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[2009] WADC 123
plaintiff. Leave to bring action granted under s 6(3) Crown Suits Act 1947; plaintiff granted leave to commence proceedings despite non-compliance with statutory notice and time limit (para 31).
The plaintiff, a social worker injured in a 2003 stair fall, did not give the statutory Crown notice nor commence court proceedings within one year. Seeking leave under s 6(3) Crown Suits Act, the Court held there was no reasonable excuse for failing to give notice but accepted there was a reasonable cause for delaying commencement while medical evidence and disability percentages were obtained. The State failed to show material prejudice from the late notice (despite the death of a witness) because contemporaneous workers' compensation material and internal opportunities to investigate meant the State was not materially disadvantaged. Leave to sue was granted.
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On 22 August 2003 the plaintiff, Vivienne Grace Weir, employed by the Department of Child Protection as a social worker, fell down a lower flight of stairs in the Department's premises and sustained injuries (plaintiff affidavit summarized at para 6). She pursued and received workers' compensation benefits. Over subsequent years she sought legal advice about a possible common law claim against the State (paras 6(g)-(o)). Her solicitors obtained medical assessments which, by February 2007, indicated a whole body permanent impairment exceeding 30 per cent, the threshold for a common law claim on the evidence she had been given (para 6(n)-(o)). The plaintiff did not give the statutory notice required by s 6(1)(a) Crown Suits Act 1947 within the statutory period, nor did she commence proceedings within one year of the accrual of the cause of action. Her solicitors first articulated the bases of a proposed common law claim to the State's solicitors by letter dated 24 January 2008 (para 6(t)). An informal conference took place on 20 February 2009 (para 6(u)). The plaintiff then applied to the District Court under s 6(3) for leave to bring proceedings up to six years from accrual despite the non-compliance (para 2). Scott DCJ heard the application, considered whether the delay in giving notice and in commencing proceedings was excusable, and whether the State was materially prejudiced by the delay; he ultimately granted leave (paras 2, 16, 20, 30-31).
3 cited instruments linked from this judgment.
The decision turns on the two alternative predicates in s 6(3)(b) Crown Suits Act: (1) whether the failure to give notice or the delay in bringing the action was 'occasioned by mistake or by any other reasonable cause', and (2) whether the Crown is 'not materially prejudiced in its defence or otherwise by the failure or delay' (para 2). The judge applied the established definition of 'reasonable cause' from Quinlivan v Portland Harbour Trust as "a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man" ([1963] VR 25; quoted at para 15).
Scott DCJ conducted a bipartite analysis:
Notice: The Court found there was no reasonable cause to excuse the plaintiff's failure to give the statutory notice. The judge reasoned that the plaintiff's advisers could and should have notified the State earlier, and could have couched the notice to say proceedings would not be commenced until the percentage disability was determined (para 16). The statutory notice exists to permit defendants to make appropriate enquiries early (para 17).
Delay in commencing proceedings: The Court accepted that there was reasonable cause to delay commencing proceedings. The plaintiff had been advised to await stabilisation of injuries and obtain medical evidence to determine whether she met the whole body permanent impairment threshold (paras 19-20). The Court assessed that it was reasonable for the plaintiff, on the advice received, to delay bringing a District Court action until the medical situation and prospects were clearer.
Having accepted reasonable cause for delay in commencing, the judge proceeded to the prejudice question. The State relied upon the death in September 2007 of a potentially significant witness, Ms Lani Kaszanski, arguing that the State could no longer explore or challenge a later-advanced factual contention that the colleague's presence distracted the plaintiff and caused her to miss the step (paras 22-23). Scott DCJ examined contemporaneous workers' compensation material and departmental witness statements showing that the State was alerted in August 2003 to the colleague's proximity and that statements and opportunities to investigate were available at that time (paras 28(a)-(c)). Additional evidence, including a team leader's affidavit, indicated the colleague acknowledged possibly having distracted the plaintiff and that the plaintiff had expressed she was looking up and talking to the colleague as she fell (para 28(d)-(e)). Given that the Department had contemporaneous notice and opportunities to take further statements from Ms Kaszanski in 2003, the Court concluded the State was not materially prejudiced (paras 29-30). On that basis leave was just and granted (para 31).
Before this decision, s 6(3) was the settled statutory mechanism in Western Australia for allowing the Crown to be sued outside the statutory notice and one-year commencement restrictions, subject to reasonableness and prejudice tests. The definition of 'reasonable cause' in this statutory context had previously been articulated in Quinlivan v Portland Harbour Trust and was applied here as the governing standard (para 15).
After Weir, the practical application is underscored: a court will require concrete factual justification to excuse failure to give statutory notice. Mere waiting for medical evidence may excuse delay in commencing proceedings where the plaintiff can demonstrate it was reasonable to wait; however, that does not automatically excuse failure to give statutory notice, notice should have been given earlier, even if framed conditionally (para 16). On prejudice, a defendant must point to specific disadvantage traceable to the delay; contemporaneous documents and opportunities to investigate will weigh heavily against a claim of material prejudice (paras 21, 28-30).
Thus the decision clarifies three points: (1) the Quinlivan test remains authoritative; (2) delay in commencing can be excused by reasonable medical/legal strategy but notice obligations are independently enforceable; and (3) the material prejudice inquiry is fact-sensitive and focused on whether the defendant's ability to defend has been materially impaired.
Statutory test (para 2): The Court set out s 6(3) verbatim. Plain-English: The Court may allow a late claim within six years if the delay or failure to notify was reasonable or the Crown is not unfairly harmed by the delay.
Definition of 'reasonable cause' (para 15, quoting Quinlivan): Plain-English: 'Reasonable cause' means a genuinely good reason that a sensible person would accept for delaying notice.
On notice (para 16): "There was no reasonable cause for the delay in giving the required notice." Plain-English: The plaintiff could and should have told the State earlier about the possible claim; if necessary she could have stated she would not start court proceedings until disability was resolved.
On purpose of notice (para 17): "The very purpose of the statutory notice is to enable a defendant to make appropriate enquiry." Plain-English: Notice exists so the defendant can investigate early, it is not merely a formality.
On material prejudice (paras 28-30): The Court summarised contemporaneous statements and departmental opportunities to investigate, concluding the State was not materially prejudiced by the delay. Plain-English: Because the State already had leads and chances to question the key witness in 2003, the later death of that witness did not meaningfully stop the State from defending the case.
Disposition (para 31): "The plaintiff will have leave to bring her action against the defendant." Plain-English: The Court allowed the late claim to proceed.
This decision is most directly relevant where:
A claimant against the Crown did not give the statutory notice under the Crown Suits Act and did not commence proceedings within one year, but seeks leave under s 6(3) within six years (paras 2, 31).
The claimant delayed initiating proceedings to await medical stabilisation or expert evidence that determines whether a threshold condition for a common law claim is met (paras 19-20).
A defendant alleges material prejudice tied to the unavailability or death of a witness, and there exists contemporaneous material (workers' compensation forms, initial statements, internal departmental records) showing the defendant had notice of the key events and opportunities to investigate (paras 22, 28-30).
The claimant can show that, although notice was not given, the reasons for delaying commencement were reasonable, and the defendant cannot point to a specific, material impairment to its defence caused by lack of earlier notice (paras 20, 21, 30).
This deep dive is confined to the single judgment at hand. The judgment cites and follows Quinlivan for the meaning of 'reasonable cause' (para 15). Practitioners should expect subsequent courts to apply the same two-step analysis: assess reasonableness for notice and/or delay and assess material prejudice on the facts, with contemporaneous administrative and claim materials being persuasive evidence that prejudice has not occurred. The decision illustrates that a defendant's generic claim of prejudice from a witness's later unavailability will not suffice where it had early opportunities to investigate.
Interaction between notice and delay: The Court excused delay in commencing proceedings but not failure to give statutory notice. The precise boundary remains fact-sensitive: would different factual presentations (for example, ongoing, active advised litigation strategy specifically advising non-disclosure to preserve mediation prospects) amount to reasonable cause to delay notice? The judgment suggests conditional notices are a practical option (para 16), but leaves open how courts will treat particular strategic reasons for withholding notice.
