Limitation Act 1974 (Tas), ss 2(1), 5A(3).

Workers Rehabilitation and Compensation Act 1988 (Tas), s 138AB.

Judgment Number: [2014] TASSC 69

IVAN MERCER v ALLIANZ AUSTRALIA INSURANCE LIMITED (NO 3)

1. This determination relates to a limitation defence pleaded by the defendant, and based on s 5A(3)(a) of the Limitation Act 1974. The background can be summarised as follows:
   • On 11 March 2008 the plaintiff, Ivan Mercer, was catastrophically injured in the course of his employment. His employer was a company named Windsor Agencies Pty Ltd.
   • On 26 January 2011 that company was deregistered.
   • On 21 February 2012 the plaintiff commenced an action for damages against the defendant, Allianz Australia Insurance Limited. Allianz was the insurer of Windsor Agencies. The plaintiff relied on s 601AG of the Corporations Act 2001 (Cth), which provides that a person may recover from the insurer of a company that is deregistered an amount that was payable to the company under an insurance contract if the company had a liability to that person.
   • Allianz filed a defence in which, amongst other things, it pleaded a limitation defence based on s 5A(3)(a) of the Limitation Act. When that provision applies, a plaintiff is precluded from recovering damages in an action instituted more than three years after the "date of discoverability".
   • I dealt with the limitation issue as a preliminary point. On 12 April 2013 I determined that s 5A(3)(a) did not apply, and that the only applicable limitation period was a period of six years, commencing upon the date of the company's deregistration, imposed by s 4(1)(d) of the Limitation Act: Mercer v Allianz Australia Insurance Limited [2013] TASSC 11; (2013) 273 FLR 459. I was wrong.
   • I proceeded to try the other issues in the action. I concluded that Windsor Agencies had been liable for damages for negligence; that there was contributory negligence on the plaintiff's part; and that he was entitled to recover substantial damages: Mercer v Allianz Australia Insurance Limited (No 2) [2013] TASSC 35. Judgment was entered for the plaintiff accordingly.
   • Allianz appealed to the Full Court, contending that I had erred in my determination in relation to the limitation issue. There were no other grounds of appeal. On 9 May 2014 the Full Court held that the limitation period imposed by s 5A(3)(a) applied as if Windsor Agencies had not been deregistered: Allianz Australia Insurance Limited v Mercer [2014] TASFC 3.
   • On 29 May 2014 the Full Court made an order remitting to me the trial of the limitation issue pleaded in pars 16 and 17 of the defence.
2. Those paragraphs read as follows:

"16 By no later than about 3rd September 2008 the Plaintiff knew or ought to have known that personal injury:-

(b) Was attributable to the conduct of Windsor Agencies Pty Ltd;

(c) Was sufficiently significant to warrant bringing proceedings.

(i) On or about the 16th June 2008 the Plaintiff's solicitors had obtained a medical report of Associate professor Richard Stark which assessed the Plaintiff's whole person impairment as at least 84%.

(ii) On or about the 3rd September 2008 the Defendant agreed the Plaintiff's whole person impairment was greater than 30%.

(iii) On or about the 3rd September 2008 the Defendant paid to the Plaintiff the sum of $222,267.15 as a lump sum payment pursuant to Section 71 of the Workers Rehabilitation and Compensation Act 1988.

1. Contrary to the provisions of Section 5A(3)(a) of the Limitation Act 1974 the Plaintiff has brought this action after the expiration of 3 years commencing on the 'date of discoverability' as defined in Section 2(1) of that Act and accordingly the Plaintiff's action and remedy are statute barred."
2. Section 5A(3) of the Limitation Act reads as follows:

"(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

(a) 3 years commencing on the date of discoverability;

(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action."

1. The following definition appears in s 2(1) of the Limitation Act:

"'date of discoverability', in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death -

(b) was attributable to the conduct of the defendant; and

(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings".

1. The plaintiff was conscious when he was injured. He accepts that he knew well before the pleaded dated, 3 September 2008, that personal injury had occurred. In my second judgment in this matter, I made findings to the effect that the plaintiff's injuries were attributable to negligence on the part of a fellow employee, for whom Windsor Agencies was vicariously liable. The plaintiff does not dispute that by 3 September 2008 he knew, on that basis, that his personal injury was attributable to the conduct of Windsor Agencies.
2. However the plaintiff contends that the limitation defence based on s 5A(3) must fail on two bases:
   • He contends that he neither knew, nor ought to have known, that his personal injury was sufficiently significant to warrant bringing proceedings until a time less than three years before the issue of his writ.
   • He contends that, because of the operation of s 138AB of the Workers Rehabilitation and Compensation Act 1988, he did not have a cause of action against Allianz until March 2010, less than three years before the issue of the writ, and that s 5A(3) cannot, in those circumstances, operate to bar his cause of action.

The significance of s 138AB

1. At the time of the plaintiff's injury, s 138AB(1) and (2) read as follows:

"(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against an employer must lodge with the Tribunal an election to claim damages.

(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%."

1. The tribunal referred to in those subsections is the Workers Rehabilitation and Compensation Tribunal. The section was subsequently repealed and replaced, but that amendment does not apply in relation to a worker injured before it took effect: Workers Rehabilitation and Compensation Act, s 164A.
2. The Full Court has held that an injured worker does not have a cause of action for damages against his or her employer until s 138AB(2) is satisfied, either by the degree of permanent impairment being agreed by the worker and the employer, or by the degree of impairment being determined by the tribunal: Skilled Engineering Ltd v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 86; (2005) 15 Tas R 88 per Evans J, with whom Tennent J and Hill AJ agreed, at [21].
3. The plaintiff lodged an election to claim damages with the tribunal pursuant to s 138AB(1) on 5 March 2010. He did not obtain a determination by the tribunal as to the degree of his permanent impairment pursuant to s 138AB(2), but took the other course permitted by that subsection and relied upon an agreement as to the extent of his permanent impairment. There is a dispute as to when that agreement was made. Allianz contends that it was made on 29 August 2008. The plaintiff contends that there was no such agreement until 26 February 2010.
4. Allianz's contention that s 138AB was satisfied by an agreement on 29 August 2008 is based on events that occurred in relation to a payment of lump sum compensation under the Workers Rehabilitation and Compensation Act. Under s 71 of that Act, when a worker suffers an injury that entitles him or her to compensation, and permanent impairment results from that injury, a lump sum is payable in addition to any weekly payments or other compensation. Under s 71(1)(c), there is a maximum amount payable as a lump sum for permanent impairment. That maximum amount is payable only to "a worker who suffers permanent impairment assessed at a percentage of the whole person equivalent to more than 70%". At the time of the plaintiff's injury, that maximum figure was $222,267.15. On 25 July 2008 the plaintiff's solicitors wrote to Allianz as Windsor Agencies' insurer, suggesting that that amount was payable pursuant to s 71. On 29 August 2008 the solicitor for Allianz phoned the plaintiff's solicitors' office and left a message that Allianz agreed to pay. On 3 September 2008 Allianz sent the plaintiff's solicitors a cheque for 90% of the maximum amount. The other 10% had to be sent to the Health Insurance Commission. On the same day, the solicitors for Allianz wrote to the plaintiff's solicitors confirming that Allianz had agreed to pay the plaintiff $222,267.15 in satisfaction of his entitlement to a lump sum payment pursuant s 71.
5. It is clear that Allianz accepted in August 2008 that the plaintiff's degree of permanent impairment exceeded 70%. I accept that Allianz was entitled at that stage to act on behalf of the plaintiff's employer, Windsor Agencies, whose deregistration was still years away. However there is no evidence that either Allianz or Windsor Agencies agreed that the plaintiff's degree of permanent impairment was any particular percentage. And there is no evidence that either company at that stage expressly agreed or conceded that the degree of his permanent impairment was "a percentage of the whole person of not less than 30%", nor that either company made any sort of agreement or concession at all.
