Fatal Accident - Claim by widow of deceased on behalf of herself and infant children - Nature of rights created by fatal injuries legislation - Whether claim on behalf of widow barred by effluxion of time.

Compensation (Fatal Injuries) Act 1968 (A.C.T.), ss.4(2), 7, 8, 13, 14

Limitation Ordinance 1985 (A.C.T.), ss.7(1), 8(1), 8(3), 16, 30, 39, 52

and Mr B. Meagher

Solicitors for the appellant : Higgins

Counsel for the first respondent : Mr D.F. Rofe QC

and Mr B. Hull

Solicitors for the first respondent : Wood Fussell and Co.

Counsel for the second and third : Mr P.A. Coppel respondents

Solicitor for the second and third

1. The appeal be allowed.

2. The orders made by the Supreme Court of the

Australian Capital Territory on 27 June 1989 be

varied by substituting for the order that the

application be dismissed an order that the time

within which Neva Noja, as the personal

representative of Michael Noja deceased, might

commence an action on a cause of action arising

under the Compensation (Fatal Injuries) Act 1968

(A.C.T.) on her own behalf and for her own benefit

against Civil and Civic Pty Limited, Gilbert Frank

Williams and the Commonwealth of Australia in

respect of the death of Michael Noja be extended up

to and including 10 November 1987.

3. The respondents Civil and Civic Pty Limited and the

Commonwealth of Australia pay the appellant's costs

of the appeal, the costs being borne by those

respondents as between themselves in equal shares.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Neva Noja ("the appellant") has appealed to this Court, by leave, from an interlocutory judgment of the Supreme Court of the Australian Capital Territory given on 27 June 1989. The respondents to the appeal are Civil and Civic Pty Limited ("the first respondent"), Gilbert Frank Williams ("the second respondent") and the Commonwealth of Australia ("the third respondent"). The judgment from which the appeal is brought dismissed an application by the appellant pursuant to s.39(4) of the Limitation Ordinance 1985 (A.C.T.) for an extension of the limitation period applicable under s.16 of that Ordinance in respect of an action on a cause of action arising under the Compensation (Fatal Injuries) Act 1968 (A.C.T.) (then known as the Compensation (Fatal Injuries) Ordinance 1968) commenced in the Supreme Court by and in the name of the appellant as the person to whom administration of the estate of her husband, Michael Noja, deceased, had been granted.

2. The action in the Supreme Court was commenced by writ of summons issued on 10 November 1987. The writ was accompanied by a statement of claim. The action is between the appellant as plaintiff and Peter Drakakis and Angela Drakakis (the first defendants), Nasuyu Pty Limited (the second defendant), Lend Lease Development Pty Limited (the third defendant), Permanent Trustees Nominees (Canberra) Limited (the fourth defendant), Civil and Civic Pty Limited (the fifth defendant), Gilbert Frank Williams (the sixth defendant) and the Commonwealth of Australia (the seventh defendant).

3. The statement of claim alleges that the deceased died on 12 March 1984 by reason of a heart attack suffered as a result of a fire which broke out on that day in a building known as the Manuka Village, a shopping complex at Manuka in the Australian Capital Territory ("the building"). It is further alleged that at that time the appellant and the deceased were carrying on the business of jewellers under the name "Rosette Jewellers" in a shop in the building. The fire is alleged to have started when an employee of the first defendants lit a charcoal griller installed in a shop in the building in which the first defendants carried on a business known as the Manuka Village Charcoal Chicken. The fire is said to have caused extensive damage to the whole of the building including the shop occupied by the appellant and the deceased. It is alleged that, after the fire had started and was observed, the deceased vacated the premises and stood watching the fire as it engulfed the building and that, while doing so, he experienced much stress and suffered a heart attack from which he died.

4. The shop occupied by the first defendants is alleged to have been leased to them initially (that is, until May 1982) by the third defendant and later (from May 1982) by the fourth defendant. The second defendant is alleged to have manufactured and supplied an exhaust ventilation system which was installed in the premises occupied by the first defendants. The fifth defendant, the first respondent to this appeal, is alleged to have constructed the building. The sixth defendant, the second respondent to this appeal, is alleged to have been, at the relevant time, the Building Controller in the Australian Capital Territory appointed pursuant to the Building Ordinance 1972 (A.C.T.) and having the powers and duties set out in that Ordinance. The seventh defendant, the third respondent to the appeal, is sued as the employer of the sixth defendant or, alternatively, as the body having the powers and duties set out in the Building Ordinance. Although the fact is not specifically pleaded, it appears to be common ground that the building was completed in 1980, that is to say, more than six years before the proceeding was commenced in the Supreme Court and that none of the respondents to this appeal had any relevant connection with the building after its completion. The appellant does not rely on any act or omission on the part of any of those respondents later than that date.

5. It is alleged that the death of the deceased was caused by the negligence of each of the defendants. Particulars of the negligence alleged against each of the defendants are set out in the statement of claim. It is unnecessary to refer to the particulars in so far as they concern the defendants other than the respondents to this appeal.

