ACTACTCA

Casey v Alcock [2009] ACTCA 1

[2009] ACTCA 1

Court of Appeal (ACT)|2009-01-23|Before: Co P

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Court of Appeal (ACT)

Decision date

2009-01-23

Before

Co P

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Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

ANDREW CASEY v RICHARD LUKE ALCOCK

[2009] ACTCA 1 (23 January 2009)

LIMITATION OF ACTIONS – tort – negligence – personal injury – whether statement admitting liability made for purposes of meeting statutory obligation to give written notice stating whether liability is admitted or denied constitutes confirmation of cause of action such that period of time prior to statement being made does not count in reckoning of limitation period – whether statement involuntary where made pursuant to statutory obligation

Held: statement not involuntary where made pursuant to statutory obligation – leave to appeal refused.

LIMITATION OF ACTIONS – tort – negligence – personal injury – whether statement admitting liability made for purposes of meeting obligation to give written notice stating whether liability is admitted or denied constitutes confirmation of cause of action such that period of time prior to statement being made does not count in reckoning of limitation period – whether legislative introduction of obligation to give written notice stating whether liability is admitted or denied resulted in implied repeal or should result in reading down of existing statutory provision relating to confirmation of cause of action – nature of inconsistency between Acts that gives rise to repeal or reading down – policy or purpose of legislation – nature of approach to statutory construction – relevance of Review of the Law of Negligence Report (“Ipp Report”), explanatory statement and debates in Legislative Assembly

Held: no inconsistency between Acts that has resulted in implied repeal or should result in reading down – leave to appeal refused.

Casey v Alcock [2009] ACTCA 1 | Case summary | Zoe

This is an application for leave to appeal against a decision of Gray J declaring that the plaintiff’s asserted cause of action arising out of a motor vehicle accident on 20 December 2003 was not barred under the Limitation Act 1985 (ACT) (the Limitation Act), notwithstanding that action was not commenced until 1 May 2007.
Section 16B of that Act provides that an action is not maintainable if commenced more than three years after the accrual of the cause of action. However, s 32 of that Act also provides that if, before the limitation period expires, the “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 confirmation does not count in the reckoning of the limitation period …”.
The Civil Law (Wrongs) Act 2002 (ACT) (the Civil Law (Wrongs) Act), by s 61, places on a respondent to a proposed claim an obligation to attempt resolution of that claim. That includes giving the claimant: 61(1)(b) … written notice stating – (1) whether liability is admitted or denied;
In response to that obligation, the defendant insurer, on 4 November 2005, wrote to the plaintiff’s solicitors as follows: The enquiries into the circumstances of the accident are now complete and we admit our insured has breached their (sic) duty of care to your client.
His Honour observed in his reasons for judgment that (at [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.
In my opinion, that proposition is unanswerable. The contrary contention is clearly untenable. It would also be unjust. Any rational person would construe the response of the insurer as an affirmation to the right of the claimant to damages to be assessed. A contrary response would instil in a plaintiff the need urgently to act. As it is, the plaintiff would reasonably assume that there was no contest on the existence and continued validity of the asserted cause of action.
Mr Robinson SC, for the applicant, however, contends that such a result, according as it does to justice and the plain language of s 32, should, nevertheless, not be affirmed. The legislature enacting s 61(1)(b) and (f) (in particular) should be regarded as intending that an admission made in compliance with those provisions should be excluded from the notion of a ‘confirmation’ under s 32 of the Limitation Act.
Nothing in the Explanatory Memorandum or the text of the amending legislation supports that proposition. Whilst it may be accepted that one purpose of the amendments to the Civil Law (Wrongs) Act was to get actions commenced early it is another thing to say it proposed that actions be commenced unnecessarily. If a claim be accepted why should it need to be litigated if no dispute has arisen?
As Gray J pointed out, the applicant is not obliged to admit liability. However, even if the applicant, obliged to respond, could not in good faith do otherwise than admit liability, that, it seems to me, advances the purpose of the statute rather than impeding it.
I find no merit in the applicant’s arguments. I would dismiss the application and refuse leave to appeal with costs.

I have had the advantage of reading the comprehensive and clear reasons of Besanko J and respectfully agree with them and the orders his Honour proposes.
In particular, I would expressly join with him in doubting that the Court of Appeal in Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9 intended to equate s 139(1) of the Legislation Act 2001 (ACT) or s 30(1) of the Human Rights Act 2004 (ACT) (as it stood at 4 November 2005) with s 3(1) of the Human Rights Act 1998 (UK) to the extent that the former sections authorised or required a court to take the type of approach taken by the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557 to the construction (or, one might respectfully suggest, the re-interpretation) of legislation.
If that is wrong then, I, too, would respectfully decline to follow the observations of that Court set out by his Honour.
I would, however, wish to add some remarks of my own about four matters. Human Rights
While the applicant relied on s 30 of the ACT Human Rights Act only for the analogy with s 3(1) of the UK Human Rights Act and the suggestion that the latter and the force given it by the UK courts should be applied to s 139(1) of the Legislation Act; that section of the ACT Human Rights Act did, at the relevant time, require the courts to prefer an interpretation that is consistent with human rights.
The court then needs to ensure that, in this case, it is obeying that legislative ukase.
The European jurisprudence makes it clear that a limitation period is not inconsistent with article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, (entered into force 3 September 1953): Stubbings and Ors v United Kingdom (1997) 23 EHRR 213. (Article 6 is in relevantly similar terms to ss 21 and 22 of the ACT Human Rights Act, though with the added obligation to decide cases “within a reasonable time”.)
Indeed, as if to emphasise the consistency, the UK Human Rights Act itself, within s 7, includes a limitation period for the commencement of proceedings under it against a public authority, alleging that it has acted in a way which is incompatible with a Convention right, and the period is a relatively short one, namely one year (although with the possibility of an extension).
In Canada, where some limitation statutes have been struck down, this has been because the statute was discriminatory in the effect and application of the limitation between potential applicants (Suche v R (1987) 37 DLR (4th) 474) or by favouring particular defendants, such as municipalities (Streng v Winchester (Township) (1986) 56 OR (2d) 649). These cases relied on the right to equal access to the courts under s 1(b) of the Canadian Bill of Rights and s 15(1) of the Canadian Charter of Rights and Freedoms, similar to s 8(3) of the ACT Human Rights Act. That is not relevant in this case.
If there were any issue of human rights involved in this case, then a closer analogy would be with Goode v Martin [2002] 1 All ER 620. There, the female claimant for compensation for personal injuries suffered severe head injuries, resulting in pre-accident amnesia. She was dependent on others to tell her what happened in the accident. She made a claim and pleaded a version of the accident with particulars of negligence. The defendant filed a defence containing, for the first time, the defendant’s account of how the accident happened, which was completely at odds with the complainant’s version and a quite different version of the facts.
After the expiry of the limitation period, the complainant filed an amended statement of claim putting her claim also on an alternate basis, that being founded on the version of events pleaded by the defendant. The defendant opposed the claimant’s application to amend, relying on a rule which permitted amendments after the expiry of the limitation period “only if the new claim arises out of the same facts or substantially the same facts … already claimed”. The two versions of facts were, as noted, quite different.
The Court of Appeal held that it would have been possible on an orthodox construction of the rule to reject the complainant’s amended statement of claim because of the expiry of the limitation period. Relying on the UK Human Rights Act, however, and particularly s 3(1) and the force given it by the House of Lords in R v A [2002] 1 AC 45 at [44], not dissimilar to the approach in Ghaidan v Godin-Mendoza, the Court of Appeal permitted the claimant to amend her statement of claim.
Unfortunately, the court did not expressly identify the human right to be protected, but it would be reasonable to suppose from its reasoning that it was the right to access to a fair and public hearing under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedom, made applicable by s 1 of the UK Human Rights Act.
Accordingly, if there is any ambiguity or other uncertainty about the construction of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) and its interaction with the Limitation Act 1985 (ACT), then a construction that favours access to the courts would, on this authority, be preferred. The construction given to s 61 of the Act by the Learned Primary Judge is, therefore, consistent with the human rights enumerated in the ACT Human Rights Act. Policy of the Legislation
The applicant also relied heavily on what he says is the legislative intent of Pt 5 of the Act, namely to encourage early settlement. This intent, he says, is supported by an implied exclusion from the effect of s 32 of the Limitation Act of a notice under s 61(1)(b) of the Act and which, therefore, creates a single, clear and, relevantly, non-extendable limitation period for all claims and all claimants.
The applicant’s approach is, effectively, that the limitation period has an absolute primacy in itself which overrides other considerations. It does not seem to me that the structure of the legislation supports that conclusion nor does the relevant extrinsic material.
There are a number of ways in which the applicant’s approach could have been achieved if the legislature had intended it. The admission made in a notice under s 61(1)(b)(i) of the Act where liability is admitted could have been protected along the lines of what is known as “without prejudice privilege”: Rodgers v Rodgers (1964) 114 CLR 608 at 614. The legislature is familiar with such an approach and has made such provision in, for example, s 9 of the Mediation Act 1997 (ACT). In this regard, I note that in his presentation speech, the Attorney-General specifically referred, at p 2247 of the ACT Legislative Assembly Hansard of 24 June 2003, to mediation in the context of the amendments now under consideration. The legislature did not take this option.
The legislature, also, did not expressly give any indication that such an admission should not amount to a confirmation for the purposes of s 32 of the Limitation Act as it could easily have done.
