A Timely Reminder about Time – the Consequences of Missing a Common Law Limitation Date in the WA Workers Compensation and Common Law Scheme


District Court of WA – Kent v Mullally [No 2] [2016] WADC 37, His Honour O’Neal DCJ
Heard 14 -16 December 2015 and 27 January 2016

The headnote of this case states – Advisors’ negligence – Workers’ compensation advisor failed to ensure plaintiff’s common law action was commenced in time – Action statue barred – Loss of chance – Causation – Value of plaintiff’s lost opportunity – Damages.

The Civil Liability Act 2002 s 5B and s 5K, The Limitation Act 2005 (WA), The Occupational Health and Safety Act 1984 s 20 and The Mines Safety and Inspection Act 1994 are considered in the decision.

The plaintiff was working as a scaffolder for Thiess Pty Ltd on a project for Alcoa Australia Ltd (Alcoa) at Pinjarra Refinery. On 13 December 2005 he was injured while “working in the hazardous conditions that then existed on site”.

The defendants owned the business ‘Work Claims Australia’ and as His Honour wrote “…purported to act on behalf of people seeking workers’ compensation”. In January 2006 the plaintiff consulted the defendants about his workers’ compensation claim and entitlements. The first defendant agreed to act for him in relation to his workers’ compensation claim against Thiess Pty Ltd.

The plaintiff received workers’ compensation payments and as his injuries were significant and ongoing he wanted to make a claim for common law damages against both Thiess and Alcoa. His Honour found that “…in mid-2008 the plaintiff was led to believe by the first defendant that the defendants would assist him in advancing his common law claim” however His Honour also observed that the plaintiff “…was never advised of the existence or the effect of the three year limitation period for such claims”.

On 12 December 2008 the common law action against Alcoa became statute barred by operation of the Limitation Act 2005 (WA).

As a result the plaintiff sued the defendants for damages arising from his loss of his opportunity to bring a common law action against Alcoa. His claim against the defendants alleged breaches of a duty to exercise reasonable care, skill and diligence, both in negligence and in contract.

His Honour stated at paragraph 7 of the judgement – “The only issues remaining for me to decide are:

  • whether Alcoa breached its duty of care to the plaintiff;
  • whether there was contributory negligence on the part of the plaintiff;
  • whether the defendants’ negligence caused the plaintiff loss; and
  • the measure of the plaintiff’s loss and damage arising from his injuries and the defendants’ breach of duty, if any.”

Many matters were the subject of admissions or concessions before and during the trial and the defendants did not appear and give evidence and they filed a written undertaking to submit to the result of the trial and any resultant orders.

After hearing evidence and carefully considering the facts and the law His Honour ordered the defendants pay damages to the plaintiff amounting to $484,837 comprising future medical treatment $42,876, loss of earning capacity $366,961 and general damages $75,000 plus costs and interest.

This decision contains an interesting and detailed consideration of the legislation noted above, the facts and circumstances of the injury, the workplace and arrangements and the negligence issues.

If you would like to discuss the decision or if you would like any further information please do not hesitate to contact Ashley Crisp on (08) 9321 3755 and acrisp@kottgunn.com.au.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.