Supreme Court of the NT|1992-10-22|Before: Morling JJ

DAVID DEREK VERSCHUUREN v. TOMS' TYRES CORPORATION LIMITED No. AP22/1991 Number of pages - 11 Limitation of actions - damages (1992) 86 NTR 1 (1992) 110 FLR 170 [1992] NTSC 85 (22 October 1992)

COURT IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA ANGEL, MILDREN AND MORLING JJ CWDS Limitation of actions - damages HRNG DARWIN, 12 October 1992 #DATE 22:10:1992 Counsel for appellant: J Waters Solicitor for appellant: Cridlands Counsel for defendant: S Southwood Solicitor for defendant: Ward Keller ORDER Set aside answers to questions and orders for costs made by trial judge. JUDGE1 ANGEL, MILDREN AND MORLING JJ On 19 July 1989, the appellant issued a Writ claiming damages from the respondent arising from injuries which he alleged he sustained whilst employed by the respondent on or about 13 December 1984. The claim is for damages for breach of the duty of care owed by the respondent to the appellant, the respondent being the appellant's employer. 2. The Writ was endorsed with an application for extension of time pursuant to s44 of the Limitation Act. 3. By its defence, the respondent claimed that the action was barred by virtue of the provisions of s23(3A)(a) of the Workers' Compensation Act in that the proceedings were commenced by a Writ filed more than three years after the date upon which the appellant first received payment or the first payment of compensation pursuant to the Workers' Compensation Act arising out of the injury. The respondent also put in issue the question whether or not the appellant was entitled to an extension of time pursuant to of the . 4. On 21 June 1991, the Master ordered that certain preliminary questions be tried before the trial of the proceedings. Those questions were as follows: "(a) whether the plaintiff (the appellant) has received compensation under the Workers' Compensation Act as contemplated by Section 23(3) of the Act; (b) whether the plaintiff's causes of action are subject to the limitation period prescribed by Section 23(3A) of the Workers' Compensation Act; (c) whether the plaintiff is entitled to an extension of

time limited to him by Section 23(3A) of the Workers' Compensation Act pursuant to Sub-Section 44(1) of the Limitation Act; (d) whether the plaintiff's causes of action are subject to the limitation periods prescribed by section 12 of the Limitation Act; and/or (e) whether the plaintiff is entitled to an extension of time limited to him by section 12 of the Limitation Act pursuant to section 44 of the Limitation Act." 5. These questions were tried in the Supreme Court and answered as follows: (a) - yes, the plaintiff has received compensation under the Workers' Compensation Act as contemplated by s23(3) of the Act. (b) - yes, the plaintiff's causes of action are subject to the limitation prescribed by s23(3A) of the Workers' Compensation Act. (c) - no, the plaintiff is not entitled to an extension of time limited to him by s23(3A) of the Workers' Compensation Act pursuant to s44(1) of the Limitation Act. (d) - no, the plaintiff's causes of action are not subject to the limitation periods prescribed by s12 of the Limitation Act; or (e) - no, the plaintiff is not entitled to an extension of time limited to him by s12 of the Limitation Act pursuant to s44 of the Limitation Act. 6. The court also made certain orders in relation to costs. 7. The appellant has appealed from the judgment of the court on the following grounds: "The learned trial judge erred in finding that: (i) workers compensation payable pursuant to the provisions of the Workers' Compensation Act had been received by the appellant for 13 and 14 December 1984; (ii) Section 5 of the Limitation Act is intended in its application to be read as limiting the ameliorative provisions of section 44 of the Limitation Act to enactments referred to in section 3 of that Act; (iii)the appellant is not entitled to an extension of the time limit prescribed in section 23(3A) of the Workers' Compensation Act within which to initiate proceedings pursuant to the provisions of Section 44(1) of the Limitation Act." 8. The facts may be shortly stated. On 13 December 1984, the appellant was employed by the respondent and was passing tyres to a workmate who was on a platform above his head. A tyre fell from above and hit him on the head. The appellant felt some pain and numbness and lay down for a period of about ten minutes, but the pain was intense and he found he could barely stand up. He reported the incident to one of the managers of the business, Mrs Jackson, who, on that afternoon, drove him to see Dr Gorman and from there he was driven to see Dr Pillai who gave him a general examination. Mrs Jackson drove the appellant back to her house and he stayed there that night. He did not return to work on that day. 9. On 14 December 1984, Mr Jackson, another manager of the business, took the appellant to Dr Gorman's surgery again where Dr Pillai was present and administered a general anaesthetic. Some of his joints were manipulated, which gave relief to the pain in his lower back and right arm which had persisted over night. The appellant remained away for the rest of that day. 10. On 13 and 14 December 1984, Mr and Mrs Jackson personally paid the medical accounts for the medical treatment which the appellant received. Those sums were later reimbursed to Mr and Mrs Jackson by the respondent during December of 1984. 11. The respondent paid the appellant his ordinary salary on Friday 14 December 1984, the records of the company indicating simply that he was paid his ordinary wages. 12. The learned trial judge did not specifically find that the appellant suffered personal injury by accident arising out of or in the course of his employment on 13 December 1984. It was not contended otherwise by the parties and his Honour proceeded on the basis that the liability to pay compensation pursuant to s7(1) of the Act had been established. It was not contended by the appellant that his Honour was wrong to have approached the matter in this way. 13. Section 23 of the Workers' Compensation Act provides as follows: "23. LIABILITY OF THE EMPLOYER INDEPENDENTLY OF THIS ACT (1) Except as provided by this Act, a worker shall not be entitled, in respect of personal injury (by accident)

arising out of or in the course of his employment to receive compensation or any payment by way of compensation from his employer both independently of and also under this Act. (2) If the injury is an injury in respect of which a worker is entitled to receive a pension, other than a service pension, under the Repatriation Act 1920-1951, the worker shall not be entitled to compensation under the provisions of this Act. (3) Subject to sub-section (3A), where personal injury is caused to a worker in circumstances which appear to create a legal liability in his employer to pay damages in respect thereof and the worker has received compensation under this Act, the worker shall be entitled to take proceedings against his employer to recover damages. (3A) A worker shall not be entitled to take proceedings under sub-section (3) unless he commences those proceedings- (a) within 3 years after the date upon which he received payment, or the first payment, of compensation under this Act; or (b) if, on that date, he is under a legal disability or, as a result of the injury, a physical disability that prevents or hinders him from commencing the proceedings, then within 3 years after the date on which the disability ceases. (4) A worker who recovers damages (other than damages for pain and suffering or loss of amenities of life in respect of the injury to a resident of the Territory, within the meaning of the Motor Accidents (Compensation) Act, in or as a result of an accident, within the meaning of that Act, that occurred in the Territory) from his employer in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from his employer." 14. It is to be noted that s23(1) draws the distinction between "compensation" and "any payment by way of compensation." The effect of s23(1) is that, where a worker has not received a payment of compensation under the Act, s23 does not preclude him from commencing an action for damages at common law. In particular, s23(3A) does not apply because s23(3) relates to the situation where the worker has received compensation under the Act. Therefore, where the worker has not received any compensation under the Act, the relevant limitation provision is s12 of the Limitation Act, i.e. three years from the date upon which the cause of action first accrued. 15. If the worker has received compensation under the Act, the relevant limitation provision is provided by s23(3A), i.e. three years after the date upon which he received payment or the first payment of compensation under the Act. 16. For all practical purposes there may be little difference, so far as the date upon which the cause of action became statute barred, whether the action is barred by virtue of s12 of the Limitation Act or by virtue of s23(3A) of the Workers' Compensation Act. The main difference lies in the consequences which are said to flow from whether the action is statute barred pursuant to s23(3A) of the Workers' Compensation Act or whether the action is statute barred pursuant to s12 of the Limitation Act. Clearly, if the action is barred by virtue of s12 of the Limitation Act, the court has power to extend the time for the bringing of that action under s44 of the Limitation Act. However, if the cause of action is barred pursuant to s23(3A) of the Workers' Compensation Act, the respondent contends that the power to extend time under s44 of the Limitation Act is non-existent. 17. Clearly, the payments made by Mr and Mrs Jackson to Drs Gorman and Pillai are not caught by s23(3A), if for no other reason than that they were not payments which the appellant received: see Hansen v Totalizator Agency Board [1965] VicRp 91; (1965) VR 721; and Sokolowski v Colda Refrigeration Co Ltd (1960) NSWR 468. 18. The learned trial judge's conclusion was as follows: "I am of the opinion that the pay which the plaintiff received in respect of the time he was off work immediately after the accident, was compensation within the meaning of the Act. There was a legal liability upon the employer to pay the plaintiff's wage in respect of the day on which he received the injury, and such an amount was paid to the plaintiff. There was no evidence that that payment of wage was made gratuitously or by way of sick leave pay, by mistake or for any other reason than that it was required to be paid by the Act. It is clear upon the evidence of Mr and Mrs Jackson that they were aware that the plaintiff was incapacitated during the period he was off work consequent upon the accident. They were the managers for the defendant and they took him to the doctors and looked after him at their home over night and took him back to the doctors the following day. The defendant gave notice of the accident to its insurer, albeit three months after the event." 19. In our opinion, for it to be established that a workman has received payment of compensation under the Act, it must first be shown that there is an entitlement to the payment under the Act and, secondly, that the payment was received by the worker with knowledge that it was being paid in respect of that entitlement. As Owen J (with whom Ferguson and Wallace JJ agreed) said in Sokolowski v Colda Refrigeration Co Ltd, supra, at 469-70, with respect to s63 of the New South Wales Act, which is in similar terms to 23(3A) of the Workers' Compensation Act: "When the present s.63 was enacted, it enabled the worker,

as I have said, to pursue both sets of remedies but placed a time limit in certain circumstances upon pursuing the common law remedy, and I think it is reasonable to conclude that the draftsman would have intended to fix as a starting-point for that period of limitation the date of the happening of an occurrence of which the worker would know and not the date of the happening of an event which might be unknown to him and which he might not even be able to ascertain." 20. The learned trial judge did not take into account in reaching his conclusion that the payment of the relevant money was compensation, the state of the evidence concerning the appellant's knowledge of the character of the payment being made to him, and in this respect, we consider that his Honour's conclusion was in error. 21. As the ultimate conclusion to be drawn did not rest upon any assessment by the learned trial judge of the credit to be given to the evidence of the witnesses, we consider that we are just as able to draw the appropriate inference from the established facts as was the court below: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; (1979) 23 ALR 405. In this case, in our opinion, the evidence does not establish that when the appellant received his usual weekly pay on 14 December 1984, he did so knowing it to be in part at least, payment of compensation under the Act. The appellant had made no claim for payment of compensation, there is no evidence that he was told that the payment or any part of it, was made by way of compensation under the Act, and the circumstances leave it equally open to the inference that the component of the payment for the time he was off work was made gratuitously or by way of a sick pay entitlement, or by way of liability which had arisen at common law. The burden of proof being on the respondent to prove the character in which the payment was made and received, we consider that the inference that the payment of wages received by the appellant included a component which the appellant knew was being paid by the respondent as compensation under the Act cannot be drawn and that therefore the learned trial judge should have found that the appellant had not received compensation under the Act as contemplated by s23(3). 22. We turn now to consider the second substantial question which arises on the hearing of the appeal, namely, whether the appellant was entitled to an extension of time to commence proceedings pursuant to s44(1) of the Limitation Act 1981. His Honour held that the Limitation Act does not apply to an action for which a period of limitation is prescribed by the Workers' Compensation Act. 23. In order to understand his Honour's reasoning on this question, it is necessary to refer to the relevant provisions in the Limitation Act. Section 44(1) of the Act is in the following terms: "44. EXTENSION OF PERIODS