The applicant says, however, that one must infer this from the purposes of the legislative provisions. In my view, that takes too mechanistic a view of the purposes of the provisions and does not address the real policy imperatives behind them.
The thrust of the legislation is that personal injuries claims should be resolved quickly and this is referred to time and time again in all the extrinsic material: see p 3 of the Explanatory Statement for the Civil Law (Wrongs) Amendment Bill 2003 (ACT); par 6.1 of the Department of The Treasury, Review of the Law of Negligence Final Report, Canberra, 2002 (the Ipp Report); p 2247 of the ACT Legislative Assembly Hansard of 24 June 2003; p 3002 of the ACT Legislative Assembly Hansard of 21 August 2003.
The scheme envisaged by the legislation is that before an injured party can commence court proceedings, he or she must give notice of a claim, which is required by s 51(2) to contain prescribed information. That information is relatively comprehensive and it is worth setting out the relevant part of the Civil Law (Wrongs) Regulation 2003 (ACT), s 4(3), which prescribes it. It is as follows: The following information about the accident claimed to have given rise to the personal injury to which the claim relates is required: (a) the date, time and place of the accident; (b) details of how the accident happened; (c) if appropriate, a diagram showing, to the best of the claimant’s knowledge, the scene of the accident; (d) if known that the police, ambulance, fire brigade or any other emergency service attended the accident - (i) that fact; and (ii) if known, the name of the service or services that attended the accident; and (iii) if known, the name and contact details of the person or people who attended the accident for the service; (e) if known, the name, address and telephone number of anyone who has given a witness statement; (f) if known, the name, address and telephone number of the person or people (if any) who were, in the claimant’s opinion, responsible for causing the accident (apart from the respondent); (g) if a seatbelt or helmet was required under the Road Transport (Safety and Traffic Management) Act 1999 – whether it was being worn as required when the accident happened.
The respondent who receives such a notice is then required, inter alia, to advise whether it needs further information to decide whether it is properly a respondent (s 52(1)(b)) and to state whether it considers the claim is a non-complying notice and identify any alleged non-compliance (s 54(2)(b)). It is then given six months within which it must give the claimant a written notice stating whether liability is admitted or denied (s 61(1)(b)(i)).
This seems to be a fair way to bring such a claim to a head quickly and thereby comply with the expressed purposes of the provisions as noted above. The complaint is accompanied by significant information; the respondent is not obliged to accept it if it is inadequate as non-compliant; if it is adequate, the respondent is given a reasonable time to investigate and to determine whether it can, in good faith, admit liability or not.
That must be in the interests of both parties and assist early resolution of claims.
It is, of course, only if liability is admitted, that the notice under s 61(1)(b)(i) of the Act could become a confirmation for the purpose of s 32 of the Limitation Act. If so, does this undermine the concept and purpose of the strict three year limitation period?
The purposes of limitations periods, which have been part of the court system for a very long time (the earliest recorded statute of limitation in England being the Statute of Merton 1235 (UK), 20 Hen 3 c 1) are variously described.
The limitation regime balances the need for finality in civil litigation with the justice of permitting individuals to pursue their claims in the courts: Brunton v O’Bryan & Co Pty Ltd (NSWCA, Kirby P, McHugh and Clarke JJA, 307/86, 4 August 1988, unreported). It balances the inevitable prejudice that any delay produces for a defendant with the right of a plaintiff to access to the courts: Donovan v Gwentoys Ltd [1990] 1 All ER 1018 at 1022 - 1023.
There seem to be three broad purposes of limitation provisions, with some variants, and these have been expressed in a variety of ways. They focus on the plaintiff, the defendant and the administration of justice.
On the one hand, limitation provisions are designed to apply to parties who have good causes of action which they could, if they wished, enforce, by depriving them of the power of enforcement if they have lain by and omitted to enforce them: Cholmondeley v Clinton & Ors (1820) 2 Jac & W 1 at 140; 37 ER 527 at 577; Board of Trade v Cayzer Irvine & Co Ltd [1927] AC 610 at 628; R B Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81. Thus, the courts should not assist those “who go to sleep upon the claims”: Archie v Archie; Smythe (Third Party) [1980] Qd R 546 at 559. The provisions are intended to encourage the prompt pursuit of claims: Cox & Ors v Morgan (1801) 2 Bos & Pul 398 at 412; 126 ER 1349 at 1357; Cartledge and Ors v E Jopling & Sons Ltd [1963] AC 758 at 782; New South Wales Medical Defence Union Ltd v Crawford (1993) 31 NSWLR 469 at 488 - 489; Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530.
Secondly, the provisions are designed to protect parties who may be the subject of claims from having to face claims long after the cause of action arose: Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at 563. Thus, the statutes of limitations are sometimes referred to as “statutes of repose”: Doe & Durore v Jones (1791) 4 TR 301 at 308; 100 ER 1031 at 1035. It is said “long dormant claims have often more of cruelty than of justice in them”: A’Court v Cross (1825) 3 Bing 329 at 332-3; 130 ER 540 at 541; Biss v Lambeth, Southwark and Lewisham Health Authority [1978] 2 All ER 125 at 131.
In particular, persons who might be the subject of claims ought to be able so to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552.
Then, of course, such persons may suffer actual prejudice as memories fade and evidence is lost so that they are no longer effectively able to defend such claims: Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704.
Thirdly, the administration of justice will suffer if claims are not brought promptly: Brisbane South Regional Health Authority v Taylor. As evidence is lost, it makes it harder for both plaintiff and defendant to secure an accurate (and, therefore, fair and just) result: White and Anor v Parnther and Anor (1829) 1 Knapp 179 at 227; 12 ER 288 at 205. In addition, it is difficult for a court to apply the same values and standards as those applying at the time the events occurred if the litigation is much delayed and this may result in additional unfairness.
