Dollisson v Australian Rail Track Corporation Limited [2019] NSWSC 870

Dollisson v Australian Rail Track Corporation Limited [2019] NSWSC 870

The Court held that under Victorian law (Spandideas), the cause of action was discoverable in February 2013, with the effect that proceedings commenced in July 2017 were outside the limitation period; but, if the law in Gillett applied, discoverability would be June 2017 and proceedings would be timely. Regardless, the plaintiff established it was just and reasonable to extend the limitation period under s 27L given reliance on incorrect legal advice, the plaintiff's diligence, the seriousness of injury, and absence of actual demonstrated prejudice. The Accident Compensation Act (Vic) s 134AB did not bar the claim because the plaintiff's employment was not connected with Victoria under s...

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Notice of Motion in Personal Injury Proceedings / Interlocutory Application; Orders on Limitation Period and Amendments
Outcome
Extension of limitation period granted; defendant's motion dismissed; costs in part reserved, part awarded.
Legal Topics
['limitation Periods' 'statutory Interpretation' 'extension of Limitation Period' 'serious Injury Threshold' 'workers Compensation' 'choice of Law' 'public Liability Claims']
['personal Injury' 'practice and Procedure' 'limitation of Actions'] ['limitation Periods' 'statutory Interpretation' 'extension of Limitation Period' 'serious Injury Threshold' 'workers Compensation' 'choice of Law' 'public Liability Claims']

Case Brief

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Procedural Posture

Notice of Motion in Personal Injury Proceedings / Interlocutory Application; Orders on Limitation Period and Amendments

Legal Issues

  1. 1 ['Whether the cause of action was discoverable by the plaintiff within s 27D Limitation of Actions Act 1958 (Vic)' 'Whether the limitation period should be extended under s 27L Limitation of Actions Act 1958 (Vic)' "Whether the plaintiff's claim against the first defendant is futile due to s 134AB Accident Compensation Act 1985 (Vic)"]

Ratio Decidendi

The Court held that under Victorian law (Spandideas), the cause of action was discoverable in February 2013, with the effect that proceedings commenced in July 2017 were outside the limitation period; but, if the law in Gillett applied, discoverability would be June 2017 and proceedings would be timely. Regardless, the plaintiff established it was just and reasonable to extend the limitation period under s 27L given reliance on incorrect legal advice, the plaintiff's diligence, the seriousness of injury, and absence of actual demonstrated prejudice. The Accident Compensation Act (Vic) s 134AB did not bar the claim because the plaintiff's employment was not connected with Victoria under s...

Court Disposition

Extension of limitation period granted; defendant's motion dismissed; costs in part reserved, part awarded.

Orders

  • ['Leave granted to first defendant to amend part of its defence.' "Leave granted to first defendant to withdraw an admission in defence to the extent related to 'serious injury' under the Accident Compensation Act 1985 (Vic)." 'Limitation period as to first and second defendants extended up to and including 6 July...