6. On 24 February 2010 the plaintiff's solicitors wrote to the solicitors for Allianz, forwarding a form of s 138AB election, and asking them to sign it. Signing it would have indicated agreement by the employer that the degree of the plaintiff's permanent impairment was a percentage of the whole person of not less than 30%. They signed it as "Solicitors for the Employer/Insurer", and returned it to the plaintiff's solicitors on 26 February 2010 with a covering letter. They said in that letter that they had "been provided with instructions on behalf of the employer by virtue of Allianz Australia Insurance Limited to agree that Mr Mercer suffers from a whole person impairment of not less than 30%". The plaintiff contends that the degree of his permanent impairment was agreed for the purposes of s 138AB(2) only then, and not on or about 29 August 2008.
7. I agree. When one analyses what was said and written in 2008, it is clear that money was requested and paid at that time without the employer or anyone on its behalf communicating agreement as to anything. It is one thing to choose to pay rather than getting involved in a dispute or to putting a claimant to proof. It is another thing both to pay and to acknowledge that there was a right to payment. Allianz took the former course, not the latter.
8. It follows that the plaintiff did not have a cause of action against Windsor Agencies until 26 February 2010, the day when the degree of his permanent impairment was agreed by him and his employer. It is therefore necessary to consider whether a date of discoverability can be earlier than the date upon which a cause of action arises.
9. In my view there is no reason why that cannot be. It must often happen that an injured worker realises that his or her injury is sufficiently significant to warrant bringing damages proceedings at a stage when he or she has neither reached agreement with the employer as to the degree of permanent impairment nor obtained a s 138AB(2) determination from the tribunal. In fact, except in cases of mental incapacity, it is difficult to envisage any circumstances in which a worker would apply for such a determination without first having realised that his or her injury was sufficiently significant to warrant bringing damages proceedings. Commonly, a worker realises that his or her injuries are sufficiently serious to warrant commencing an action for damages, and thereafter sets about obtaining either agreement from the employer or a determination of the tribunal as to the degree of permanent impairment, after which a writ is issued. In that situation it would simply not make sense to say that, because there was no cause of action prior to the agreement or determination, the worker did not realise the significance of the injury before seeking an agreement or determination.
10. As a general rule, the words of a statutory provision should be given their ordinary literal meaning: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 26 CLR 129 at 161-162; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. There is no reason to give a special meaning to the words "sufficiently significant to warrant bringing proceedings" in par (c) of the definition of "date of discoverability". The result is that a limitation period can commence to run before a plaintiff has a cause of action. That is a very unusual result that is brought about by s 138AB. But it is not an absurd result. In my view there is no principle of statutory interpretation that warrants a different result.
11. There is a line of cases in which it has been held that, when there is a statutory requirement to give notice of a claim, a limitation period does not commence to run at the time when the notice is given, but at the time when it would ordinarily commence to run in the absence of any such statutory requirement: Harding v Lithgow Corporation [1937] HCA 46; (1937) 57 CLR 186; Johnson v Hill [2002] 2 Qd R 486. However those cases provide no support for the conclusion that I have reached. Those cases were decided on the basis that the notice requirement relates to the mode of enforcing a liability, not the validity of the liability: Harding v Lithgow Corporation per Dixon J (as he then was) at 195. When s 138AB applies, there is no liability until there has been either agreement or a determination as to the degree of permanent impairment. Nevertheless, because of the wording of par (c) of the definition of "date of discoverability", time can commence to run before liability has come into existence as a result of an agreement or determination.