It does not seem to me that accepting an admission of liability under s 61(1)(b)(i) of the Act as a confirmation of the cause of action for the purposes of the Limitation Act undermines any of these purposes. The applicant has given prompt notice of the claim and the respondent has been given not only early and clear notice of it but also extensive information about the incident, together with information and time that the respondent can use to investigate on its own behalf and take such steps as may be appropriate to preserve the evidence. The evidence can be preserved and made readily available for any court hearing.
Indeed, if an admission of liability is fairly made, then none of this may even be necessary, since the question of liability will effectively thereby be determined by admission and the only issue in any proceedings commenced thereafter would be the amount of damages, if any, to be recovered by the claimant. I address this further in my fourth point.
Although on somewhat different legislative provisions with some practical differences, the comments by Williams JA in the Queensland Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 at 391 are nevertheless apposite: Pursuant to the provisions of the Motor Accident Insurance Act potential defendants are made fully aware of the nature of the claim once the notice pursuant to division 3 is given. In a broad sense proceedings are commenced against the licensed insurer on the giving of notice pursuant to division 3 of the Act. Thereafter a potential defendant is not likely to be prejudiced by the loss of evidence. The remaining principle underlying the limitation statute which needs to be enforced is that a good cause of action should be prosecuted diligently.
The latter point is, of course, met by the limitation period which remains the relatively short period of three years (though now from the giving of the notice) and from which there can be no extension.
Accordingly, the acceptance of liability by notice under s 61(1)(b)(i) of the Act does not undermine the principles underpinning the limitations regime. Indeed, it meets the purpose of encouraging early settlement admirably and effectively as well as assisting in avoiding the disadvantages that a limitations regime seeks to avoid. The Ipp Report
The applicant further seeks to support the construction for which he contends by suggesting that the legislature in the relevant amendments of the Act was “enacting Ipp Recommendation 24”, referring to Recommendation 24 of the Ipp Report and that this recommendation requires his proposed construction.
It is simply not correct to say that the legislature enacted this recommendation. The Attorney-General, in his presentation speech, did say that the Civil Law (Wrongs) Amendment Bill was “based on the recent national reviews on insurance and tort law reform” which included the Ipp Report. Nevertheless, the Attorney expressly rejected two fundamental areas of the Ipp Report, though they are not relevant for present purposes.
In referring to the amendments to the statute of limitations, the Attorney did not refer to the Ipp Report.
Though clearly based on it, the actual amendments are materially different from those proposed in Recommendation 24. In particular, they did not uniformly use the “date of discoverability” as the commencement of the limitation period but only for diseases or disorders. Additionally, the amendments actually made did not address the Ipp Report’s proposal about a “long stop” provision.
It must also be said that the Ipp Report was entirely silent on whether a confirmation, such as under s 32 of the Limitation Act, should apply or not. The Report does refer to the date when the limitation period should commence. It could be said that, by its reference to a particular date for commencement of that period (the date of discoverability), it thereby rejected any later date such as created by confirmation under s 32. The fact is, however, that this was simply not addressed.
The Report did discuss various options for the date when the limitation period should commence. The four discussed all related to the occurrence of the event causing damage, the date the damage occurred or when it was discovered. This might be called the primary starting date. What might then be called a secondary date, such as afforded by a confirmation under s 32 of the Limitation Act, is simply not discussed, even by necessary implication. The Report is simply silent on this issue.
In my view, it cannot be said that the silence of the Report on this issue must imply one view or another about the issue. Indeed, given the nature of such a Report, it would be appropriate to conclude that its failure to mention the issue merely means that the Panel simply did not address it.
In my view, the Ipp Report is of no assistance in the task confronting the court in this case. Admission by duty
The applicant also argued that the admission made under s 61(1)(b)(i) of the Act, was made in the performance of a duty, which must be accepted, and that it, therefore, was for “a particular and restricted purpose, and was not intended to be of wide-ranging effect”.
This was made even clearer in the applicant’s reply when the applicant asserted that a refusal of leave by this court would “in substance, have … determined” its defence in relation to liability.
This seems to suggest that a respondent could admit liability as required under s 61(1)(b)(i) of the Act and then, if proceedings are commenced, deny liability in those proceedings. That seems quite contrary to s 61(5) of the Act.
Whilst it practically could do so, I see no basis in the legislative provisions nor in the extrinsic material for suggesting that the claimant, by then the plaintiff in proceedings, could not rely on the admission to prove liability in such proceedings.
All the respondent has to do is respond in good faith under s 61 of the Act; its duty is not to admit liability when it is not liable nor when there is a real issue about liability to be determined.
Nor does the regime prevent concurrent “without prejudice” negotiations or offers of settlement being made under the cover of such privilege, where, for example, liability is denied.
In my view, the thrust of the legislation is, indeed, to give the notice under s 61(1)(b)(i) of the Act a very effective role: to determine liability promptly or to let the complainant know that he or she must commence proceedings within 3 years from the date of the accident. In these senses, it does, in fact, have “wide-ranging effect”. Conclusion
Accordingly, my view is that neither the Human Rights Act 2004 (ACT), nor the policy underpinning the Civil Law (Wrongs) Act 2002 (ACT), nor the Ipp Report, nor the fact that any admission of liability is made under a duty to make it, requires or, indeed, really supports the construction for which the applicant contends.
As I note above, I agree that the application for leave to appeal should be dismissed with costs. I certify that the preceding paragraphs numbered eleven (11) to sixty-five (65) are a true copy of the Reasons for Judgment herein of the Honourable Justice Refshauge.