(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for - (a) instituting an action; (b) doing an act, or taking a step in an action; or (c) doing an act or taking a step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit." 24. However, s5 provides as follows: "5. SAVING FOR OTHER ENACTMENTS WHERE LIMITATION PRESCRIBED This Act does not apply to any action for which a period of limitation is prescribed by any other enactment other than an enactment referred to in section 3." 25. Section 3 provides for the repeal and amendment of a number of Imperial Acts and Acts of the Territory and of the State of South Australia in which periods of limitation for the commencement of actions are prescribed. The Acts are identified by reference to the Schedule to the Limitation Act. No reference is made to the Workers' Compensation Act in the Schedule. 26. The learned trial judge was of the opinion that since the Workers' Compensation Act prescribes a period of limitation but is not an enactment referred to in s3 of the Limitation Act, s44 of the latter Act had no application. Accordingly he held that the Supreme Court had no jurisdiction to extend the time prescribed in the Workers' Compensation Act. His Honour had come to the same view in Fersch v Power and Water Authority (unreported, 14/8/89). This case went on appeal ((1990) [1990] NTSC 30; 101 FLR 78) but not on this point, which was not argued. 27. Section 44(1), on its face, gives power to the Court to extend a time limitation prescribed in "this or any other Act ..." This broadly expressed power should only be confined within narrow limits if there is a plain and unambiguous provision elsewhere in the Act which require this to be done. We do not think s5 is such a provision. In our opinion the words of that section are concerned with the preservation of special limitation periods prescribed by enactments other than those referred to in s3. The effect of s5 is only that those limitation periods are preserved. The effect of the section is not to deprive s44 of its efficacy to permit the making of orders for extensions of periods of time which are prescribed by the Limitation Act or any other Act. 28. In Fersch, supra Martin J said (at 7): "The Limitation Act does not normally apply to any action for which a period of limitation is prescribed by any other enactment. It does apply to actions for which a period of limitation is prescribed by an enactment referred to in section 3. Not without some hesitation I have decided that s5 must be given its plain meaning. That can be achieved by construing the words 'any other Act' in s44(1) as being a reference to those Acts referred to in s3, so that where any of those Acts prescribe a limitation period, a Court may exercise the general unfettered discretion. S.9(b) permits actions commenced before the commencement of the Limitation Act to continue as if that Act had not been passed, and s9(2) provides that the time for bringing proceedings in respect of a cause of action that arose before that commencement shall, if it has not then expired, expire at the time it would have expired had the Act not come into operation. Those proceedings and causes of action continued to be governed by the law in operation prior to the commencement of the Act, notwithstanding the repeal or amendments affected to the Acts referred to in s3. It is those Acts which are referred to in s44(1)." 29. With respect, we are unable to agree with this reasoning. Since all the Acts referred to in s3 are repealed or amended, it seems to us unlikely in the extreme that they are the Acts referred to in s44(1). Martin J was only able to reach the conclusion that it is the repealed or amended Acts which are referred to in s44(1) because of the transitional provisions contained in s9. But the transitional provisions refer to actions and the bringing of proceedings, whereas s44(1) refers to "any other Act, or an instrument of a legislative or administrative character". We do not think these words can properly be confined so as to apply only to the transitional provisions. 30. On Martin J's interpretation of s44(1), it has virtually no work to do save in respect of extensions of limitation periods prescribed by the Limitation Act itself. The Limitation Act was plainly intended to codify the law on the limitation of actions and to make provision for extensions of limitation periods in appropriate cases. In the ordinary course of events it might be expected that the legislature will, in the future, pass Acts containing limitation periods. It would be odd if s44(1) had no application to such Acts, yet that would be the case if his Honour's reading of s5 is adopted. 31. In the event that s23(3A) did apply to the circumstances of this case and it had been necessary to answer Question (c) of the preliminary questions, we would have answered it by saying, yes, the plaintiff was entitled to apply for an extension of time limited by s23(3A) of the Workers' Compensation Act pursuant to s44(1) of the Limitation Act. 32. Accordingly, we would set aside the answers to the questions made by Martin J and the orders for costs he made. We answer the questions as follows: (a) No. (b) No. (c) Unnecessary to answer. (d) Yes. 33. As Martin J did not consider the merits of the appellant's application for an extension of time pursuant to s44 of the Limitation Act, and the merits of that application were not debated before us, we would remit the matter of the proper answer to question (e) to Martin J for his Honour's decision according to law. The question of the appropriate order to be made for the costs of the trial of the issues before him ought also be remitted as this may depend (at least in part) upon what answer is ultimately given to question (e). The respondent ought to pay the appellant's costs of the appeal to be taxed. 34. Orders accordingly.

Repatriation Act 1920

DAVID DEREK VERSCHUUREN v. TOMS' TYRES CORPORATION LIMITED No. AP22/1991 Number of pages - 11 Limitation of actions - damages (1992) 86 NTR 1 (1992) 110 FLR 170 [1992] NTSC 85 (22 October 1992)

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Judgment (6 paragraphs)

DAVID DEREK VERSCHUUREN v. TOMS' TYRES CORPORATION LIMITED No. AP22/1991 Number of pages - 11 Limitation of actions - damages (1992) 86 NTR 1 (1992) 110 FLR 170 [1992] NTSC 85 (22 October 1992)

Legislation Cited (4)

Cases Cited (3)