New South Wales Supreme Court CITATION : Wallis bnf v Lyco Industries [2002] NSWSC 1215 FILE NUMBER(S) : SC 20505 of 2000 HEARING DATE(S) : 13 December 2002 JUDGMENT DATE : 18 December 2002 PARTIES : Robert Jock Wallis bnf Ruth Susan Wallis and Lyco Industries Pty Ltd JUDGMENT OF : Cooper AJ LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Deputy Registrar Howe JUDICIAL OFFICER : COUNSEL : Mr J. E. Rowe for Plaintiff (respondent) Mr R. Gambi for Defendant (applicant) SOLICITORS : Long Howland Houston, Lawyers (Plaintiff) McCabe Yerrill, Lawyers (Defendant) CATCHWORDS : Cause of Action not maintainable - S.19 Limitation Act for the benefit of S.4 Compensation to Relatives Act. LEGISLATION CITED : Sections 19, 53, 75 of Limitation Act Compensation to Relatives Act Bendt v Green & Ors unreported decision of CASES CITED : Enderby J, (7 April 1983). Palmer & Ors v Riverstone Meat Co Pty Ltd & anor. 1988 Australian Tort Reports 68, 245. Noja v Civil & Civic Pty Ltd & Ors 93 ALR 224 DECISION : Accordingly, the appeal from the judgement of Assistant Registrar Howe of 16 April 2002 is dismissed and his orders are confirmed.; I order the appellant (defendant) to pay the respondent's (plaintiff's) costs of this appeal. - 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SYDNEY REGISTRY No 20505 of 2000 ROBERT JOCK WALLIS bnf RUTH SUSAN WALLIS V LYCO INDUSTRIES PTY LIMITED COOPER AJ 18 December 2002 Reasons for Judgment 1 Andrew Robert Wallis (the deceased) was a farmer and grazier. Early on the morning of 10 May 1989 he was operating his Lyco Power Tech fully automatic pinning hydraulic wool press when the top plate of the press descended on his head killing him almost instantly. 2 He left a widow, Ruth Susan Wallis, who was then aged 29 and their baby son, Robert Jock Wallis, who was born on 9 October 1988. 3 On 19 September 2000 this action was commenced under the Compensation to Relatives Act for the benefit only of the son, Robert Jock Wallis alleging negligence against the defendant in the design and manufacture of the press.. 4 The plaintiff in the action is Robert Jock Wallis, the son, and his mother, Ruth Susan Wallis, is named only in the capacity of his next friend. The person on whose behalf and for whose benefit the action is brought is stated as "the plaintiff as the son of the deceased". 5 Section 19 of the Limitation Act provides:- "An action on a cause of action arising under the Compensation to Relatives Act 1897, by virtue of a death, is not maintainable if brought after the expiration of a limitation period of; (a) 6 years running from the date of the death, where the cause of action accrued before 1 September 1990. 6 This action was brought well after the expiration of the six year limitation period but by reason of Section 52 of the Limitation Act the running of the limitation period is suspended for the duration of the son's legal disability. 7 On 30 November 2001 the plaintiff filed a Notice of Motion seeking leave to amend his Statement of Claim by adding as a person on whose behalf and for whose benefit the action is brought his mother Ruth Susan Wallis as the wife of the deceased. 8 The application is opposed by the defendant substantially on the ground that all rights of Ruth Susan Wallis to bring action are statute barred by virtue of section 19 (supra) and, therefore, to allow the amendment sought would be futile.. 9 The Notice of Motion came on for hearing before Assistant Registrar Howe who, on 16 April 2002, granted leave to the plaintiff to file and serve an Amended Statement of Claim in the form sought by him. 10 The unsuccessful defendant now appeals to a single Judge. 11 The Registrar based his decision upon two earlier cases. The first was the unreported decision of Enderby J, (7 April 1983) in Bendt –v- Green and Ors. 12 In that case action was commenced after the expiration of the limitation period on behalf of the widow and her infant children. It was submitted on behalf of the defendant that the action was not maintainable by virtue of the provisions of Section 19 of the Limitation Act. 13 His Honour summarised the issues at pages 8 and 9 thus:- "The first question posed by the appeal, is 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 the bringing of an action in her own right, is fatal to the action of the plaintiff on behalf of herself and her sisters. The second question, is 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 my opinion both questions should be answered in the negative." 14 After considering the terms of sections 19, 52 and 63 of the Limitation Act and the nature of an action under the Compensation to Relatives Act as evidence by the terms of sections 3 to 6B of that Act, His Honour concluded that a person who was under a disability and one of the class nominated in section 4 could commence an action outside of the limitation period and nominate a person not under a legal disability who was also a member of that class as one of the persons for whose benefit the action was brought. 