This is an application for leave to appeal from an order made by a judge of this Court.
The applicant was driving a motor vehicle in Canberra on 20 December 2003 when he was involved in a motor accident. The respondent was a passenger in the vehicle and he claims he suffered injuries as a result of the accident. The respondent lodged a personal injury claim form with the applicant’s compulsory third party insurer, NRMA Insurance Australia Limited (“NRMA”), on or about 30 January 2004. Thereafter, there was correspondence between the respondent and NRMA during 2004. It is not necessary for me to set out the details of this correspondence. Some time in early 2005 the respondent instructed solicitors and thereafter they corresponded with NRMA on the respondent’s behalf. Both parties had obligations under the Civil Law (Wrongs) Act 2002 (ACT) (“Civil Law (Wrongs) Act”) and those obligations were the subject of correspondence between them during 2005. I will outline those obligations later in these reasons.
On 4 November 2005, NRMA wrote to the respondent’s solicitors, asking for medical reports dealing with the respondent’s injuries and other information the respondent was required to give to the applicant under s 64 of the Civil Law (Wrongs) Act. In the letter NRMA said: 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 inquiries into the circumstances of the accident are now complete and we admit our insured has breached their [sic] duty of care to your client.
On 1 May 2007 the respondent issued proceedings in this Court against the applicant claiming damages for the personal injuries he suffered in the accident. Those proceedings were issued almost three and a half years after the accident. Under the Limitation Act 1985 (ACT) (“Limitation Act”) a three-year time limit after the injury happened applied to the claim made by the respondent. The Limitation Act provides that if an action is not brought within three years the cause of action is not maintainable: s 16B. The general power to extend a period of limitation does not apply to causes of action to which s 16B applies: s 36(5). The applicant raised the limitation point in a defence filed on 18 May 2007.
On 24 May 2007 the respondent issued an application claiming the following relief (relevantly): 3. A declaration that the claim in these proceedings was filed within time. 4. In the alternative, a declaration that the defendant be estopped from pleading a statutory bar to the claim. 5. An order pursuant to s 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).
On 4 June 2007, the respondent exercised its right to amend its originating claim without leave to claim the above relief as “interlocutory relief”.
The respondent’s application came on for hearing before Gray J on 6 August 2007. The primary judge decided to deal only with the claim in paragraph 3 of the application and he heard submissions with respect to that claim. The respondent submitted that NRMA’s letter dated 4 November 2005 constituted an acknowledgement within s 32 of the Limitation Act. On 26 October 2007 the primary judge made a declaration in the following terms: In regard to the letter of 4 November 2005 (from NRMA Insurance to CC Law) which was received by the plaintiff on 8 November 2005, that letter confirms the plaintiff’s cause of action for the purpose of s 32 of the Limitation Act. It is this order which is the subject of the applicant’s application to this Court for leave to appeal. The effect of the primary judge’s declaration is that, by reason of s 32 of the Limitation Act, the period from 20 December 2003 to 8 November 2005 does not count in the reckoning of the three-year limitation period. The proceedings issued by the respondent were issued within three years of 8 November 2005. Relevant legislative provisions
The three-year time limit in relation to claims of the type brought by the respondent is contained in s 16B of the Limitation Act and that section provides as follows: (1) This section applies to a cause of action for damages for personal injury other than a cause of action to which section 16 (Compensation to relatives) or section 16A applies. (2) The cause of action is not maintainable if brought— (a) if the injury is or includes a disease or disorder—3 years or more after the day the person injured first knows— (i) that the person has suffered an injury that is or includes a disease or disorder; and (ii) that the injury is related to someone else’s act or omission; … (b) in any other case—3 years or more after the day the injury happened.
That section was introduced into the Limitation Act by the Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT). For convenience, I will refer to this Act as the “Amendment Act”. Section 16B came into operation on 9 September 2003.
There is a power to extend the time for instituting a claim for damages for personal injury in the Limitation Act (s 36), but that power is not available in the case of causes of action to which s 16B applies: s 36(5). That subsection was also introduced into the Limitation Act by the Amendment Act.
The section in the Limitation Act which deals with acknowledgments is s 32 and that section relevantly provides as follows: (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; … … (4) An acknowledgment for this section shall be in writing and signed by the maker. This section has been in the Limitation Act from its enactment in 1985. There was no express change or alteration to s 32 made by the Amendment Act.
The primary judge found that NRMA’s letter dated 4 November 2005 was written, in part at least, to satisfy s 61(1)(b) of the Civil Law (Wrongs) Act. Section 61(1) provides as follows: (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.
Section 61(1) of the Civil Law (Wrongs) Act was part of a package of legislative amendments made to the Civil Law (Wrongs) Act and the Limitation Act by the Amendment Act. The amendments required a claimant for damages based on a liability for personal injury to give the respondent written notice of the claim within nine months of an accident and in some cases earlier than that: s 51. The respondent must respond to the notice of claim within a certain period: s 54. Section 61 places various obligations on the respondent and he or she must attempt to resolve the claim. The written notice stating whether liability is admitted or denied must be given (assuming no period is prescribed) by the respondent to the claimant 6 months after the respondent receives a complying notice of claim. By reason of s 61(1)(f), the respondent must make a written offer to the claimant or settle the claim by accepting the claimant’s offer. The Court may order a non-complying party to comply with a duty imposed on him or her: s 78. The effect of these provisions is that a respondent must decide within the limitation period if he admits or denies liability. If he admits liability and that can constitute an acknowledgment within s 32 then time is, on the applicant’s submission, “extended” in circumstances in which, as I have already said, by the same package of amendments, a three-year time limit is fixed (s 16B of the Limitation Act) and the general power of the Court to extend time is excluded (s 36(5) of the Limitation Act).
The applicant’s submission to the primary judge was that it would be inconsistent with the legislative purpose or intent of the package of amendments made by the Amendment Act to conclude that an admission made by him in compliance with s 61(1)(b)(i) as enacted by that Act could amount to an acknowledgment of the respondent’s cause of action within s 32 of the Limitation Act with the consequence that the time within which the proceedings may be commenced was, in effect, extended. The primary judge’s reasons
The primary judge found as a matter of fact that NRMA’s letter dated 4 November 2005 “gave effect”, as he put it, to the obligation on the applicant in s 61(1)(b)(i) of the Civil Law (Wrongs) Act: Alcock v Casey [2007] ACTSC 87; (2007) 215 FLR 59 at [7].
The primary judge said that s 32 of the Limitation Act was based on s 54 of the Limitation Act 1969 (NSW) and he referred to the 1967 First Report on the Limitation of Actions by the Law Reform Commission which preceded the enactment of s 54. He concluded from that report that s 54, and therefore s 32, did not extend limitation periods set in the Act but rather “they confirm that the plaintiff’s [sic] actions may give rise to a cause as to when the period fixed limiting the time for taking proceedings commences”. The section was really concerned with determining “the fair and just point from which the limitation period should run”.
The primary judge considered the explanatory memorandum for the Amendment Act and the 2002 Review of the Law of Negligence Report commissioned by the Commonwealth Government and known as the Ipp Report. He could not detect anything in those documents to indicate a legislative purpose to circumscribe the effect of s 32 of the Limitation Act. The primary judge reached the following conclusion (at [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.
The primary judge said that it was not inconsistent with the Ipp Report for a person to be able to rely on an admission of liability as an acknowledgment under s 32 of the Limitation Act. Issues on the application
I start by recording the fact that no complaint was made by the applicant about the procedure adopted by the primary judge or his use of a declaration to resolve the issue which he had isolated. Nor was it suggested by the applicant that he did not need leave to appeal from the primary judge’s order. I proceed on the basis that those assumptions are correct. As the question was not argued I express no view on whether leave to appeal is in fact required.
It should also be noted that the applicant did not suggest that NRMA’s letter dated 4 November 2005 could not amount to an acknowledgment within s 32 because it was no more than an admission of a breach of a duty of care and not an admission of a liability for damages of a particular amount or, at least a liability, for damages. The relevant words of s 32 are those in subs (2)(a)(i), namely, “acknowledges, to a person having … the cause of action, the right or title of the person to whom the acknowledgement is made”. The applicant’s approach appears to be correct and in the context of an acknowledgment of a debt I refer to Halsbury’s Laws of England (3rd ed, Butterworths, 1958) Vol 24 [594]) and in the context of a claim for damages I refer to Marks v Roads & Traffic Authority of New South Wales [2004] Aust Torts Reports 81-732.
Both parties made submissions on the application for leave to appeal and on the appeal should leave be granted. The applicant made two submissions in support of its claim that the primary judge’s decision was attended with sufficient doubt to warrant a grant of leave to appeal and on the appeal should leave be granted.
As I understand it, those submissions are put in the alternative. The first submission is that the nature and characteristics of an admission under s 61(1)(b)(i) of the Civil Law (Wrongs) Act are such that NRMA’s letter dated 4 November 2005 cannot be an acknowledgment under s 32 of the Limitation Act, having regard to the proper construction of s 32. This first submission focuses on the proper interpretation of s 32.
The second submission assumes that, on the face of it, an admission of the type embodied in the letter is within the terms of s 32 of the Limitations Act but is to the effect that the package of amendments effected by the Amendment Act impliedly repealed or curtailed the operation of s 32 in so far as it might otherwise apply to the admission in the letter. This second submission requires consideration of the principles of statutory construction relevant to the implied repeal or reading down of an earlier Act by the provisions of a later Act. It is fair to say that the second submission was the applicant’s principal submission on the application for leave to appeal. In his written submissions the applicant summarised his second submission in the following way: Having construed the provisions, where as here the earlier Act derogates from the later and more specific Act, the Court should find that s 32 does not as a matter of construction apply to the result of the performance of a duty under s 61(1)(b) of the [Civil Law (Wrongs)] Act or that there is an implied repeal of the former by the latter. The first submission
The doctrine of acknowledgment has a long history in English law. The application of the doctrine in the case of the revival of debts against which time has run or is running was considered by the House of Lords in Spencer v Hemmerde [1922] 2 AC 507 (“Spencer”), see especially at 519-536 per Lord Sumner, and by the High Court in Bucknell v The Commercial Banking Co of Sydney Ltd (1937) 58 CLR 155 (“Bucknell”) at 163-165 per Dixon J. An acknowledgment of a debt can give rise to a promise which is implied by law to repay the debt and if it does so any difficulty caused by the fact that the original debt is outside a period prescribed in a limitations statute is overcome. In other words, the debt is sufficient consideration for an implied promise to repay the debt and time begins to run again from the date of the acknowledgment. Although it has this effect as far as a limitation period is concerned, it seems that it does not give rise to a new cause of action. Originally, the doctrine did not apply to an unliquidated claim. Even in the case of a debt, it did not apply if there was a matter in the acknowledgment which was inconsistent with the implication of a promise to repay the debt. In the case of a conditional or qualified acknowledgment of a debt, the promise implied by law was one which recognised the conditions or qualifications. The doctrine of acknowledgment was extended by the statute to include unliquidated claims.
In terms of the present analysis, I can start with the explanatory statement for the Limitation Ordinance 1985 (ACT). It is stated in that document that many of the proposed provisions in the Ordinance were based on the Limitation Act 1969 (NSW). Section 32 was one such provision because, in all material respects, it is in the same terms as s 54 of the New South Wales Act. As I have already said in summarising the primary judge’s reasons, before the introduction of the New South Wales Act there was a report by the Law Reform Commission of New South Wales and the Court was referred to that document, which was prepared in 1967 and is entitled First Report on the Limitation of Actions.
In the report, the Commission states that the limitations law in New South Wales was based on English law of some antiquity. There is a reference to the Limitation Act 1939 (UK) and the Commission states that that Act provided a sound basis for the general law of limitation of actions. The Bill presented with the report used the Limitation Act 1939 (UK) as a starting point. In paragraph 15 of the report the Commission states: 15. It has for centuries been the law that an acknowledgment or part payment of a debt gives a fresh start to the running of the limitation period. The rules on this subject were at first developed by the courts but were later modified and extended by statute. Probably because of the rules of pleading and procedure of the courts at the time when the doctrines of acknowledgment and part payment were developed, the doctrine has been confined to liquidated claims, as distinct from claims to damages. Thus, if a man breaks his contract to pay the value of a car, there is a claim for a liquidated sum which is susceptible of acknowledgment; but if a man breaks his contract to deliver the car, there is only a claim for damages for which an acknowledgment is inoperative, even though the measure of damages may be the value of the car. We think that distinctions of this kind are mischievous and we recommend a provision covering acknowledgements and part payments relating to all the causes of action to which the Bill applies.
There are detailed notes in relation to various clauses in the Bill, and cl 54 was considered at some length. The Commission made the point that the doctrine of acknowledgment had only been applied to a cause of action in contract for a debt or other liquidated sum. The Commission said there was no good reason why the doctrine of acknowledgment should not apply to every limitation period fixed by the Bill. The Committee referred to the decision of the Court of Appeal in Lubovsky v Snelling [1944] KB 44 but it is not necessary for me to set out its discussion of that decision. The other change recommended by the Commission was that the doctrine of acknowledgment should only apply if the acknowledgment is made before the expiration of the limitation period.
From this background, and I have dealt with the topic only in the most general terms, the applicant submitted that an acknowledgment was a voluntary act by the person making it, and it did not include the making of an admission pursuant to a statutory obligation. The applicant accepted that, on the face of it, under s 61(1)(b)(i) he could either admit or deny liability, but he submitted that the decision was one to be made in good faith and that he could not in good faith deny liability if his only reason for doing so was to avoid the operation of s 32 of the Limitation Act. He was therefore bound, if the circumstances of the accident warranted it, to admit liability by reason of s 61(1)(b)(i). It followed, so the applicant submitted, that an admission under s 61(1)(b)(i) was not within the scope, properly construed, of s 32 of the Limitation Act.
An acknowledgment is a “distinct admission of the debt” to use the words of Dixon J in Bucknell (at 164) (see also Lord Sumner in Spencer at 528). It may well be that an admission made as a result of duress or a material mistake could not constitute an acknowledgment within s 32 of the Limitation Act and in this sense an admission must be voluntary before it can constitute an acknowledgment. However, the admission in this case was not involuntary in that sense. It was an admission properly made after inquiries into the circumstances of the accident were completed. The fact that it was made at the time it was made because of the obligation under s 61(1)(b)(i) of the Civil Law (Wrongs) Act does not prevent it from being an acknowledgment within the clear terms of s 32 of the Limitation Act. The applicant’s first submission must be rejected. The second submission
The applicant’s second submission is that sections in the Amendment Act, being a later Act, are “inconsistent” with s 32 of the Limitation Act, being an earlier Act, and that, in those circumstances, s 32 must be read down to avoid the inconsistency. As I understand it, it is not suggested that there has been an implied repeal of s 32 but, rather, that it should be read down to avoid the inconsistency. The applicant’s submission was that if an admission made by reason of the obligation under s 61(1)(b)(i) could constitute an acknowledgment under s 32 then that would be a result which was not only unintended by the legislature but a result which would be contrary to the intention of the legislature in enacting the amendments in the Amendment Act. In the circumstances, s 32 must be read down to exclude from its operation an admission made by reason of the obligation under s 61(1)(b)(i). The intention of the legislature was that there be a strict three-year time limit and that intention would be defeated if an admission made within the three-year time limit by reason of the obligation under s 61(1)(b)(i) could constitute an acknowledgment within s 32 of the Limitation Act because that would give the claimant a further three years within which to institute proceedings. The applicant’s submission is that that result would effectively give a claimant an extension of time.
The applicant’s submission is that this case is the second type of case identified in the following passage from the reasons for judgment of Griffith CJ in Goodwin v Phillips (1908) 7 CLR 1 at 7: [W]here the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.
The applicant submitted that it was the nature of the amendments effected by the Amendment Act, as much as the words used, that revealed incompatibility with s 32 of the Limitation Act and he referred to Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 280-281 per Kitto J.
For the principle to operate there must be a very clear case of inconsistency. In Saraswati v The Queen (1991) 172 CLR 1, Gaudron J said (at 17): It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v. Attorney-General (Vict.) … (See Shergold v Tanner (2002) 209 CLR 126 at 136-137 [34]-[35] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.)
In Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130 Gummow and Hayne JJ said (at 137-138 [18]) (citations omitted): It has long been recognised that even though one statute does not expressly repeal an earlier statute, the later statute must be read as impliedly repealing the earlier, if the two are inconsistent. Inconsistency lies at the root of this principle. But, as Isaacs J pointed out in 1907, “[i]t is very hard to formulate a rule which will apply to every case of implied repeal”. There are however, two cardinal considerations. First, as Gaudron J said in Saraswati v The Queen, “[t]here must be very strong grounds to support [the] implication, for there is a general presumption that the legislature intended that both provisions should operate”. Secondly, deciding whether there is such inconsistency (“contrariety” or “repugnancy”) that the two cannot stand or live together (or cannot be “reconciled”) requires the construction of, and close attention to, the particular provisions in question.
The applicant submitted that s 139 of the Legislation Act 2001 (ACT) (“Legislation Act”) authorises and requires a Court to take a very broad approach to the process of statutory interpretation. He submitted that it means that a Court may be able to depart from the unambiguous meaning of the language used in a legislative provision and to read in words which change the meaning of the provision. The submission was that s 139 is an analogue of s 3(1) of the Human Rights Act 1998 (UK) and that it should be given the same effect as the effect the House of Lords gave to s 3(1) of the United Kingdom Act in Ghaidan v Godin-Mendoza [2004] 2 AC 557 (“Ghaidan”).
I reject the applicant’s submission for the reasons which follow.
Sections 138 and 139 of the Legislation Act are in the following terms: 138 Meaning of working out the meaning of an Act In this part: working out the meaning of an Act means— (a) resolving an ambiguous or obscure provision of the Act; or (b) confirming or displacing the apparent meaning of the Act; or (c) finding the meaning of the Act when its apparent meaning leads to a result that it manifestly absurd or is unreasonable; or (d) finding the meaning of the Act in any other case. 139 Interpretation best achieving Act’s purpose (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. (2) This section applies whether or not the Act’s purpose is expressly stated in the Act. Note The Human Rights Act 2004, s 30(1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
Subject to one qualification, s 139 of the Legislation Act can be described as the Territory’ s equivalent of s 15AA of the Acts Interpretation Act 1901 (Cth). It is clear enough that under s 139 a Court can have regard to the purpose of a provision to determine if more than one construction of the provision is open, even though on its face the provision is not ambiguous. That follows from the definition of “working out the meaning of an Act” (which is the exercise referred to in the section), which includes as part of the definition in s 138 “(b) confirming or displacing the apparent meaning of the Act” and from the reasons for judgment of Dawson J in Mills v Meeking (1990) 169 CLR 214 at 235. Neither s 139 nor s 15AA of the Commonwealth Act authorises a court to rewrite legislation and the construction adopted must be one which is open having regard to the words of the legislation. The qualification referred to earlier is that the words in s 139 differ from those in s 15AA. Section 139 refers to an interpretation which would “best achieve” the purpose of the provision, whereas s 15AA refers to preferring a construction that would promote the purpose or object underlying the provision to a construction that would not promote that purpose or object. It is not clear on the authorities whether the difference in the words used means that the sections have different effects: see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ; PearceDC and Geddes RS, Statutory Interpretation in Australia (6th ed, LexisNexis Butterworths, 2006) at 37-38 [2.15].
By contrast to s 139, s 3(1) of the United Kingdom Act is in the following terms: (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. The convention referred to in this subsection is the European Convention on Human Rights.
In Ghaidan, the House of Lords gave s 3(1) a very broad operation including, inter alia, an operation which allowed the Court to depart from the unambiguous meaning the legislation would otherwise bear and to read in words which changed the meaning of the legislation: at 571-572 [29]-[32] per Lord Nicholls of Birkenhead, at 601 [122] per Lord Rodger of Earlsferry.
Section 139 of the Legislation Act is in quite different terms from s 3(1) of the United Kingdom Act and it does not authorise or require such a broad approach to the process of statutory interpretation.