Material prejudice quantification: What degree of evidentiary loss or specific inability to defend will constitute 'material prejudice'? Weir indicates contemporaneous records undermining a prejudice claim are powerful; however, the threshold for 'material' prejudice remains case-dependent.
Privilege and disclosure consequences: The Court found privilege issues raised by the defendant not material to disposition (paras 8-13). Future cases may yet test tensions where privilege assertions intersect with s 6(3) evidence and prejudice arguments.
Relevance of workers' compensation processes: Here, workers' compensation contemporaneous statements significantly undermined the State's prejudice claim. It remains open how courts will treat cases where no parallel statutory compensation process exists to generate contemporaneous statements.
Practitioners advising claimants or the Crown should take from Weir the practical lessons: give statutory notice where possible, because conditional notice can preserve options; document contemporaneous facts and witness accounts promptly; and if delaying commencement for medical reasons, maintain clear documentary evidence of why delay is reasonable.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : WEIR -v- STATE OF WESTERN AUSTRALIA [2009] WADC 123
Application for leave to bring action under s 6(3) of the Crown Suits Act 1947 - Grant of leave - Reasonable cause for delay - Material prejudice
Quinlivan v Portland Harbour Trust [1963] VicRp 5; (1963) VR 25
1 SCOTT DCJ: This is an application by the plaintiff for leave to bring an action for damages arising out of injuries suffered by her on 22 August 2003 when she was employed by the Department of Child Protection ("Department") as a social worker.
2 Relevantly s 6 of the Crown Suits Act 1947 ("Act"), (now repealed but in force at the date of the injury sustained by the plaintiff), provided:
"(1) Subject to the provisions of subsections (2) and (3), no right of action lies against the Crown unless -
(a) the party proposing to take action gives to the State solicitor, as soon as practicable or within three months (whichever of such periods is the longer) after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based ... and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued.
(a) notwithstanding the foregoing provisions of this section application may be made to the Court ... for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the Crown;
(b) where the Court considers that the failure to give notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose ..."
3 The plaintiff did not give notice to the State Solicitor in accordance with s 6(1)(a) of the Act and nor was action commenced before the expiration of one year from the date on which the cause of action allegedly accrued.
4 During the course of argument before me counsel for the defendant submitted that the defendant's position was that, pursuant to the provisions of s 6(3) of the Act the only matters in issue were whether the plaintiff had satisfied the Court:
(a) that the failure to give the notice or the delay in bringing the action was occasioned by any reasonable cause; or
(b) that the defendant was not materially prejudiced in its defence or otherwise by the failure or delay.
5 Counsel for the defendant said that the defendant did not contend, if either of these prerequisites were satisfied, that it would not be just to grant leave.
Plaintiff's affidavit sworn 14 July 2009 ("plaintiff's affidavit")
6 In the plaintiff's affidavit she deposed to the following:
(a) On 22 August 2003 she was employed by the Department as a social worker.
(b) At about 12.30 pm she was descending a set of stairs from the first floor of the Department's premises to the ground floor. Those stairs consisted of two short flights of stairs with an intermediate landing.
(c) She had descended the first flight of stairs and Ms Kaszanski, a colleague, was ascending the lower flight of stairs and approaching the landing where she was standing. The plaintiff was standing to the left side of the stairs where there was no hand-rail with Ms Kaszanski ascending the stairs on her right hand side where there is a hand-rail.
(d) Ms Kaszanski arrived at the top of the lower flight of stairs, the plaintiff turned sideways to enable her to pass and they acknowledged each other. The plaintiff turned back towards the stairs, went to place her foot on the top step, missed the step and fell approximately eight steps to the bottom of that flight.
(e) She made a workers' compensation claim for the injuries sustained by her and has utilised her full statutory entitlement to weekly payments and medical expenses payable pursuant to the Workers' Compensation and Injury Management Act 1981 ("Workers' Compensation Act").
(f) She attended on various medical practitioners with respect to the injuries alleged to have been suffered by her and details of relevant progress medical certificates in her workers' compensation claim are detailed in the plaintiff's affidavit.
(g) She first met with her solicitors, Messrs Ilberys, on 8 January 2004 and was advised by them that the circumstances of her claim may give rise to a common law claim against her employer for having an unsafe system of work or unsafe premises but that to be eligible to bring that claim she needed to obtain medical evidence to the effect that she had a degree of disability of not less than 16 per cent but not more than 29 per cent or a degree of disability of not less than 30 per cent.
(h) In or about February 2004 she was advised by her solicitors that she would be unable to bring a claim against her employer at common law unless it was established that she had a whole body permanent disability of not less than 30 per cent.
(i) She was advised that the medical evidence did not indicate that she was likely to be able to obtain evidence to establish that she had a whole body permanent impairment of not less than 30 per cent.
(j) She then continued to receive medical treatment for her injuries. In or about September 2005 she was advised by her solicitors that on the basis of the existing medical evidence it was premature to seek an assessment of her whole body permanent disability until an injury to her knee had stabilised.
(k) In about July 2006 she was advised by her solicitors that she seek assessments of her whole body disability from a number of medical practitioners including a psychiatrist and that if she was able to secure medical evidence to the effect that her whole body disability was not less than 30 per cent then she should seek a formal determination of that extent of disability before proceeding with any District Court action.
(l) She met with Ilberys on 21 August 2006 and instructed them that she wished to consider the prospects of pursuing a common law claim against her employer.
(m) It was not until November 2006 that she instructed Ilberys to seek expert evidence regarding the prospects of a common law claim.
(n) By February 2007 medical assessments had been obtained to the effect that her degree of whole body disability exceeded 30 per cent.
(o) Messrs Ilberys had since November 2006 been in consultation with an expert with respect to the issue of liability but the report from the expert had not been received until October 2007 at which time in accordance with the legal advice she had received from Ilberys the plaintiff believed that she had prospects of success on a common law claim against the Department.
(p) Ilberys had obtained from the Department, pursuant to the Freedom of Information Act 1992, a number of documents indicating that there had been previous accidents on the stairwells.
(q) On 21 September 2007 Ilberys wrote to Risk Cover providing it with copies of relevant medical reports with a view to resolving the issue of percentage body disability.
(r) That percentage was not agreed and as a consequence on or about 15 October 2007 a Form 22 was lodged, agreement from the Department as to percentage disability not having been reached and in early 2009 the Department conceded that the plaintiff's whole body permanent disability was not less than 30 per cent.
(s) On or about 17 September 2007 Ms Kaszanski passed away.
(t) By letter dated 24 January 2008 Ilberys wrote to Kott Gunning the solicitors for the defendant outlining the grounds upon which any common law claim would be pursued against the defendant.
(u) On 20 February 2009 an informal conference was held between the parties and their advisers ("informal conference") however settlement of the plaintiff's common law claim was not effected. As a consequence this application was made.
7 A writ of summons endorsed with a draft statement of claim was exhibited to the plaintiff's affidavit.
8 In a number of documents which have been filed by the defendant, reference is made to matters arising at the informal conference the substance of which I was told during argument is that, that was the first occasion upon which it was made known to the defendant that the distraction to the plaintiff of the presence of Ms Kaszanski on the stairwell was alleged by the plaintiff to be a causative effect of her missing the step and falling.
9 Reference to that matter is said to be contained in the following documents:
10 I have not read those excerpts and my awareness of the substance of the contents is restricted to the matters referred to during the course of argument. The defendant has conceded that par 6 of the affidavits of Franklin and Rowland and annexure SRF1 should not be relied on in this application conceding there to be a breach of privilege but submits that the remaining references ought to be considered.
11 I do not consider that the issue of legal professional privilege is a matter relevant to my disposition of the issues arising in this application. Insofar as the issue of delay is concerned it is hard to understand why the plaintiff would press for the exclusion of this information which, as I understand it from submissions made by counsel to me at the time of the hearing of this application, relate only to the defendant's contention that the fact of Ms Kaszanski's alleged role was first made known to it during the course of the informal conference. If that fact was to be excluded from the evidentiary matters to be considered by me then I would have thought that could only be to the plaintiff's detriment because the position might then be, absent evidence of that fact, that the defendant first became aware of Ms Kaszanski's role when this application was made some six months after the conference.
12 Further, insofar as material prejudice is concerned, the defendant's counsel submitted that in this case the prejudice to the defendant crystallised on the death in September 2007 of Ms Kaszanski. That is the relevant date upon which that issue falls for determination.
13 In those circumstances, insofar as the issues of delay or material prejudice are concerned, the matters about which the plaintiff complains concerning a breach of legal professional privilege are not relevant to the disposition of this application and I do not propose to make any determination with respect thereto.
14 The notice which is required to be given to the State Solicitor in accordance with s 6(1)(a) of the Act must provide reasonable information of the circumstances upon which the proposed action will be based. In this case that notice was not given before receipt by the solicitors for the defendant of the correspondence from Messrs Ilberys dated 24 January 2008 at which time the solicitors for the plaintiff articulated the bases upon which liability for the injuries alleged to have been suffered by the plaintiff was caused by the defendant.
15 The term "reasonable cause" was explained by Sholl J in Quinlivan v Portland Harbour Trust [1963] VicRp 5; (1963) VR 25 at 28 as:
"... a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
16 In my view there was no reasonable cause for the delay in giving the required notice. It would have been reasonable for the plaintiff by her advisers to make it known to the defendant, far earlier than January 2008, the bases upon which the plaintiff maintained that the defendant was liable for the injuries sustained by her. Even if the plaintiff's injuries had not by then stabilised and a percentage total body disability by then not established, there was no reason that the plaintiff by her advisers could not have given the required notice to the defendant - couched if they wished in terms that proceedings would not be commenced until the issue of percentage disability was capable of being resolved or determined.
17 The very purpose of the statutory notice is to enable a defendant to make appropriate enquiry into the circumstances of a possible claim which may leave it exposed.
18 Insofar as delay in bringing the action is concerned, the delay is to be calculated to the date upon which this application for leave was made.
19 To that end the plaintiff was exposed to costs in the event that she instituted proceedings against the defendant before her percentage disability was agreed or determined to be not less than 30 per cent. That was the advice which she received from her solicitors and in my view it was reasonable advice.
20 In my view, on the evidence there was reasonable cause for the delay in bringing the action. However, there remains the unexcused failure on the part of the plaintiff to give the requisite notice.
21 It is for the defendant to raise facts which may give rise to the material prejudice suffered by the plaintiff's failure to give notice to it pursuant to the Act whereupon the overall burden rests with the plaintiff to satisfy the Court that the defendant will not be materially prejudiced by the plaintiff being granted leave to bring the action.
22 The material time for consideration of the question of prejudice is the time of the application. In this case however as I have said, the defendant's contention is that the prejudice to it results from the death of Ms Kaszanski in 2007 by which time the defendant alleges that it was not aware that the plaintiff's allegation was that the presence of Ms Kaszanski on the stairs played a significant causative role in the occurrence of the fall which resulted in the injuries sustained by the plaintiff. The defendant submits that it is now not open to the defendant to further question Ms Kaszanski and thereby ascertain whether the history of the fall now presented by the plaintiff is sustainable. As a result the defendant will be prejudiced in its ability to properly meet the plaintiff's claim.
23 The defendant submits that the assertion by the plaintiff, contained in par 6 of the plaintiff's affidavit and par 7 of the draft statement of claim annexed thereto, is that because of the presence of Ms Kaszanski on the stairs the plaintiff was forced to undertake bodily movements and was forced to adopt a position on the side of the stairs which was not fitted with a hand-rail.
24 It is true that in the draft statement of claim the plaintiff alleges:
25 However, par 6 of the plaintiff's affidavit is not consistent with that draft pleading nor the submissions made by the defendant as to its contents. In par 6 of the plaintiff's affidavit she deposes to the following:
"The stairs consist of two short flights of stairs with an intermediate landing. I had descended the first flight of stairs and was standing on the landing. Ms Lani Kaszanski, a colleague, was ascending the lower flight of stairs and approaching the landing where I was standing. I was standing to the left side of the stairs where there is no hand rail. Ms Kaszanski was ascending the stairs on my right hand side where there is a hand rail. As Ms Kaszanski arrived at the top of the lower flight of stairs I turned sideways to enable her to pass and we acknowledged each other. I turned back towards the stairs and went to place my foot on the top step, however I missed the step and fell ..."
