Sola Optical Australia Pty Ltd v Mills [1987] HCA 57

High Court of Australia Wilson, Deane, Dawson, Toohey and Gaudron JJ. Sola Optical Australia Pty Ltd v Mills [1987] HCA 57

ORDER Appeal dismissed with costs.

The Court delivered the following written judgment:—

Dec. 2 Wilson, Deane, Dawson, Toohey and Gaudron JJ.

On 23 June 1981, the respondent Mrs. Mills injured her right arm in the course of her employment by the appellant. Notwithstanding surgery and other treatment, she has continued to suffer pain and to be restricted in her freedom of movement. She claims to have been unable to work.

In October 1981 the respondent instructed her solicitors to prosecute both a claim for workers' compensation and a claim for damages at common law. The claim for compensation was instituted and resulted in a settlement which was the subject of a consent order on 23 January 1984. The order preserved the right of the respondent to pursue a common law claim.

Section 36 of the Limitation of Actions Act 1936 SA. as amended ("the Act") provides that all actions for damages in respect of personal injuries "shall be commenced within three years next after the cause of action accrued but not after". The prescribed period in the case of the respondent therefore expired on 23 June 1984. An identical period was prescribed by s. 82(2) of the Workers Compensation Act 1971 SA. as amended (which Act was recently repealed and replaced by the Workers Rehabilitation and Compensation Act 1986 SA). Unfortunately, the respondent's solicitors through inadvertence failed to commence the proceedings within time. The question then arose whether the period within which the action could be commenced might be extended in accordance with the provisions of s. 48 of the Act. So far as material, that section reads as follows:

(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—