1. I have to determine whether, by no later than about 3 September 2008, or by a time three years before the issue of the writ, the plaintiff knew or ought to have known that his personal injury was "sufficiently significant to warrant bringing proceedings". Because the injury occurred in the course of his employment, he was entitled to benefits under the Workers Rehabilitation and Compensation Act. Because of the circumstances of his accident, there was a risk that any award of damages would be reduced because of contributory negligence on his part. If a finding of contributory negligence is made against a plaintiff who has received workers compensation payments, certain amounts paid by way of workers compensation have to be brought into account in assessing damages, but then fully deducted after the reduction for contributory negligence: Workers Rehabilitation and Compensation Act, s 133. If the expenses are very high, and the reduction for contributory negligence is very high, it is possible for a plaintiff, in an extreme case, to prove negligence but to recover nothing by way of damages. If the discount rate applicable to the assessment of damages to compensate for future losses is unrealistically high, and the provisions in the workers compensation legislation as to the payment of future expenses are unrestricted or not greatly restricted, then the bringing of damages proceedings by a seriously injured person might be disadvantageous.
2. If an injured worker obtains a judgment for damages in respect of his or her injury, any rights to further payments of workers compensation are extinguished: Workers Rehabilitation and Compensation Act, s 133(2). In this case, the plaintiff had to make a strategic decision whether to rely solely on his rights under that Act and not sue for damages, or whether to sue for damages. To make that decision, he needed to consider the extent of the available workers compensation benefits, his chances of establishing that Windsor Agencies was liable for damages for negligence, the amount of damages likely to be assessed if an action were successful, the likely reduction for contributory negligence, and the likely judgment sum after reductions in relation to contributory negligence and past workers compensation payments.
3. The plaintiff contends that all of those considerations must be taken into account in determining whether, at any particular date, he knew or ought to have known that his injury was sufficiently significant to warrant bringing proceedings. Allianz contends that the considerations relating to workers compensation are irrelevant to that issue. Essentially it contends that by September 2008 the plaintiff was well aware that his injuries were serious enough to entitle him to substantial damages, and that any question of whether he would be better off relying solely on workers compensation entitlements is irrelevant.
4. There have been a number of cases in New South Wales in which courts have had to consider what matters are relevant in relation to a statutory provision similar to par (c) of the Tasmanian definition of "date of discoverability". Under s 50D(1)(c) of the Limitation Act 1969 (NSW), a cause of action is "discoverable" by a person on the first date that that person knows or ought to know certain facts including, in the case of injury, "the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action". I am not aware of any case in that State in which a court has had to decide whether the availability of workers compensation entitlements is relevant or irrelevant to the statutory concept of discoverability. However there are a number of cases that are relevant to the question that I have to decide.
5. The leading case in relation to s 50D(1)(c) is Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454, a decision of the Court of Appeal. In that case Basten JA, with whom Ipp JA and Macfarlan JA agreed, considered the significance of some legislative provisions that have no equivalent in Tasmania. At [41]-[43] his Honour said this:

"... the injury must not only be understood to be serious, but sufficiently serious to justify a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being 'of a decisive character' for the purposes of s 57B(1)(c), set out at 458 [12] supra. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one knowing those facts and having taken the appropriate advice on those facts would hold the identified opinion.

The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, for example, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind.

It is also appropriate that s 50D be read in a broader context. Thus, a claim for damages for personal injury, brought by a solicitor, must be accompanied by certification in accordance with the Legal Profession Act 2004, s 347. The statement of claim in the present case bore such a certification which read: I certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success."

1. At [46], his Honour quoted with approval some comments made by Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd (2008) 7 DCLR(NSW) 134; [2008] NSWDC 70, at [25] and [26]:

"... The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law.

In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist."

1. Rawle had nothing to do with any question of whether, because of the availability of workers compensation entitlements, an injury was not sufficiently serious to justify the bringing of an action for damages. Goldring DCJ made comments in relation to workers compensation legislation that imposed a threshold requirement of a whole person impairment of at least 15%, motor accidents legislation that imposed a threshold requirement of a whole person impairment of at least 10%, other legislation that imposed a threshold requirement of satisfying a court that the plaintiff had a significant injury, and legislation requiring legal practitioners to certify as to the merits of a case, and to be subject to sanctions if such certification was wrongly given.
2. Some comments about the judgment of Basten JA in Baker-Morrison were made by R A Hulme J in Harris v Woolworths Ltd [2010] NSWSC 25. At [181] and [182], his Honour said:

"Sections 50C and 50D are concerned with when a cause of action is discoverable, not with the prospects of success of any proceedings brought in respect of it. It might be patently obvious that an injury and its effects are sufficiently serious to exceed all of the thresholds that have been referred to but the evidence to prove the claim might be entirely deficient. It would be anomalous if it could be said that the cause of action is not discoverable until more evidence became available to satisfy a lawyer that there was a reasonable prospect of success.

Moreover, I do not understand Basten JA to have held that all of the heads of damages that might be available must be known to the person. To know that an injury is sufficiently serious to justify the bringing of an action requires legal and medical expertise, as I have earlier referred to his Honour having said. But the degree to which matters within such expertise need to be known with precision will depend upon the circumstances of the individual case. There will be cases in which it will be patently and immediately obvious that an injury is so serious that all of the statutory thresholds will be exceeded without having to wait until the injury has stabilised. There will be cases in which it will be obvious that some thresholds will be exceeded whilst others cannot yet be determined. The nature of the thresholds will then require consideration in order to decide whether it was possible to determine at that point that the bringing of an action is justified, or whether such a determination could only be made at a later point when the position is clearer."

1. The discoverability provisions in the New South Wales legislation were considered by five judges of that State's Court of Appeal in New South Wales v Gillett [2012] NSWCA 83. That case was primarily concerned with an issue as to a plaintiff's awareness of fault on the part of the defendant. The principal judgment was delivered by Beazley JA (as she then was), with whom the other members of the Court agreed. Some supplementary comments were made by Campbell JA. Those comments were agreed with by McColl, Young and Whealy JJA. At [131], after referring to Baker-Morrison, Campbell JA said:

"For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing."

