Sheehan v Ainsworth Game Technology Ltd [2011] NSWSC 797

Supreme Court New South Wales

Medium Neutral Citation: Sheehan v Ainsworth Game Technology Ltd [2011] NSWSC 797 Hearing dates: 1 June 2011 Decision date: 28 July 2011 Jurisdiction: Common Law Before: Schmidt J Decision: The defendant's motion be dismissed with an order for costs in favour of Ms Sheehan. Catchwords: PROCEDURE - notice of motion - orders seeking dismissal of claim - whether the claim an abuse of process - limitation of actions - s 50C of the Limitation Act 1969 - operation of Limitation Act 1969 - whether limitation period expired before proceedings were commenced - whether all reasonable steps taken - s 50D of the Limitation Act 1969 - claim not established - motion dismissed - costs Legislation Cited: Civil Liability Act 2002 Limitation Act 1969 Uniform Civil Procedure Rules 2005 Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Dib Group Pty Limited t/as Hill and Co v Cole [2009] NSWCA 210 Category: Procedural and other rulings Parties: Maria Sheehan (Plaintiff) Ainsworth Game Technology Limited ACN 068516665 (Defendant) Representation: Counsel: Mr SW Hickey (Plaintiff) Mr RA Cavanagh SC (Defendant) Solicitors: Walker Legal (Plaintiff) Wotton and Kearney Lawyers (Defendant) File Number(s): 2010/79548

Judgment 1By notice of motion filed in March 2011, the defendant seeks orders dismissing the plaintiff's claim under Rule 13.4 of the Uniform Civil Procedure Rule s 2005, on the basis that the claim is an abuse of process and not maintainable pursuant to s 50C of the Limitation Act 1969 ('the Act'). 2The proceedings were commenced by a statement of claim filed on 30 March 2010. The plaintiff, Ms Sheehan, damaged her right thumb, while working at the defendant's premises on 29 June 2006, installing components into a poker machine. It is not in issue that Ms Sheehan was then performing work on the defendant's production line, but the claim is otherwise defended. 3Ms Sheehan's services were provided to the defendant by her employer, a labour hire company, Bluestone Recruitment Pty Limited ('Bluestone'). Ms Sheehan claims that as the result of the injury to her thumb, she is suffering from severe complex regional pain syndrome, depression, anxiety and a panic disorder, with ongoing disabilities in her thumb, hands and arms. She has not worked since the accident and claims to be permanently unfit for work and to have been in receipt of gratuitous care for four hours per day, seven days a week, since the accident. 4The proceedings were brought more than three years after the accident. In issue between the parties is whether they were brought outside the limitation period fixed by s 50C(1)(a) of the Act, which provides: " 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff." 5The date on which a cause of action is discoverable, is to be determined in accordance with s 50D of the Act, which provides: "50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."