Court of Appeal puts its foot down on Limitation Act

30 September 2021

An insight into the interaction between the Fatal Accidents Act 1959 (WA) and the Limitation Act 2005 (WA).

In Issue

  • Whether adult relatives of a deceased can benefit from an action brought under the Fatal Accidents Act by the plaintiff.

The background

On 5 October 2013, the appellant’s mother, Ms Ryan, was struck and killed by a motor vehicle driven by the respondent. On 17 September 2019, the appellant brought an action (Callow v Peterson [2020] WADC 76) against the respondent under s 9 of the Fatal Accidents Act 1959 (WA) (FAA). She was 19 years of age when she commenced the action. The action was brought for the benefit of the appellant and seven others (six of whom were the appellant’s siblings, the other of which was the appellant’s mother’s de facto husband, Mr Callow). Mr Callow and two of those siblings (Adrienne and Lonnelle) were of age. The remaining children were under 15 years of age at the time of Ms Ryan’s death.

The decision at trial

At first instance, the respondent applied for summary judgment on the basis that the cause of action under section 9 of the FAA on behalf of Mr Callow, Adrienne and Lonnelle was statute barred. The learned primary judge agreed and struck out the paragraphs of the Statement of Claim referring to Mr Callow, Adrienne and Lonnelle. In doing so, the trial judge held that the extension of time afforded by section 30 of the Limitation Act 1959 is only for the benefit of those persons who were children under 15 at the time of death of the deceased relation (and not those for whom the limitation period has already expired).

The issues on appeal

There was one ground of appeal, which was that the trial judge erred in his reasons by failing to adequately recognise that members of a relevant class of relatives under the FAA (which only permits one action) are given two rights; being a right to bring the relevant action in their own name on behalf of themselves and on behalf of all the members of the class (if the deceased’s executor/administrator has not commenced an action within 6 months of the death), and a separate right to share in the damages recovered in the action if it is brought by the executor/administrator of another member of the class. The appellant submitted that the trial judge erred in his application of sections 14 and 30 of the Limitation Act 2005 (WA) to the right to commence an action.

The Decision on appeal

There is one, and only one, action under the FAA. The Court of Appeal therefore set aside the orders striking out the paragraphs of the Statement of Claim insofar as they related to Mr Callow, Adrienne and Lonnelle. The appellant (on behalf of her relatives, relevantly including Mr Callow, Adrienne and Lonnelle), were permitted to bring their action against the respondent. The Court of Appeal held that where a plaintiff brings an action on behalf of their relatives under the FAA (and the plaintiff’s limitation period has not yet expired), that action would inure for the benefit of those relatives of the deceased (including those for whom the limitation period had expired).

Implications for you

The FAA is an important piece of legislation for ensuring that the relatives of a deceased person can be compensated for a death that is wrongfully caused. The FAA navigates this issue by allowing individuals to bring an action on behalf of their relatives and to be compensated accordingly. For obvious reasons, minors are particularly vulnerable to the loss of an adult in their lives. The decision at first instance (perhaps unfairly) broadened the scope of this vulnerability (i.e. relatives of that child would be restricted from bringing an action if their cause of action had expired). This decision represents an important clarification of the interaction between the Limitation Act 2005 (WA) and the Fatal Accidents Act 1959 (WA), in Western Australia.

Callow v Peterson [2021] WASCA 167

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation