Girvan v Civil Construction Hire Pty Ltd [2025] ACTSC 131

1. These are proceedings for damages for personal injuries allegedly suffered by the plaintiff when she had a workplace injury involving a steel door from a steamroller falling on her, causing serious injuries. She claims that her injuries have been compounded by the treatment she received at two hospitals. Accordingly, she has a complex claim against the owner of the steamroller, the contractor at the construction site who was responsible for the safety of workers and contractors, and each of the two hospitals.

2. The proceedings are governed by the Civil Law (Wrongs) Act 2002 (ACT). The application before the Court today is an application for leave nunc pro tunc to commence the proceedings in circumstances where the requirements of Ch 5 of the Act have not been complied with. Section 79 of the Civil Law (Wrongs) Act provides that the court may grant leave to a claimant to commence proceedings despite non-compliance with Ch 5 if the court is satisfied that there is an urgent need to begin the proceeding. These proceedings were commenced without leave first being obtained and hence leave is now sought nunc pro tunc.

3. There was an urgent need for the proceedings to be commenced, at least as against the first and second defendants, because the limitation period was shortly to expire. The accident occurred on 3 February 2022 and the proceedings were commenced on 7 January 2025.

4. Part of the delay is explained by the fact that, in the first instance, the solicitors advising the plaintiff treated her claim as a workers compensation claim, until it was ascertained that the hospitals may have contributed to the outcome in failing to diagnose or treat certain infections. The position the proceedings have now reached is that the personal injury claim notifications were served on all defendants on the same day that the proceedings were commenced. No response was received from the first and second defendants and accordingly the notices of claim are deemed compliant in accordance with the provisions of s 54(3) of the Civil Law (Wrongs) Act.

5. The consent position of the parties is that a period of approximately four months is required to complete the steps required under Ch 5. Having regard to the imminent expiration of the limitation period at the time the proceedings were commenced, I am satisfied that it is appropriate to grant the leave sought. Section 79(3) provides that, if leave is given, the proceedings are stayed until the claimant complies with the requirements of Ch 5, or the proceeding is discontinued or otherwise ends.

6. As I have observed in other matters before me in the list this morning, that statutory stay creates the potential for the stay to be indefinite and for the control of the further steps in the proceedings to be in the hands of the parties rather than the Court. That is not an appropriate way for the matter to proceed. The proceedings should be brought back before the Court within a reasonable period, whereupon the parties should be called upon to explain if the steps required under Ch 5 have not been complied with as anticipated.

Orders

7. For those reasons I make the following orders: (1) Grant leave to the plaintiff nunc pro tunc pursuant to s 79(1) of the Civil Law (Wrongs) Act to begin the proceedings. (2) Note that the effect of order 1 is that the proceedings are stayed. (3) It is the Court’s expectation that the requirements of Ch 5 should be completed within 4 months. (4) Vacate the listing of the proceedings on 14 April at 9:30am. (5) List the proceedings on Monday, 11 August 2025 before the Registrar at 9:30am. (6) Costs of the application are costs in the cause.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: