the respondent, Andrew Casey.

I confirm your client has provided all information required under the Civil Law (Wrongs) Act 2002 in the complying notice of claim and the notice is accepted by NRMA Insurance.

The enquiries into the circumstances of the accident are now complete and we admit our insured has breached their duty of care to your client.

If you have in your possession any documents, medical or otherwise, that you intend to rely on, then please provide copies to me within 7 days of the date you receive them as required by the Act.

The letter then went on to seek documents and information from the plaintiff in express reliance upon s 64 of the Civil Law (Wrongs) Act 2002.

**7. It is plain that the letter from the insurer gave effect to the requirement in s 61(1)(b) of that Act to give a claimant written notice stating whether liability was admitted or denied.

8. Thereafter, there was an exchange of correspondence including the insurer arranging a doctor's appointment and providing a consequential report. The plaintiff's solicitors then obtained a further medical report in October 2006. On 26 February 2007, the insurer wrote to the plaintiff's solicitors noting that:**

... the limitation period expired on the 20 December 2006. Please advise what you intend to do.

Your client will need to seek the leave of the court in order to pursue this claim.

**9. The limitation period referred to in the letters applying at the relevant time is that set out in s 16B of the Limitation Act. Section 36 of the Limitation Act provided a general power for a court to extend the period within which an action on the cause of action involving personal injuries (which includes causes of action) may be bought. However, amendments consequential upon the enactment of the Civil Law (Wrongs) Act provided that the section cease to apply to claims to which s 16B of the Limitation Act applies (see s 36(5) of that Act which was inserted by the Civil Law (Wrongs) Amendment Act 2003 (No 2) ACT. There is now no power that enables a court to extend this period for a claim under s 16B and the advice given by the insurer to this effect is simply incorrect. Certainly had there been such a power, the plaintiff, having regard to the matters set out in s 36(2) of the Limitation Act, would be said to have had a strong case for the court to have ordered the period to be extended.

10. However, the plaintiff says that he can rely upon s 32 of the Limitation Act, having regard to the letter sent by the insurer to his solicitors on 4 November 2005. Section 32 provides:**

(1) If, after a limitation period fixed by or under this Act for a cause of action begins to run but before the end of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For this section -

(a) a person confirms a cause of action if, but only if, he or she -

(i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made; or

(ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in relation to the right or title of the person to whom the payment is made; and

(b) a confirmation of a cause of action to recover interest on principal money operates also as a confirmation of a cause of action to recover the principal money; and

...

(4) An acknowledgement for this section shall be in writing and signed by the maker.

(5) For this section, a person has the benefit of a confirmation if, but only if, the confirmation is made to him or her or to a person through whom he or she claims.

**11. It seems clear to me that the admission by the insurer in that letter dated 4 November 2005 admitting that their insured had breached his duty of care, is capable of amounting to an acknowledgement of the right of the plaintiff to the cause of action which the plaintiff seeks to maintain.

12. Mr Erskine, who appeared as counsel for the defendant, is prepared to accept that this admission by the insurer was "technically capable" of amounting to confirmation under s 32 of the Limitation Act. However, his submission is that by the enactment of the Civil Law (Wrongs) Act and by the fact of the consequential and contemporaneous amendments that were made to the Limitation Act, s 61(1)(b)(i) of the first mentioned Act should be given a construction that a notice in writing stating that liability is admitted, given under that subsection, should not be taken as an acknowledgement so as to invoke s 32 of the Limitation Act.

13. Mr Erskine relies upon s 139(1) of the Legislation Act 2001 (ACT). That provision provides the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. Based upon that section, and by reference to Kingsleys Chicken v Queensland Insurance Commission [2006] ACTCA 9 and Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, Mr Erskine submits that it is possible to give a purposive interpretation to the Civil Law (Wrongs) Act and to construe s 61(1)(b)(i) of that Act in its reference to liability being admitted as not being a confirmation of a cause of action for the purposes of s 32 of the Limitation Act.

14. I have previously commented upon the problem of actually ascertaining the purpose of the legislation in particular cases (Capital Property Projects (ACT) Pty Ltd v Planning & Land Authority [2006] ACTSC 122, 15 December 2006 at [23]). The comment is particularly applicable to this case. I note also the comments made recently by Gleeson CJ in respect to matters of purposive construction. In Carr v The State of Western Australia [2007] HCA 47, 23 October 2007 at [5], he said:**

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

**15. As best I understand the submission put in this case, it proceeds from the proposition that the Civil Law (Wrongs) Act regulates the procedures to be used in cases before a claimant can litigate claims for personal injury. In combination with the amendments that were made to the Limitation Act, limitation periods were generally significantly shortened by the legislature. In addition, the court's power to extend limitation periods in such cases was also generally removed. That leads to a legislative purpose which would exclude the lengthening of a limitation period. However, that analysis does not, to my mind, inevitably mean that the remedial purpose behind the legislative amendments that gave rise to provisions of the nature of s 32 of the Limitation Act is necessarily to be put to one side or to be given no effect on whatever limitation period the legislature determines upon.

16. It is pertinent to have regard to some of the background to what is now s 32 of the Limitation Act. In 1984, the working paper of the Commonwealth Attorney-General's Department, Proposals for the Reform and Modernization of the Laws of Limitation in the Australian Capital Territory; Working Paper, Canberra, April 1984 recommended that the law in New South Wales relating to confirmation of actions be adopted in the Territory (see par 195). In particular, the provision referred to, s 54 of the Limitation Act 1969 (NSW), was enacted following a report from the New South Wales Law Reform Commission being the First Report on the Limitation of Actions, LRC 3, October 1967. I have regard to the comments that were made by the Commission about the English case of Lubovsky v Snelling [1934] 1 KB 44 which forms the basis for the Commission's recommendation on this aspect. The Commission commented as follows (at Appendix C, 128, [251]):**

... There, [in Lubovsky v Snelling] an insurer dealing with a claim under the Imperial Fatal Accidents Acts admitted liability to the plaintiff and negotiated on the measure of damages. While the negotiations were going on the limitation period ran out and, an action being brought, the defendant, on the instructions of the insurer, pleaded the statutory bar. The Court of Appeal, incensed at the conduct of the insurer, found on slender evidence an agreement not to rely on the expiry of the limitation period and held that the defence failed. It is hard to see why the plaintiff's action was not one for the breach of a contract not to rely on the expiry of the limitation period. However that may be, the case may be regarded as a step towards the development of a common law doctrine of acknowledgment of claims to unliquidated damages analogous to the common law doctrine of acknowledgment of debts. If so, the case is an episode which supports the view that the legislature ought to make the statutory doctrine of acknowledgments apply as well to claims for unliquidated damages as to debts.

17. The Commission went on to say (at Appendix C, 128, [252]) that:

Instances can be multiplied, but it is enough for us to say that, in our view, considerations both of fairness and of simplicity justify extending to all the causes of action for which the Bill would fix periods of limitation the rules as to acknowledgment and part payment.

18. Further, the Commission said (at Appendix C, 128, [253]):

... we think that an acknowledgment, likely as it must be to encourage the claimant to defer taking proceedings, will in general not be given carelessly and, if given carelessly, should be the occasion of loss to the person giving the acknowledgment rather than to the claimant.

**19. It is clear from this Report that the provision in the Limitation Act which gives effect to the recommendations arising from it, does not extend limitation periods set in the Act. Rather, they confirm that a plaintiff's actions may give rise to a cause as to when the period fixed limiting the time for taking proceedings commences. The provision is directed towards determining the fair and just point from which the limitation period should run where a party has acknowledged the cause of action before the expiry of a limitation period in respect of that cause of action.

20. So understood, it does not seem to me to be open to say that the purpose of the Civil Law (Wrongs) Act has any effect on this particular provision in the Limitation Act. The relevant purpose of the Civil Law (Wrongs) Act set out in the Explanatory Memorandum to the Bill was that of "establishing a regime for a neutral evaluation of cases common, with the view to quicker and cheaper resolution of disputes". I can find nothing in the Explanatory Memorandum or any other extrinsic aid which indicates a legislative purpose to circumscribe the effect of s 32 of the Limitation Act.

21. However, Mr Erskine submitted that from the fact that the Civil Law (Wrongs) Act was enacted in response to the Review of the Law of Negligence Report 2002, commissioned by the Commonwealth Government (the Ipp Report), I could infer a legislative purpose that an admission of liability under 61(1)(b)(i) should be construed as not being a confirmation of a cause of action for the purposes of s 32 of the Limitation Act.

22. In my view, the Ipp Report (supra) does not support such a submission. I was referred to 71 para 6.2 where it is noted:**

6.2 It has been said that there are four broad rationales for the enactment of limitation periods. These are:

• (a) As time goes by relevant evidence is likely to be lost.
• (b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it occurred.
• (c) It is desirable for people to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them after a certain time.
• (d) The public interest requires that disputes be settled as quickly as possible.

23. Reference is made to the "bewildering array of different limitation regimes in Australian jurisdictions" (at 72). The report then says (at 72-73):

Accordingly, any sensible reform of the law relating to claims for personal injury or death arising out of negligence should include limitation rules that, as far as possible, are of general application and have nationwide effect.

It is desirable that the limitation periods relating to all actions of this kind, irrespective of the formal causes of action on which they are based, should be the same. This effect will be achieved if the Proposed Act makes it plain that all claims for negligently caused personal injury or death are governed by the limitation provisions proposed in this chapter.

**25. The references to which I refer are concerned with the limitation period not with its commencement or the effect of an acknowledgement in respect of it. The Ipp Report goes on to consider when the limitation period should commence. No attention is given to the issue of acknowledgement although that is a common, if not consistent, feature in all the legislation of the States and Territories dealing with limitation periods.

26. In the Australian Capital Territory (s 32, Limitation Act 1985), New South Wales (s 54, Limitation Act 1969) and the Northern Territory (s 41, Limitation Act 1981), at the time of the Ipp Report, there were provisions for confirmation by acknowledgment of a cause of action which applied in personal injury matters. Western Australia enacted such a provision in s 46 of their Limitation Act 2005. The other States had the concept of acknowledgement (and part payment) for other causes of action, but not for personal injury matters.

27. The fact that the Ipp Report makes no reference to these matters makes it difficult to detect any intention in this report to affect this aspect of the law in its application to limitation periods. That being so, I am unable to find that the purpose contended for by Mr Erskine was that intended by the Ipp Committee, much less that of the Legislative Assembly when it enacted the Civil Law (Wrongs) Act. I am not prepared to construe that Act with a qualification that would not have s 32 of the Limitation Act apply to it.

28. One other matter may be noted. Section 61(1)(b)(i) of the Civil Law (Wrongs) Act gives a respondent to a claim the choice of either admitting or denying liability. A denial of liability will not invoke s 32 of the Limitation Act. The choice is open to a person obligated to comply with the provisions of s 61 of the Civil Law (Wrongs) Act. If the choice is made to accept liability, the matters which comprise the bulk of the rationales referred to in para 6.2 of the Ipp Report will have been satisfied. I see no reason at all why the choice to admit liability in accordance with the procedures under the Civil Law (Wrongs) Act should not invoke what has long been considered to be the remedial effect of provisions like s 32 of the Limitation Act.

29. A declaration should be made in the terms generally sought by the plaintiff, although I would make it with reference to the particular circumstances of this matter. I would declare that, in regard to the letter of 4 November 2005, which was received by the plaintiff on 8 November 2005, that letter confirms the plaintiff's cause of action for the purposes of s 32 of the Limitation Act.

30. I will hear the parties on any consequential orders that they may seek.**

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.