6. As against the first respondent, the particulars of negligence are as follows:

"(a) Failing to provide any or any sufficient

sprinklers in the building;

(b) Failing to provide and install fire

walls to separate areas in the ceiling

of the building;

(c) Failing to ensure that fire could not be

spread from one premises in the building

throughout the building;

(d) Failing to warn the owner or developer

of the building to be careful of fire

hazards such as offset ducting;

(e) Failing to heed the advice of the Fire

Brigade concerning the dangers of not

installing sprinklers, fire walls and

other steps to avoid the spread of fire;

(f) Failing to ensure that all installations

and in particular the ducting from the

First Defendants premises in the

building complied with fire regulations

and was otherwise safe in all the

circumstances."

7. Particulars of the negligence alleged against the second and third respondents are:

"(a) Failing to ensure that any or any

sufficient sprinklers were installed so

as to prevent the spread of fire;

(b) Failing to ensure that the fire walls

were placed in the roof void in order to

contain the spread of fire;

(c) Approving the development without

insisting on the provision of sprinklers

and/or fire walls;

(d) Failing to ensure and require the

submission of plans for approval for

subsequent installation including the

installation of the exhaust ducts over

the premises of the First Defendants;

(e) Failing to inspect the premises to

ascertain whether all the building and

installation thereon complied with

approval given and/or complied with fire

safety requirements;

(f) Failing to ensure that the exhaust ducts

installed complied with relevant

standards."

8. Paragraphs 22 and 23 of the statement of claim make the following allegations:

"22. By reason of the death of the deceased

the plaintiff and her children namely

Rosette Noja, Christine Noja, Fadi Noja

and Marcelle Noja have been and will in

the future be deprived of the

maintenance and support and of the

benefit of services which they would

have received from the deceased during

the course of their lifetime and of the

prospect of receiving a share in an

estate which would have been larger but

for the deceased's premature death and

they have suffered damages.

23. The plaintiff brings this action

pursuant to the Compensation (Fatal

Injuries) Ordinance 1968 as amended on

her own behalf and on behalf of her said

children Rosetta Noja, Christine Noja,

Fadi Noja and Marcelle Noja."

It further appears from the statement of claim that Rosette Noja was born on 1 June 1969, Christine Noja on 10 June 1971, Fadi Noja on 3 December 1976 and Marcelle Noja on 7 November 1982.

9. The defence of the third respondent, which was not filed until 13 December 1988, contained the following paragraph:

"8. Further or in the alternative, the

alleged cause of action did not arise

within 3 years before this action and is

barred by Section 9 of the Compensation

(Fatal Injuries) Ordinance 1968."

The second respondent also raised a defence based on effluxion of time. His defence was filed on 24 January 1989, par.8 being in the following terms:

"8. Further or in the alternative, the

alleged cause of action did not arise

within 3 years before this action and is

barred by the combined effect of Section

3(b) Limitation Ordinance 1985 and

Section 9 of the Compensation (Fatal

Injuries) Ordinance 1968."

Each of those defences was subsequently amended by deleting the paragraph set out above and inserting a new paragraph numbered 8. In the case of the second respondent, the paragraph is in the following terms:

"8. Further or in the alternative, this

action was not commenced either within

the period of 6 years immediately

following the alleged wrongful act,

neglect or default of the sixth-named

defendant nor within the period of 3

years immediately following the day of

death of the person alleged to have been

injured by that act, neglect or default

and is accordingly barred by Section 16

Limitation Ordinance 1985."

The paragraph in the third respondent's amended defence is in similar terms substituting the words "seventh-named defendant" for the reference to the sixth-named defendant.

10. The defences filed on behalf of the first, third and fourth defendants -- there being, so far as appears, no defence filed on behalf of the second defendant -- do not raise any issue that the action is barred by effluxion of time. That was also the situation under the defence filed on behalf of the first respondent (the fifth defendant). However, the first respondent, by an amended defence filed on 25 May 1989, has pleaded a defence in similar, though not identical, terms to that pleaded in the amended par.8 in the defences of the second and third respondents.

11. No reply has been filed to the defences filed on behalf of the fifth, sixth and seventh defendants.

12. Each of the defendants other than the second defendant has, in the proceeding in the Supreme Court, made a claim for contribution or indemnity against some or all of the other defendants. In particular, the first, third and fourth defendants make such a claim against each of the respondents to the present appeal.

13. The appellant, on 1 June 1989, gave notice of a motion to be moved in the Supreme Court on 16 June 1989 for orders that:

"1. The period within which an action on the

cause of action particularised in the

Statement of Claim as against Peter

Drakakis and Angela Drakakis, Nasuyu Pty

Limited, Lend Lease Development Pty

Limited, Permanent Trustees Nominees

(Canberra) Limited, Civil and Civic Pty

Limited, Gilbert Frank Williams and

Commonwealth of Australia in respect of

the liability alleged as against each

defendant in the Statement of Claim be

extended for such period as the Court

thinks fit pursuant to Section 39 of the

Limitation Ordinance, 1985.

2. Such other Order as the Court thinks

fit."

14. The motion was supported by the affidavit of William Grant Coombes sworn 1 June 1989 setting out, in terms which are not disputed, the circumstances which led to the proceeding in the Supreme Court not being commenced until 10 November 1987. The text of that affidavit is set out in the reasons for judgment of the Supreme Court and need not be repeated. It is sufficient for present purposes to refer to the relevant circumstances in summary form.

15. The appellant left Australia in late 1984 and travelled to Lebanon from where she returned to Australia in mid-1985. She again travelled to Lebanon in late 1985 and did not return to Australia until mid-1988. Prior to departing for Lebanon in late 1984 the appellant had given certain instructions to her solicitors and preliminary discussions had taken place regarding a possible claim for damages under the Compensation (Fatal Injuries) Ordinance. A decision thereon was to await the outcome of an inquest into the death of the deceased. Letters of administration of her husband's estate were granted to the appellant on 30 October 1984. The findings of the coronial inquest were made public on 5 November 1984. The solicitors, however, did not communicate with the appellant regarding the claim for damages while she was in Lebanon because of assumed difficulties arising from the conditions prevailing in that country although it appears that they did communicate with her in relation to other matters. The solicitor having the conduct of the matter left the firm in June 1985 and it was not until late April 1987, that is more than 3 years after the date of the deceased's death, that the file was perused. Thereafter, steps were taken to obtain counsel's advice and to have the necessary documents drawn to institute the action. However, a further period of approximately seven months elapsed between the date when the file was perused and the date when the action was commenced. An application for the extension of the limitation period was not made at that stage, a decision being taken by the appellant's legal advisers that it would be appropriate to make such an application only if the defendants or any of them sought to rely on s.16 of the Limitation Ordinance by way of defence to the action.

16. At the date of the death of the deceased, 12 March 1984, the Compensation (Fatal Injuries) Ordinance relevantly provided as follows:

"7. Where the death of a person is caused by

a wrongful act, neglect or default and the act,

neglect or default is such that it would, if

death had not ensued, have entitled the person

injured to maintain an action and recover damages

in respect of the injury, the person who would

have been liable if the death had not ensued is

liable to an action for damages notwithstanding

the death of the person injured and irrespective

of whether the death of that person was caused by

circumstances that amount in law to a crime.

8. (1) Not more than one action under this

Ordinance shall be brought against a person in

respect of a death.

(2) Subject to section 13 of this Ordinance,

any such action shall be brought by and in the

name of the personal representative of the

deceased person for the benefit of those members

of the deceased person's family who sustained

damage by reason of his death.

9. An action under this Ordinance shall be

commenced within a period of three years after

the date of the death of the deceased person.

10. (1) In an action under this Ordinance,

the court may award to the parties respectively

for whose benefit the action is brought, such

damages as it may think proportioned to the

injury resulting from the death of the person

injured.

(2) The amount of damages recovered under

this section shall, after deducting the costs not

recovered from the defendant, be divided amongst

the persons for whose benefit the action is

brought in such shares as the court determines.

....

13. (1) Where an action under this Ordinance

has not been commenced by and in the name of the

personal representative of a deceased person

within six months after the death of the deceased

person, any one or more of the persons for whose

benefit an action under this Ordinance may be

brought may bring an action under this Ordinance.

(2) An action brought under this Ordinance

by a person other than the personal

representative of the deceased person shall be

for the benefit of the same persons and subject

to the same provisions and procedures, mutatis

mutandis, as if it were brought by the personal

representative of the deceased person on behalf

of those persons.

14. The writ of summons or other process by

which an action under this Ordinance is commenced

shall, in addition to any other endorsements

required or permitted to be made, be endorsed

with a statement specifying the names of each of

the persons for whose benefit the action is

brought and the relationship of each of those

persons to the deceased person."

The persons who are, for the purposes of the Ordinance, members of a deceased person's family are identified in s.4(2). They include the widow and any child of the deceased person.

17. By the Limitation Ordinance, s.9 of the Compensation (Fatal Injuries) Ordinance was repealed (s.2(6) and the Schedule). The Limitation Ordinance came into operation on 19 December 1985. As the period of three years after the death of the deceased to which s.9 of the Compensation (Fatal Injuries) Ordinance referred had not expired as at the date of commencement of the Limitation Ordinance, it is s.16 of the latter Ordinance which prescribes the relevant period of limitation. That section provides:

"16. An action on a cause of action arising

under the Compensation (Fatal Injuries) Act 1968

in respect of an act, neglect or default

resulting in death is not maintainable after the

expiry of -

(a) the period of 6 years immediately

following the relevant wrongful act,

neglect or default; or

(b) the period of 3 years immediately

following the day of death of the person

injured by that act, neglect or default,

whichever later expires."

The expression "cause of action" is defined in s.8(1) to mean "the fact or combination of facts which give rise to a right to bring a civil proceeding".

18. Subject to certain provisions not presently relevant, the provisions of the Ordinance bind the Crown and the Crown has the benefit of them (s.7(1)).

"30. (1) Subject to sub-sections (2) and (3)

and subject to section 32, where -

(a) a person has a cause of action;

(b) the limitation period fixed by this

Ordinance for the cause of action has

commenced to run; and

(c) the person is under a disability,

then -

(d) the running of the limitation period is

suspended for the duration of the

disability;

(e) if the cause of action is a cause of

action to which section 15 or 19 applies

....;

(f) in any other case, if, but for this

paragraph, the limitation period would

expire before the lapse of 3 years

after-

(i) the date on which he or she last

(before the expiration of the

limitation period) ceases to be

under a disability; or

(ii) the date of his or her death,

(whichever date is the earlier) - the

limitation period is extended so as to

expire 3 years after the earlier of

those dates."

By s.8(3), a person is, for the purposes of the Ordinance, under a disability while he or she is under the age of 18 years. Section 30, sub-ss.(2) and (3) and s.32 are not relevant to the present case. Nor is the cause of action one to which s.15 or s.19 applies.

20. Section 39 makes provision for the extension by the court of the limitation period in relation to an action on a cause of action arising under the Compensation (Fatal Injuries) Act. Sub-sections (1), (2) and (3) apply where, but for the expiry, as against a deceased person, of a limitation period in relation to a cause of action, the personal representative of the deceased person would be entitled to institute proceedings in relation to a cause of action referred to in s.16. Sub-section (3) sets out matters to which the court is to have regard in exercising the powers conferred by sub-s.(1). It provides:

"(3) In exercising the powers conferred on

it by sub-section (1), the court shall have

regard to all the circumstances of the case

including (without derogating from the generality

of the foregoing) the following:

(a) the reasons for the failure of the

person to commence an action before the

expiry of the relevant limitation

period;

(b) whether a significant period of time

elapsed after the cause of action

accrued during which the person did not

know, and could not reasonably have

known, that he or she had suffered an

injury giving rise to a cause of

action;

(c) whether the person knew, or ought

reasonably to have known, before his or

her death that he or she had suffered

such an injury;

(d) if the person knew before his or her

death that he or she had suffered such

an injury, the extent to which he or she

acted promptly and reasonably;

(e) the extent to which a declaration

specifying a limitation period would, or

would be likely to, result in prejudice

to the defendant;

(f) the conduct of the defendant after the

relevant cause of action accrued,

including the extent to which the

defendant took steps to make available

to the person means of ascertaining

facts in relation to the cause of

action;

(g) the steps, if any, taken by the person

to avail himself, for the purposes of

the cause of action, of medical, legal

or other expert advice, and the nature

of any such advice."

"(4) Subject to sub-section (5), where, at

the time of his or her death, a person had a

cause of action, the court, on application by his

or her personal representative, may -

(a) if the court thinks it just and

reasonable to do so;

(b) whether or not the limitation period

applicable under section 16 has expired

since the death of the person; and

(c) whether or not an action on such a cause

of action has been commenced,

extend that limitation period for such further

period, not exceeding 6 years from the date of

death of the deceased person, as the court thinks

fit.

(5) In exercising the powers conferred on it

by sub-section (4), the court shall have regard

to all the circumstances of the case including

(without derogating from the generality of the

foregoing) the following:

(a) the reasons for, and length of, the

delay on the part of the personal

representative in instituting

proceedings;

(b) whether, after the death of the deceased

person, a significant period of time

elapsed before a relative of the

deceased person or the personal

representative knew or ought reasonably

to have known that the act, neglect or

default which resulted in the death was

capable of giving rise to a cause of

action;

(c) the extent to which, when the personal

representative became aware that the

act, neglect or default which caused the

death was capable of giving rise to a

cause of action, the personal

representative acted promptly and

reasonably;

(d) the extent to which an extension of the

limitation period would, or would be

likely to, result in prejudice to the

defendant;

(e) the conduct of the defendant after the

relevant cause of action accrued to the

personal representative, including the

extent to which the defendant took steps

to make available to the personal

representative means of ascertaining

facts in relation to the cause of

action;

(f) the steps, if any, taken by the personal

representative to obtain, for the

purposes of the cause of action,

medical, legal or other expert advice

and the nature of any such advice."

22. It is curious that the relevant paragraphs of the amended defences filed in the Supreme Court on behalf of the respondents to the present appeal assert, in general terms, that the action in that Court is barred. Thus, none of the paragraphs draws a distinction between the action in so far as it is brought by the appellant on her own behalf and for her own benefit as the widow of the deceased and the action in so far as it is brought by her on behalf of, and for the benefit of, the children of the deceased. Similarly, the first order sought in the notice of motion which was filed in the Supreme Court on behalf of the appellant draws no such distinction. Further, the notice of motion seems to have been drawn on the basis that an extension of the limitation period was required in order that the action might proceed against any of the seven defendants. It may be noted, in passing, that the children are described in par.22 of the statement of claim, not as the children of the deceased, but as the children of the appellant.

22. Notwithstanding the width of the language used in the relevant paragraphs of the defences and in the notice of motion, the parties are agreed that the matter was conducted before the Supreme Court on the basis that the action was not statute barred in so far as it is brought by the appellant on behalf of, and for the benefit of, the children of the deceased. The parties are also in agreement that the finding made by the learned primary judge that "the plaintiff's action against the fifth, sixth and seventh defendants .... is out of time and is only maintainable if this court grants an extension of time within which to commence her action" is similarly to be read as limited to the action in so far as it is brought by the appellant on her own behalf and for her own benefit as the widow of the deceased.

23. After setting out the text of Mr Coombes' affidavit sworn 1 June 1989 and referring to the cause of action pleaded against each of the fifth, sixth and seventh defendants, the primary judge turned to the relevant principles. After noting that the considerations expressly referred to in s.39 were not the only considerations to be taken into account in exercising the discretion vested in the Court by that section, his Honour said:

"The relevant delay in instituting the

proceedings is, in my opinion, the delay between

the expiration of the limitation period and the

institution of the proceedings, in this case the

period between 12 March 1987 and 10 November

1987."

In this regard, his Honour expressed himself as being in agreement with the view of Murray J. in Walla v. State Transport Authority [1985] VicRp 32; (1985) VR 327 at p 329 and as not agreeing with the tentative view to the contrary expressed by the Full Court of the Supreme Court of Victoria in Bell v. S.PC Ltd [1989] VicRp 15; (1989) VR 170 at p 176. His Honour added:

"It seems to me that any delay between the cause

of action arising and the expiration of the

limitation period is irrelevant to the exercise

of the discretion to extend time."

We may interpolate that we have not found it necessary to consider whether his Honour's view is correct.

25. In considering whether it was just and reasonable to extend the limitation period, his Honour treated as a relevant consideration the circumstance that, if the appellant was unable to pursue her claims against the present respondents, she had a cause of action against her solicitors for negligence. Reference was made to Birkett v. James (1978) AC 297, Firman v. Ellis (1978) QB 886 and Daroczy v. B and J Engineering Pty Ltd (In liq.) (1986) 67 ACTR 1. His Honour then referred to various factors required to be taken into account by s.39 of the Limitation Act though he did so, mistakenly it appears, by reference to the factors set out in sub-s.(3) of s.39 instead of to the factors referred to in sub-s.(5) of that section. His Honour's reasons for judgment conclude with the following passage:

"In the exercise of the broad discretion it is

relevant, in my view, to take account of the

fact that the plaintiff has cast her net very

wide in instituting proceedings against the

seven defendants. Indeed, it may be said that

every conceivable defendant has been joined in

her claims for negligence variously pleaded. If

it was apparent on the pleadings that she had a

clear case of negligence against the fifth or

sixth and seventh defendants, that would seem to

me to be another circumstance to be taken into

account and, likewise, the contrary position is

a factor.

I was informed by counsel for the fifth

defendant and the sixth and seventh defendants

respectively that the subject building was

passed fit for use and occupation in 1980. Of

course it can only be a matter of general

impression, but as such it seems to me that the

plaintiff's case against the fifth defendant on

the one hand and the sixth and seventh

defendants on the other is not a strong and

clear case. On the other hand, her case against

some of the other defendants appears stronger

because their negligence, if any, is more

proximate to the death and the cause thereof.

In my judgment the appellant has not proved that

it is just and reasonable to extend the period

within which to institute proceedings against

the fifth, sixth and seventh defendants and the

application is dismissed."

26. Before us, the appellant contended that the limitation period applicable to the action in so far as it is brought on the appellant's behalf and for her benefit had not expired prior to the date on which the action in the Supreme Court was commenced, namely 10 November 1987, and that the primary judge was in error in so holding. For the respondents it was submitted that the Court should not entertain that contention but should confine itself to a consideration of the question whether, on the assumption that the action was to that extent statute barred, the exercise by the primary judge of the discretionary power conferred by s.39 of the Limitation Ordinance had miscarried. The submission recognised that, if, in the result, this Court were to allow the appeal and grant an appropriate extension of time under s.39, the appellant's contention would become academic while, if this Court were to dismiss the appeal, the contention would remain open to the appellant at the trial of the action. The Court decided to hear argument upon the appellant's contention, reserving for further consideration what course it should follow. On balance, we have concluded that it is appropriate, as the contention raises questions of law only, that we express our opinion thereon.

27. The appellant sought to support the contention on either of two bases. The first basis concerned the meaning and effect of the reference in s.16(a) of the Limitation Ordinance to the period of 6 years immediately following "the relevant wrongful act, neglect or default". It was submitted that that provision is to be read as referring, where damage is the gist of the cause of action upon which the deceased could have sued if his death had not ensued, to the period of 6 years immediately following the date of the accrual of that cause of action, that is to say, 6 years immediately following the date upon which the damage was suffered. Thus, according to the submission, the period of 6 years there referred to did not, in the circumstances of this case, commence to run until 12 March 1984 with the consequence that the action was commenced within the limitation period.

27. The language of s.16(a) of the Limitation Ordinance mirrors the language of s.7 of the Compensation (Fatal Injuries) Act and the references in both legislative provisions to the wrongful act, neglect or default causing or resulting in the death of the deceased person must receive the same meaning. The authorities clearly establish that the members of a deceased person's family cannot recover damages upon the new cause of action conferred by legislative provisions corresponding to s.7 of the Compensation (Fatal Injuries) Act unless two conditions are fulfilled. The first of these is that the death must have been caused by a wrongful act, neglect or default. The second is that the wrongful act, neglect or default is such that it would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect of the injury. To satisfy these conditions it is necessary to identify the act, neglect or default which caused the death and then, by examining the character or quality of that act, neglect or default, to determine whether it was wrongful and, if so, whether at the date of his death, the deceased would, if death had not ensued, have had a subsisting cause of action against the person in respect of that wrongful act, neglect or default: see Harding v. Lithgow Corporation [1937] HCA 46; (1937) 57 CLR 186.

29. Where an essential element of a cause of action is damage as, for example, where the cause of action is in negligence, it may well be that the date upon which the deceased suffered damage will be a date later than that on which the wrongful act, neglect or default which caused his death occurred with the consequence that it was not until the later date that the cause of action which the second condition postulates arose. However, the language of s.16(a) of the Limitation Ordinance is, in our opinion, unambiguous. It clearly selects the date of the wrongful act, neglect or default, and not the date upon which the damage is suffered by the deceased, as the commencing date of the limitation period which it prescribes. That conclusion is reinforced, if reinforcement be necessary, when one has regard to the fact that there are provisions in the Limitation Ordinance which expressly designate, as the commencing date of the limitation periods for which they respectively provide, the date on which a cause of action first accrues. The different language in s.16(a) is eloquent of the legislature's intention not to adopt, as the commencing point of the limitation period for the purpose of that provision, the date of the first accrual of the cause of action which the deceased would have had if death had not ensued.

30. The first basis on which the appellant relied to support the contention is, therefore, rejected.

31. The second basis upon which the appellant contended that the action in so far as it is brought on her own behalf and for her own benefit is not statute barred is that, where a member of a deceased person's family as defined is under a disability within the meaning of s.8(3) of the Limitation Ordinance, s.30 of that Ordinance (which suspends the running of the limitation period in the circumstances there mentioned) read with s.8(1) of the Compensation (Fatal Injuries) Act (which provides that not more than one action under that Act may be brought against a person in respect of a death) operates to suspend the running of the limitation period not only in relation to the person under the disability but in relation to all members of the deceased person's family. Counsel for the appellant submitted that support for such a contention is to be found in the decision of Enderby J. in Bendt v. Green (Supreme Court of New South Wales - 7 April 1983 - unreported) and the decision of Master Greenwood, a Master of the Supreme Court of New South Wales, in Palmer v. Riverstone Meat Co. Pty Ltd (1988) Aust. Torts Reports 80-223. Counsel also referred to Crabb v. Hansen (Supreme Court of Queensland (McPherson J.) - 10 April 1986 - unreported). If that submission be accepted, it would be possible in the present case, assuming that the deceased's youngest child suffered pecuniary loss in consequence of her father's death and that she survives so long, for the running of the limitation period to be suspended so far as the appellant's claim is concerned until a date in November in the year 2000 when that child will attain the age of 18 years. Such a result would seem to be surprising, if not remarkable.

32. Counsel for the respondents disputed that the legislative provisions had that effect and submitted that, in so far as the cases cited support the proposition for which the appellant contended, those cases were wrongly decided and should not be followed.

33. In Bendt v. Green (supra), an action under the Compensation to Relatives Act, 1897 (N.S.W.) was brought by a daughter of the deceased on behalf of her mother, the widow of the deceased, and her two sisters. The deceased died on 14 February 1973. The action was commenced on 4 March 1981. The plaintiff and her two sisters were infants at the time of the deceased's death. The mother was not, at any relevant time, under a disability. Unless suspended by the operation of the Limitation Act, 1969 (N.S.W.) by reason of the infancy of the three daughters, the period within which the action could be brought expired 6 years after the deceased's death, that is to say on 13 February 1979. It was argued that the mother's right to bring an action was barred and that, consequently her entitlement to benefit from an action brought on her behalf was also barred. It was also argued that the barring of the mother's claim resulted in a barring of the action brought by the daughter on her own behalf and on behalf of her two sisters. Enderby J. identified the first question which arose for decision as being "whether the inclusion of the widow as a beneficiary to the action brought by the plaintiff, when the widow is statute barred and prevented from bringing an action in her own right, is fatal to the action of the plaintiff on behalf of herself and her sisters". The second question for decision his Honour identified as being "whether, if the inclusion of the claim on behalf of the widow is not fatal to the claim brought by the plaintiff on behalf of herself and her sisters, that claim on behalf of the widow has to be excised". In his Honour's opinion, both questions were to be answered in the negative.

34. In Palmer v. Riverstone Meat Co. Pty Ltd (supra), the deceased died on 8 October 1970. An action under the Compensation to Relatives Act, 1897 (N.S.W.) was commenced on 25 September 1986. The deceased's wife and four of their children were named as plaintiffs. The four children were all under the age of 18 years at the time of the deceased's death. It was held by Master Greenwood that, at the time the action was commenced, the only competent plaintiffs were the two younger children suing by their next friend (each of those children being at that date still under a disability) but that that action could be brought not only on their own behalf but also on behalf of the two older children who had ceased to be under a disability more than 6 years before the action was commenced in September 1986. It was further held that, although under the provisions of the Compensation to Relatives Act, 1897 (N.S.W.) and the Limitation Act, 1969 (N.S.W.) the two younger children could also have sued on behalf of the deceased's wife, the wife's claim was barred by the operation of other statutory provisions to which it is unnecessary to refer for present purposes.

35. In Crabb v. Hansen (supra), the deceased was killed in a motor vehicle accident. An action was brought by the deceased's widow on behalf of herself and an infant son of her marriage to the deceased. That action was brought well within the limitation period of 3 years after the date of the deceased's death applicable to the action. McPherson J. allowed an amendment of the proceedings so as to include, as a person on whose behalf the action was brought, the infant daughter of the deceased by a former marriage. It was argued that s.29(1) of the Limitations of Actions Act 1974 (Qld), which extended the limitation period referable to a person under disability, was inapplicable to the instant case because of an express provision which excluded the operation of the provision "in a case where the right of action first accrued to a person (not under a disability) through whom the person under a disability claims". McPherson J. rejected the argument, saying:

"Leanne's claim, therefore, is the result of a

statutory right of action accruing to her on the

death of her father and distinct from other

similar claims or rights of action accruing in

favour of her stepmother the plaintiff and her

half-brother. The case is therefore not one

where, within the meaning of s.29(3)(a), her

right of action 'accrued to' her stepmother, or

anyone else, 'through whom' she claims".

There is nothing in this case which supports the appellant's contention.

36. The issue is essentially one of the proper construction of the provisions of s.30 of the Limitation Ordinance, a provision which, it is to be observed, is not confined in its operation to cases arising under the Compensation (Fatal Injuries) Act. However, in considering its operation in relation to such cases, it is, we think, proper to have regard, at least by way of background, to what that Act provides.

37. Although the legislative provisions of which the Compensation (Fatal Injuries) Act is an example refer to a class of persons, namely those members, as defined, of the deceased's family who suffer pecuniary loss as the result of that person's death, it is well established that the rights which the legislation confers are conferred not upon the class as such but upon individuals within that class: Avery v. London and North Eastern Railway Co. (1938) AC 606 per Lord Atkin at p 613, per Lord Macmillan at p 619; Jeffrey v. Kent County Council (1958) 3 All ER 158; Patterson v. Richards [1963] VicRp 29; (1963) VR 179 per Dean J. at pp 181-2. The legislation, however, permits only one action to be brought and requires, except in certain limited circumstances, that that action be brought by and in the name of the personal representative of the deceased person. The right which the legislation confers upon a particular individual who is a member of the class will be lost if, in the action brought under the legislation whether by the personal representative of the deceased or a member of the prescribed class, that person is not named as one of the persons on whose behalf and for whose benefit the action is brought. Similarly, a member of the class who has suffered damage may elect not to claim under the legislation or may lose his right to participate by electing to pursue another remedy that is open: Kinneil Channel and Coking Coal Co. Ltd v. Sneddon (1931) AC 575; Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62.

38. Differing views have been expressed whether each member of the family who suffered pecuniary loss in consequence of the deceased's death has a separate cause of action. An affirmative answer to that question was given by Townley and Brown JJ. in Haigh v. State Government Insurance Office (Qld) (1962) QdR 534 at pp 542, 543. The contrary view was expressed by Menhennitt J. in Pobezin v. Insurance Commissioner of the State Motor Car Insurance Office [1969] VicRp 87; (1969) VR 682 at pp 691-2. The former concerned a statutory provision under which amounts paid by way of worker's compensation were charged upon the damages recovered in respect of the death of a deceased worker. The latter concerned a statutory provision prescribing a monetary limit upon the amount of damages that might be awarded against the defendant, the amount being prescribed in respect of "any claim .... made by or in respect of any passenger".

39. Section 30 of the Limitation Ordinance operates where a person has a cause of action, the limitation period fixed by the Ordinance for that cause of action has commenced to run and the person is under a disability. We are of opinion that, for the purposes of s.30, each of the members of a deceased's family is to be regarded as a person who has a cause of action within the meaning of those words in the provision. We are also of opinion that the section is to be read as affecting only the limitation period as it affects the person under disability, its effect being to suspend the running of the limitation period in so far as it affects the right of that person to bring, or to participate in, an action brought under s.7 or s.13 of the Compensation (Fatal Injuries) Act and to fix the date of expiration of the limitation period so far as it affects that person by reference to the date upon which the disability ceases or the person under the disability dies. In other words, s.30 is to be applied separately to any of the members of the deceased's family who are under a disability: it has no effect in relation to such a member who is not under a disability. That that view gives effect to the intention of the legislature is, we think, supported by the provisions of s.52 of the Limitation Ordinance which provides:

"Where, were it not for this Ordinance, 2 or

more persons would have a cause of action jointly

and, by this Ordinance, an action on the cause of

action is not maintainable by one or more of

them, an action on the cause of action is

nonetheless maintainable by the other or others

of them and judgment may be given accordingly."

We are not aware whether a provision similar to s.52 was under consideration in Bendt v. Green (supra) and Palmer v. Riverstone Meat Co. Pty Ltd (supra). In any event, we are unable to agree with those decisions in so far as they are inconsistent with our conclusions.