1. In the light of what has been said in the New South Wales cases, it seems clear enough that the question whether a plaintiff knew or ought to have known that an injury "was sufficiently significant to warrant bringing proceedings" must be determined with all legislative provisions relevant to the recovery of compensation and damages being taken into account. It would be ludicrous if legislative provisions that were likely to render a damages action fruitless or inadvisable had to be ignored simply because, but for the existence of workers compensation legislation, a significant sum might be recovered by way of damages.
2. It therefore follows that in this case, in order to determine when the plaintiff knew or ought to have known that his injuries were "sufficiently significant to warrant bringing proceedings", it is appropriate to take into account all of the factors relevant to a decision whether he would be better off relying solely on workers compensation benefits and not claiming damages.
3. The evidence as to the plaintiff's awareness of the merits or otherwise of a damages claim can be summarised as follows:
   • On 16 June 2008, his solicitors obtained a report of Associate Professor Stark which assessed his whole person impairment as at least 84%.
   • On 3 September 2008 - the date relied on in par 16 of the defence - Allianz sent his solicitors a cheque for 90% of the maximum amount payable under s 71(1)(c) of the Workers Rehabilitation and Compensation Act when a worker suffers a whole person impairment of more than 70%.
   • Although the plaintiff's solicitors had been engaged less than three weeks after he was injured, the situation as at 3 September 2008 - less than six months after the accident - was that they were still investigating the merits of a damages claim, and had not advised him as to whether or not such a claim should be pursued.
   • On 5 December 2008 the plaintiff's solicitors wrote to him advising as to the merits of a damages claim. They advised that a reduction of 50% for contributory negligence was quite likely, and that failure to establish negligence was possible. They suggested that, after allowing for contributory negligence and workers compensation payments, he might recover some $710,000 by way of damages but that, if he did not pursue the damages claim, there would be "greater certainty", and he would potentially be entitled to $1,188,480 to $1,514,800 by way of future workers compensation entitlements.
   • Having received that advice, the plaintiff did not then pursue a claim for damages.
   • There is no evidence that the plaintiff had any reason to change his mind as to whether damages proceedings were warranted prior to 21 February 2009. That date is a critical date because the writ was issued three years later, on 21 February 2012.
   • It was not until February 2010 that steps were taken by the plaintiff's solicitors to enable him to lodge an election to claim damages pursuant to s 138AB of the Workers Rehabilitation and Compensation Act.
4. The prediction by the plaintiff's solicitors on 5 December 2008 as to the likely outcome of a damages action was significantly different from the outcome when I made findings as to liability and contributory negligence, and assessed damages, in 2013. In particular, there was an enormous variation between the solicitors' prediction and my assessment in relation to damages to compensate for future expenditure on carers. The solicitors estimated that $1,396,560 to $1,745,700 would be awarded under that head. However I assessed the damages under that head in the sum of $5,164,000: Mercer v Allianz Australia Insurance Limited (No 2) (above) at [97]. The reasons for that great discrepancy were as follows:
   • The solicitors made no allowance for higher hourly rates being payable to carers at nights and on weekends and holidays.
   • The solicitors assumed that the plaintiff would require 80 to 100 hours of paid care per week, but in fact he needed attendant care for 24 hours per day, with a second attendant for three hours per day.
   • The rates charged for attendant care increased between December 2008, when the solicitors provided advice, and July 2013, when I assessed damages.
   • The solicitors erroneously adopted a discount rate of 5% when the correct discount rate was 3%: Civil Liability Act 2002, s 3B(3); Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.
5. When the solicitors provided advice to the plaintiff in December 2008, his residential and care arrangements had not stabilised. He had been discharged from hospital at the end of August 2008. He was still living in Hobart. However he and his wife purchased a ground level unit in East Gosford, New South Wales, and moved there early in 2009. It was only after that move that arrangements were made for carers to look after him in his new home, and the care arrangements stabilised.
6. Until such time as the plaintiff knew or ought to have known of the likely magnitude of the damages for attendant care expenses, I do not think it can be said that he knew or ought to have known that his injury "was sufficiently significant to warrant bringing proceedings", given that substantial workers compensation benefits were available.
7. In determining what the plaintiff "ought to have known", I think it is appropriate to take into account the efforts that the plaintiff made to obtain advice, and the advice that he was in fact given, as distinct from any advice that ought to have been given but was not given. I say that because the relevant provisions in the Limitation Act amount to beneficial legislation, enacted for the benefit of injured plaintiffs. It follows that any ambiguity ought to be resolved in favour of the class of persons intended to be benefited by the provisions. Not treating knowledge that solicitors ought to have had as knowledge that their client ought to have had is consistent with the approach taken by Dawson J in Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 at 259, though that case concerned differently worded statutory provisions.
8. It is clear that, after receiving the letter from his solicitors dated 5 December 2008, the plaintiff did not know how enormous his entitlement to damages was likely to be. As at 3 September 2008 - the date referred to in the relevant paragraph of the defence - he did not know that his injuries were so significant that it would be appropriate to sue for damages rather than relying on workers compensation entitlements. There is no evidence that he knew or ought to have known anything more about the merits of bringing damages proceedings by 21 February 2009, three years before the issue of the writ. I am not satisfied that on or about 3 September 2008, or that at any time more than three years before the issue of the writ, the plaintiff knew or ought to have known that his personal injury was sufficiently significant to warrant bringing proceedings. The limitation defence must therefore fail.

1. For these reasons I determine that the plaintiff's action and remedy are not statute barred.