15 15 A similar conclusion was arrived at by Master Greenwood in the case of Palmer and Ors –v- Riverstone Meat Co Pty. Ltd., and anor. 1988 Australian Tort Reports 68, 245. 16 The deceased in that case had died in a fire in October 1970. A statement of Claim filed in September 1986 named the deceased's wife and 4 of their children in an action under the Compensation to Relatives Act. The 4 children were all under the age of 18 at the time of the deceased's death. 17 The facts of that case were complicated by the provisions of Section 63(3)(a) of the Workers Compensation Act. 18 The learned Master held that the combined affect of Section 19 and 52 of the Limitation Act was that only the children that were younger than 24 years at the time the Statement of Claim was filed could maintain their rights of action. This meant that only the two younger children could bring an action on their own behalf. Section 19 of the Limitation Act only provided that the action was not "maintainable" after the expiration of the limitation period and therefore barred the action on the cause of action, but not the benefit of the action. The widow was not barred from being represented by the two younger children by the Limitation Act but was barred from being represented by the provisions of the Workers Compensation Act. 19 Master Greenwood drew the distinction between maintaining an action on a cause of action which was barred by section 19, on the one hand, and the right to a benefit arising out of an action on a cause of action, on the other hand. 20 This was the state of law until the judgment of the Full Court of the Federal Court of Australia in Noja –v- Civil and Civic Pty. Limited and Ors. 93 ALR 224 was delivered in 1990. 21 The legislation considered in that case were the Compensation (Fatal Injuries) Act 1968 (ACT) and the Limitation Ordinance 1985 (ACT) which differ only slightly from the legislation under present consideration. 22 However in relation to submissions based upon the cases of Bendt and Palmer the Court said at p. 235:- "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." 23 The essence of the Court's decision appears at pages 237-238:- "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 affect 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 none the less maintainable by the other or others of them and judgment may be given accordingly'. We are not aware whether a provision similar to Section 52 was under consideration in Bendt –v- Green (supra) and Palmer –v- Riverstone Meat Co. Pty. Limited (supra) . In any event, we are unable to agree with those decisions in so far as they are inconsistent with our conclusions." 24 It should be noted here that section 52 of the Limitation Ordinace has its counterpart in section 75 of the NSW Limitation Act. 25 The point at which the reasoning of the Full Court departed from the reasoning in the other cases is that the Full Court held "it is well established that the rights that the legislation confers are not conferred upon the class as such but upon individuals within that class". In Bendt and Palmer it had been held that the right to commence an action based upon the cause of action is different from the right of prescribed individual persons to derive benefit from the action so commenced. 26 It is now necessary for me to seek to resolve the issue arising our of these distinguished judgments – a task upon which I venture with some diffidence and considerable respect to those with whose views I have decided to differ. 27 I start with Section 19 of the Limitation Act which provides:- "An action on a cause of action arising under the Compensation to Relatives Act 1897 by virtue of a death is not maintainable if brought after the expiration of a limitation period of:- (a) 6 years running from the date of the death, where the cause of action accrued before 1 September 1990." 28 One must then ask what is it that is rendered "not maintainable" by this Section? The answer is: an action on a cause of action arising under the Compensation to Relatives Act by virtue of a death. 29 The next question is, what is that cause of action? 30 The answer is to be found in Section 3(1) of the Compensation to Relatives Act which states:- "Whensoever the death of a person is caused by a wrongful act, neglect, or default, and the act, neglect or default, is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amounting in law to a serious indictable offence." 31 Sub Sections 2 and 3 relate to the damages which may be awarded. 32 Section 4 provides:- "Every such action shall be for the benefit of the spouse, brother, sister, half brother, half sister, parent and child of the person whose death has been so caused and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict find and direct. 33 Section 5 provides that "not more than one action shall lie for and in respect of the same subject matter of complaint." 34 To my mind it is quite clear that the cause of action which is referred to in Section 19 of the Limitation Act is one cause of action and one cause of action only namely that which the deceased would have had had he not died. This view is reinforced by the fact that section 5 provides that only one action shall lie in respect of the same subject matter of complaint and that the action shall be for the benefit of certain nominated relatives of the deceased. It is further reinforced by the terms of section 4 which provides that there is to be one lot of damages awarded and that amount of damages is then to be divided amongst the persons for whose benefit the action based upon the one cause of action is brought. 35 Sections 4 and 6B of the Compensation to Relatives Act set out the persons who are entitled to maintain an action based upon that cause of action. First there is the legal personal representative of the deceased who may not in fact be one of the class nominated in section 4. Secondly, where there is no such representative or he/she does not bring action within six months after the death, then the action may be brought by "the person or any one or more of the persons for whose benefit the action might be brought by such an executor or administrator". 36 Each member of that class has two separate and distinct rights. First, he/she may maintain the action. Secondly, he/she may be named as a beneficiary of the action so maintained. The Act allows such a member to maintain the action and/or to be named as a beneficiary in such an action. If such a member does not maintain the action in the sense of being named as a plaintiff, then he/she may still be named as a beneficiary in that action. 37 The nature of the right of an individual member of the nominated class was recognised by the Full Court in Noja at p. 237:- "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 the action is brought." 38 It is now necessary to consider the effect of section 75 of the Limitation Act, upon the ACT counterpart of which the Full Court placed reliance. That section states:- "Where, were it not for this Act, two or more persons would have a cause of action jointly and, by this Act, 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. " 39 It is at this stage that I respectfully beg to differ from the members of the Federal Court in Noja. To my mind this section is not relevant to the circumstances raised in this particular case. 40 Here the action has been maintained by Robert Wallis and it is not statute barred. Ruth Wallis is not seeking to maintain an action either in her own right or jointly with Robert based upon the cause of action. She is merely seeking to be nominated within the current pending action as a beneficiary. This action is maintainable (to quote the word used in section 75). She is merely seeking to be named as a beneficiary in an action which is maintainable by her son. 41 Robert Jock Wallis, as the son of the deceased, was one of those for whose benefit the cause of action accrued on the death of his father. By virtue of section 52 of the Limitation Act the running of the limitation period is suspended for the duration of his disability. In fact his disability does not expire until October 2006. 42 The action brought by him is not barred. The cause of action in his action is that single cause of action which his father would have had had he not died but merely been injured in the accident of 10 May 1989. His her, is not seeking to be joined as an additional plaintiff. She is merely seeking an amendment of the existing Statement of Claim so that she can be named as a person on whose behalf and for whose benefit the action is brought. 43 Accordingly I am satisfied that her inclusion amongst those for whose benefit the action is to be brought or to be continued does not offend the provisions of the Limitation Act and it follows that to allow the amendments sought would not be futile. 44 It is appreciated that the Full Court of the Federal Court has described such a result as "surprising, if not remarkable". However it is the result of the wording of the New South Wales legislation and is probably not the only example of a result which could be described in similar terms. 45 Of course it does not automatically follows that leave should be given to the plaintiff to amend his Statement of Claim. The Court has a discretion in such matters. 46 However, I find myself in complete agreement with the Deputy Registrar's interpretation of the relevant Supreme Court Rules and the principles to be considered when exercising the discretion to grant leave to amend and I respectfully adopt them. I would also mention that Counsel for the defendant made no submission of any hardship or injustice that would be caused to his client by such an amendment. Under these circumstances leave to make the amendments to the Statement of Claim as sought by the plaintiff should be allowed. 47 Accordingly, the appeal from the judgment of Assistant Registrar Howe of 16 April 2002 is dismissed and his orders are confirmed. 48 I order the appellant (defendant) to pay the respondent's (plaintiff's) costs of this appeal. Last Modified: 12/19/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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