40. The second basis put forward as supporting the appellant's contention is, therefore, also rejected.

41. It remains to consider whether the exercise by the primary judge of the discretion vested in him by s.39 of the Limitation Ordinance miscarried. A significant matter which supports an affirmative answer being given to that question is that the primary judge, as has already been mentioned, referred to sub-s.(3) of s.39 as prescribing the matters to which regard was to be had in exercising the discretion whereas the relevant sub-section was sub-s.(5) of that section. As appears from the text as set out earlier in these reasons, the two sub-sections deal with different situations. Sub-section (3) deals with the situation where, at the date of his death, the deceased, by reason of the expiry before that date of the relevant limitation period, could not have maintained an action in respect of the wrongful act, neglect or default that caused his death. On the other hand, sub-s.(5) is concerned with the situation where an extension of time is sought by the personal representative of the deceased person -- the only person entitled to make such application -- of the limitation period prescribed in respect of the new right created by s.7 of the Compensation (Fatal Injuries) Act.

42. In the course of his judgment, the primary judge did refer to the matters set out in pars (a) and (d) of s.39(5), though he did so without express reference to those paragraphs. The matters so taken into account were the reasons for, and the length of, the delay on the part of the appellant, as the personal representative of the deceased, in instituting the proceedings and the extent to which an extension of the limitation period would, or would be likely to, result in prejudice to the respondents. There is, however, no reference in the judgment to the matters set out in pars (b), (c), (e) and (f) of that sub-section and, as those matters were clearly relevant to the exercise of the discretion, the only conclusion open is that his Honour failed to take them into account.

43. Counsel for the respondents sought to show that, had the primary judge adverted to the correct sub-section of s.39 of the Limitation Ordinance, it would have made no difference to the result and the application for extension of time would have been refused. We are unable to agree: what conclusion his Honour would have reached had he applied the correct sub-section must remain a matter of speculation.

44. But the matter does not rest upon the circumstance that his Honour referred to the wrong sub-section. His Honour assumed -- and gave significant weight to the assumption -- that the appellant had a good cause of action against her solicitors for the full amount of any damage which she might have suffered in respect of the delay in instituting the action under the Compensation (Fatal Injuries) Act. In doing so, his Honour expressed himself as following the approach of Kelly J. in Daroczy v. B and J Engineering Pty Ltd (In liq.) (supra), a case in which an extension of time to commence proceedings for damages for personal injuries was sought under s.36 of the Limitation Ordinance. In that case Kelly J., after reviewing the authorities, said at p 18:

"The possibility of an action against the

plaintiff's solicitors in respect of the delay

has to be considered. On the whole, I think the

proper view to take is that the alleged primary

wrong-doers (the suppliers) should be looked to

rather than the alleged secondary wrong-doers

(the solicitors). In taking this view, I

follow, with great respect, the general view

taken in Birkett v. James (1987) AC 297. At

the same time I accept that there may be

occasions when a proper balance between the

blame which ought to be attributed to a

plaintiff's solicitor and prejudice to a

defendant would mean that an applicant under

s.36 of the Ordinance ought to be required to

pursue his remedy against his solicitor rather

than against the primary wrong-doer."

45. In our opinion the approach adopted by Kelly J. in the passage cited was correct but we are not satisfied that that approach was, in fact, followed in the present case. The prejudice to the respondents did not extend beyond the general prejudice which would result from their being deprived of a defence under the Limitation Ordinance to which they would otherwise be entitled. In such circumstances, we are of opinion that the primary judge erred in refusing an extension of time on the basis that the appellant should be required to pursue a claim against her solicitors rather than against the respondents.

46. A further important factor is that his Honour gave no weight at all to the fact that the action in so far as it is brought on behalf of, and for the benefit of, the children of the deceased will proceed against the respondents and will raise, in relevant respects, the same issues as would arise if the action were allowed to proceed on behalf of, and for the benefit of, the appellant. The same issues will also arise under the claims for contribution made against the respondents by other defendants in the action.

47. Taking all these factors into account, we are of opinion that the exercise of the discretion miscarried. Further, we see no sufficient reason why the matter should be remitted to the Supreme Court so that the discretion may be properly exercised. All the material is before us and we think it appropriate that we should now exercise the discretion. We are firmly of opinion that, having regard to all the circumstances of the case including the matters set out in sub-s.39(5) of the Limitation Ordinance, it is just and reasonable that an appropriate extension of time be granted to the appellant so that the action instituted on 10 November 1987 may proceed on her behalf and for her benefit as well as on behalf of, and for the benefit of, the children of the deceased.

48. Accordingly, the appeal is allowed and the orders made by the Supreme Court on 27 June 1989 varied by substituting for the order that the application be dismissed an order that the time within which Neva Noja, as the personal representative of Michael Noja deceased, might commence an action on a cause of action arising under the Compensation (Fatal Injuries) Act 1968 (A.C.T.) on her own behalf and for her own benefit against Civil and Civic Pty Limited, Gilbert Frank Williams and the Commonwealth of Australia in respect of the death of Michael Noja be extended up to and including 10 November 1987. As the appellant was seeking an indulgence from the Supreme Court, we are of opinion that the order for costs made by that Court should stand. The respondents Civil and Civic Pty Limited and the Commonwealth of Australia must pay the appellant's costs of the appeal, the costs being borne by those respondents as between themselves in equal shares.