26 Counsel for the plaintiff said during the course of his submissions that the evidence of the plaintiff would be in accordance with the plaintiff's affidavit and acknowledged that the draft statement of claim inadvertently did not reflect the facts deposed to in par 6 of the plaintiff's affidavit. Specifically in that paragraph the plaintiff does not say that she moved her position to the left on the staircase to accommodate Ms Kaszanski.
27 The substance of the defendant's submission on material prejudice is that the assertion of the plaintiff that the presence of Ms Kaszanski on the stairwell/landing resulted in the plaintiff being distracted and was causative of her missing the step when she turned to descend was not made known to it until after the death of Ms Kaszanski thereby rendering it impossible for the defendant to take more comprehensive instructions from Ms Kaszanski pertaining to those assertions.
28 Having considered all the evidence before me I am satisfied that the defendant is not materially prejudiced for the following reasons:
(a) In her workers' compensation claim form (Exhibit "SRF1" to Franklin's affidavit) the plaintiff states that she "was acknowledging a work colleague as going down stairs, missed top step and just fell down the stairs" which alerted the defendant to the fact that Ms Kaszanski was in the proximity of the plaintiff.
(b) In her personal statement in the workers' compensation proceedings dated 27 August 2003 the plaintiff said "I was walking down the first lot of stairs. Another worker was coming up the stairs. I said hello to the worker and I went to go down the next lot of stairs and seemed to miss the step." It is evident from that statement that the plaintiff was saying that as she was walking down the stairs Ms Kaszanski was coming up the stairs at which time the plaintiff said hello to her. As a consequence there is at least some indication of distraction to the plaintiff.
(c) In her statement in the workers' compensation proceedings dated 27 August 2003 Ms Kaszanski proffers a different factual scenario. She said that the plaintiff "was descending a staircase and I (Ms Kaszanski) had ascended onto the first floor. I heard a thud, looked over the railing and sighted Viv facing downwards on her stomach at the foot of the staircase ...". That is a different scenario from the statements made by the plaintiff. Ms Kaszanski in her statement does not deal with the assertion of the plaintiff that she said hello to her when Ms Kaszansk was ascending the stairs notwithstanding that that information was available to her. It was open to the Department to raise that issue with Ms Kaszanski in August 2003 and take a further statement if it saw fit.
(d) In the affidavit of Wilhelmina Clark sworn 4 August 2009 Ms Clark deposes to the fact that she is and was in 2003 a team leader employed by the Department. She said that she arrived at the upper landing of the staircase within a few seconds of hearing the noise (of the plaintiff falling). She found Ms Kaszanski standing at the landing at the top of the stairs by which time the plaintiff was on the floor at the bottom of the lower flight of stairs.
(e) In that affidavit Ms Clark says that Ms Kaszanski told her that she felt she may have distracted the plaintiff as she was talking to the plaintiff as she was walking down the stairs and that the plaintiff had been looking up at her (Ms Kaszanski) as she fell. Ms Clark also says that sometime after the accident she spoke to the plaintiff and the plaintiff told her that as she had fallen she had been looking up and talking to Ms Kaszanski.
29 There is no explanation as to why these matters were not taken up with Ms Kaszanski and further information and any statement then obtained from her if she had more to add. Ms Clark would appear to have been a person with some degree of seniority in the Department and there is no explanation as to why these matters, pointing to an assertion of distraction made by the plaintiff and Ms Kaszanski was not pursued when that opportunity must have been available.
30 In the circumstances I am satisfied that the defendant has not suffered material prejudice consequent upon the delay by the plaintiff in bringing the action.
31 The plaintiff will have leave to bring her action against the defendant.
Quinlivan
Portland Harbour Trust
Leave to bring action granted under s 6(3) Crown Suits Act 1947; plaintiff granted leave to commence proceedings despite non-compliance with statutory notice and time limit (para 31).