The applicant submitted that certain observations by the Court in Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9 (“Kingsley’s Chicken”) supported his submission as to the proper scope and operation of s 139. In the course of its reasons in that case the Court said (at [49]-[52]): 49. It should be noted that the Legislation Act does not merely provide that the court may have regard to legislative history in construing an Act. Rather, s 139 is a positive requirement that – (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. 50. This provision, it seems to us, is in similar form to the interpretive provision in the Human Rights Act 1998 (UK) referred to by the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557. Section 3(1) of that Act provides that – (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. 51. An equivalent provision is to be found in s 30(1) of the Human Rights Act 2004, which provides that – (1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred. 52. The legislative direction to “prefer” an interpretation that is consistent with a policy objective was given effect to in Ghadidan [sic] v Godin-Mendoza. Lord Nicholls of Birkenhead said (at 571) – the interpretive obligation decreed by section 3 is of an unusual and far reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question.
In my opinion, in those passages the Court was observing that each of s 3(1) of the United Kingdom Act, s 139 of the Legislation Act and s 30(1) of the Human Rights Act 2004 (ACT) (“Human Rights Act”) imposed a “positive requirement” to prefer a particular type of interpretation. It was to that extent that s 139(1) was in “similar form” to s 3(1) and s 30(1) was an “equivalent provision” to s 3(1). The Court was not suggesting that s 139(1) of the Legislation Act or s 30(1) of the Human Rights Act authorised or required a court to take the type of approach taken by the House of Lords in Ghaidan. If I am wrong, and the Court was suggesting that that approach could and should be taken, then I would respectfully decline to follow the Court’s observations, which are obiter. In relation to s 139, the observations do not recognise the difference in wording between s 139(1) of the Legislation Act and s 3(1) of the United Kingdom Act, or the well-established authorities on the scope and operation of s 15AA of the Acts Interpretation Act 1901 (Cth). Nor, in my respectful opinion, is it correct to say that, in a case in which a human right was in issue, s 30(1) of the Human Rights Act authorised and required a Court to take the type of approach taken by the House of Lords in Ghaidan. In the form in which it was at the time of Kingsley’s Chicken, s 30(1) was subject to s 139 of the Legislation Act (see s 30(2)). Even in its amended form, in force since 18 March 2008, s 30 requires the Court to adopt an interpretation which is consistent with the purpose of the legislative provision. By contrast, the primary constraint under s 3(1) of the Human Rights Act 1998 (UK) is stated in terms of what is or is not possible.
In addition to his reference to the provisions of the Legislation Act, the applicant referred to the Ipp Report (see [82]) and the explanatory statement and debates for the Amendment Act in the Legislative Assembly.
The Ipp Report addresses a number of issues. The report contains a statement that it is “desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death”. One of the terms of reference required the panel to develop and evaluate options for a limitation period of three years for all persons and that was to include establishing the appropriate date when the limitation period commences. Leaving aside the limitation period for persons who are minors or incapacitated persons and the “long-stop period” (a term defined in the report), the panel recommends in the report that there be a three-year limitation period and that after this time claims should be statute-barred. The panel discusses the reasons for limitation periods and in that context refers to Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 at 553 per McHugh J. There is an extensive discussion by the panel of the options as to the commencement of the limitation period. The panel’s preference is for what it calls the date of discoverability as the commencement of the limitation period and it says that if that option were adopted a period of limitation of three years would be reasonable and there would be no need for the Court to have the power to extend time. Recommendation 24 is in the following terms: The Proposed Act should embody the following principles: (a) The limitation period commences on the date of discoverability. (b) The date of discoverability is the date when the plaintiff knew or ought to have known that personal injury or death; (i) had occurred; and (ii) was attributable to negligent conduct of the defendant; and (iii) in the case of personal injury, was sufficiently significant to warrant bringing proceedings. (c) The limitation period is 3 years from the date of discoverability. (d) Subject to (e), claims become statute-barred on the expiry of the earlier of (i) the limitation period; and (ii) a long-stop period of 12 years after the events on which the claim is based (“the long-stop period”). (e) The court has a discretion at any time to extend the long-stop period to the expiry of a period of 3 years from the date of discoverability. (f) In exercising its discretion, the court must have regard to the justice of the case, and in particular: (i) whether the passage of time has prejudiced a fair trial of the claim. (ii) the nature and extent of the plaintiff’s loss. (iii) the nature of the defendant’s conduct.
The explanatory statement for the Amendment Act referred to the Ipp and Neave “Reviews” and contained a statement that the amendments in the Bill were “based on the recent national reviews on insurance and tort law reform (commonly known as the Ipp and Neave Reviews)”. The explanatory statement contained a statement that the Bill changed the statute of limitations for adults from six years to three years from the date of occurrence of their injury or discovery of the injury. It was said that this would ensure matters were settled quickly and would allow parties “to move on with their lives”. It would also ensure that matters were heard before evidence was lost.
There is nothing in the Second Reading Speech for the Amendment Act which warrants specific mention. It seems that there was a proposed amendment to the Bill to ameliorate the strict three-year time limit. That amendment was defeated and in the course of debate the Chief Minister referred to the two reasons for a strict time limit as, first, the fact that disputes were best heard early before evidence was lost and memories dimmed and, secondly, the fact that it gave the immediate cost feedback necessary for the fixing of insurance prices.
In my opinion, the Ipp Report, the explanatory statement and debates in the Legislative Assembly for the Amendment Act do not add greatly to what may be gleaned from the legislative provisions themselves. It should not be overlooked that, at best from the applicant’s point of view, s 16B of the Limitation Act implements Recommendation 24 of the Ipp Report in its own particular way. The date of discoverability rule, expressly stated, applies only to a disease or disorder. Clearly, the legislative intention behind the amendments effected by the Amendment Act was to encourage the resolution of claims for damages based on a liability for personal injury at an early stage and without the need for legal proceedings and, if that could not be achieved, the institution of legal proceedings in a prompt and timely fashion. The first purpose is reflected in s 61 and associated sections of the Civil Law (Wrongs) Act and the second purpose is reflected in s 16B and s 36(5).
If an admission of liability made by reason of the obligation under s 61(1)(b)(i) constitutes an acknowledgment within s 32 then the period before the admission is not counted in determining the limitation period. Section 32 is not, in form, an extension of time provision. Furthermore, in so far as it might be said that in a practical sense an acknowledgment results in an extension of time, the acknowledgment (in the case of an admission of liability made by reason of an obligation under s 61(1)(b)(i)) does not come about because of a decision of a court or by reason of conduct of a claimant, but from a properly informed decision made by the respondent to a claim. In addition to those matters, one of the reasons for the strict three-year time limit is, to a point at least, not present in the case of an acknowledgment because liability will not need to be litigated if proceedings ultimately become necessary. I am not persuaded that the amendments and other material to which I have referred lead to the conclusion that s 32 of the Limitation Act should be read down in the manner for which the applicant contends. I reject the applicant’s second submission. Conclusion
The decision of the primary judge is not attended with sufficient doubt to warrant a grant of leave to appeal and the application for leave to appeal is refused with costs.