Antonini v SRA (No 2)

[2006] NSWDC 133

CITATION:	ANTONINI v SRA (No 2) [2006] NSWDC 133
HEARING DATE(S):	28.11.06
EX TEMPORE JUDGMENT DATE:	11/28/2006
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The defendant's motion is dismissed; 2. The plaintiff is to pay the costs of the proceedings on 25 October 2006; 3. The defendant is to pay the plaintiff's costs of today's proceedings; 4. The affidavit materials and the extracts provided are returned.
CATCHWORDS:	DATE OF DISCOVERABILITY
LEGISLATION CITED:	Limitation Act 1969 (NSW) Motor Accidents Compensation Act 1999
PARTIES:	Helen Antonini State Rail Authority
FILE NUMBER(S):	Newcastle 376/06
COUNSEL:	Plaintiff-Respondent - C A W Hart Defendant-Applicant - K W Andrews
SOLICITORS:	Bale Boshev Gillis Delaney Lawyers

JUDGMENT

HER HONOUR

1 Mrs Antonini has claimed against the State Rail Authority in respect of an incident that occurred on 30 July 2003. Her statement of claim was filed on 11 August 2006. The defendant, by application, seeks an order dismissing the proceedings on the basis that they were commenced outside the time limit imposed by section 50C of the Limitation Act 1969.

2 I initially heard argument on 25 October 2006 as to which of the Limitation Act or the Motor Accidents Compensation Act 1999 was to be applied in determining the appropriate limitation period. On 15 November, I delivered reasons for accepting the propositions of the State Rail Authority that the Limitation Act applied.

3 The parties returned today for further argument concerning the date of discoverability in order to determine when the three year limit imposed by section 50C of the Act commenced.

4 There was today before me further affidavit evidence of the plaintiff, Mrs Antonini, dated 17 November 2006; and of her solicitor, Mr Schipp, of 17 November 2006, and 27 November 2006. I was also provided, for the purposes of assistance, with copies of section 6 of the Law of Negligence Review which deals with limitation of actions, and an extract from the Hansard record of debate of the second reading speech on 19 November 2002 concerning the Civil Liability Amendment (Personal Responsibility) Bill.

5 The further evidence provided indicated that Mrs Antonini was taken to hospital on 31 July 2003 and that she remained at the John Hunter Hospital and then the Royal Newcastle Hospital until 22 August 2003. Her evidence was that she first consulted a solicitor in October 2003, although the material before the Court suggests that her first contact may have been in September 2003.

6 Her evidence was that she was told that the solicitor consulted could not advise whether the claim was sustainable until medical reports had been received and paid for. She stated that she was advised in May 2004 that she had a good claim.

7 In cross-examination she agreed that she was aware on the date of the accident, that she had been injured. She also stated that she was aware on that date that, as far as she was concerned, the State Rail Authority was at fault.

8 It was apparent that she had had access to a solicitor, Mr Kelly, prior to this injury. Mr Kelly had been representing her in connection with a claim concerning her late husband.

9 Mr Schipp’s affidavits attached correspondence and claim forms forwarded to the State Rail Authority and records of treatment and medical reports obtained. The material tendered through Mr Schipp’s affidavits indicated that there had been extensive inquiry already undertaken by both parties in respect of medical examination and the supply of particulars.

10 Attached to Mr Schipp’s second affidavit was what was said to be the file of Moroney Rutter Mantach, the solicitors initially consulted by Mrs Antonini. Amongst those papers is a file note of 17 April 2004 in which it was recorded by Mr Manion of that firm that he had explained to Mrs Antonini the provisions of the Civil Liability Act 2002 and the range within which her case might fall. He noted in paragraph 8 that he had tried to explain to Mrs Antonini that going to court would be expensive and that she would have to pay for expenses involved, and that at that stage he proposed to negotiate an ex gratia settlement with the State Rail Authority.

11 I am required to determine, for the purposes of this application, when Mrs Antonini knew or ought to have known of each of the following facts:

12 (a) the fact that the injury had occurred;

(b) the fact that the injury was caused by the fault of the defendant;and

(c) the fact that the injury was sufficiently serious to justify the bringing of a cause of action.

13 In determining whether Mrs Antonini ought to have known of any of those facts, I take into account the facts that would have been ascertained by her had she taken all reasonable steps to ascertain those facts.

14 As to the first of those facts, there is no doubt that Mrs Antonini was aware on the date of the accident of her injury.

15 The second of those facts causes some difficulty. She conceded, as I have already noted, that she believed at the outset that her injury was caused by the fault of the State Rail Authority. There is correspondence among the papers from the State Rail Authority which raises the suggestion that Mrs Antonini in fact tripped when she was leaving the train in question. I am not prepared to accept that the belief of an elderly passenger as to fault establishes that she knew as a fact that the State Rail Authority was at fault by 11 August 2003.

16 As to the third of those facts, the date upon which Mrs Antonini knew or ought to have known that the injury was sufficiently serious to justify the bringing of an action, I have already referred to the memorandum on the Moroney Rutter Mantach file. It is apparent that as at May 2004, the solicitor advising Mrs Antonini himself was not persuaded that there was a sufficiently serious injury to justify the bringing of an action.

17 In the circumstances, it is not reasonable, in my view, to suggest that Mrs Antonini ought to have known by 11 August 2003 of each of the facts referred to in paragraphs (b) and (c).

18 Added to this, of course, is the evidence that at that date she was in hospital, wheelchair-bound, and recovering from her injuries.

19 It is not reasonable, in my view, to suggest that in those circumstances she should have contacted Mr Kelly or any other lawyer.

20 Having regard to the views that I have expressed, it has not been necessary to decide whether, at that stage, Mrs Antonini was sufficiently incapacitated to have been under a disability such that the limitation period was suspended.

21 I reject the argument put for the State Rail Authority that it was necessary to plead the discoverability date for the reason that the statement of claim was filed three years after the date of the accident itself.

22 The defendant’s motion is dismissed.

23 As far as costs are concerned, the costs of the initial argument concerning the applicability of the Limitation Act or the Motor Accidents Compensation Act were reserved when reasons were delivered on 15 November 2006. The effect of that decision was that the propositions advanced by the defendant were accepted as against those advanced by the plaintiff. In the circumstances, the plaintiff is to pay the costs of the proceedings on 25 October 2006.

24 As to the proceedings before the Court today, the defendant having failed in its application, the defendant is to pay the plaintiff’s costs of today’s proceedings.

25 The affidavit materials and the extracts that you provided to me, Mr Hart, are returned.

26 I will note that the matter is listed for status conference on 14 March 2007 and ask the parties if this is not the appropriate time to call the mediators in. Thank you.

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