Arisoy v Yoogalu Pty Ltd

[2012] VSC 631

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2010 5370

SERGUL ARISOY	Plaintiff
V
YOOGALU PTY LTD t/a HARVEY NORMAN	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2012
DATE OF JUDGMENT:	19 December 2012
CASE MAY BE CITED AS:	Arisoy v Yoogalu Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 631

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LIMITATION OF ACTIONS - Extension of period within which to sue – Limitation of Actions Act 1958 (Vic) s27K, s27L − Lack of evidence put forward by plaintiff in relation to the circumstances of and reasons for delay in bringing proceedings – Application for extension refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Clark Toop & Taylor
For the Defendant	Mr Scott Smith	Fitzpatrick Legal

HIS HONOUR:

Introduction

1. While shopping at a Harvey Norman store at Broadmeadows on 13 September 2007 Ms Arisoy (the plaintiff) claims she tripped on some carpet, fell over and injured her left shoulder and left elbow.  A little over six months later, on 2 April 2008, she gave instructions to her present solicitors, Clark Toop & Taylor, concerning the accident.  Under the Victorian Wrongs Act1958 she had until 13 September 2010 to bring any common law action against Harvey Norman (that is to say, against the occupier of the store) to recover damages for personal injury.  This she failed to do.

1. Several weeks after the limitation period expired, her solicitors filed a generally endorsed writ against the present defendant, Yoogalu Pty Ltd, outlining the plaintiff’s claim for damages as a consequence of the alleged negligence or breach of duty of the occupier of the store.  After failing to serve the writ within the required 12 month period, the solicitors obtained an extension of time within which to do so.  They served a writ, together with a statement of claim, on 27 October 2011.  Because there had been no prior warning of a pending claim, the defendant learned of the claim for the first time upon the service of the writ. 

1. Ultimately, the defendant pleaded that the claim was statute barred. In response, the plaintiff applied for an extension of the limitation period under s 27K of the Limitation of Actions Act1958 (Vic) (the Act). It is that application with which I am principally concerned.

1. A separate issue concerned the true identity of the occupier of the Broadmeadows Harvey Norman store.  But the parties now agree to the substitution of Broadstore Pty Ltd in place of the current named defendant, and I will make orders accordingly.

1. I then turn to the question of the extension of the limitation period.

Principles

1. Section 27K of the Act entitles a person in the position of Ms Arisoy to apply to the court for an extension of the applicable limitation period. The court hearing the application may order an extension of the applicable limitation period if it decides ‘it is just and reasonable to do so’.

1. Section 27L specifies what a court shall consider in determining such an application:

(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—

(a)the length of and reasons for the delay on the part of the plaintiff;

(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;

(e)the time within which the cause of action was discoverable;

(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.

(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—

(a)whether the passage of time has prejudiced a fair trial of the claim; and

(b)       the nature and extent of the plaintiff's loss; and

(c)       the nature of the defendant's conduct.

1. Rather than measuring competing factors against one another, the court is to ‘synthesise a number of competing considerations to arrive at a conclusion that takes account of them all, bearing in mind that the respondent [here, the plaintiff] bears the onus of persuading the court that it is just and reasonable to extend the limitation period’.[1]

   [1]          Tsiadis v Patterson (2001) 4 VR 114, 123 (Buchanan JA) (Tsiadis).

1. Not all of the considerations in s 27L(1) are relevant to the circumstances of this case. Rival arguments from each side have focused on the length of and reasons for delay; whether the plaintiff acted promptly and reasonably after the accident, including the extent to which her own solicitors’ conduct should be attributed to her; and any prejudice to the defendant should the extension be granted.

1. In Brisbane South Regional Health Authority v Taylor,[2] McHugh J (with whom Dawson J agreed) made some general observations regarding limitation periods, and the jurisdiction of the courts to extend them.  Those observations are, with respect, helpful to guide the approach to the task.  His Honour reiterates the exceptional nature of granting an extension of time:

A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.”  But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.  The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[3]

[2](1996) 186 CLR 541 (Brisbane South Regional Health).

[3]Ibid 553 (citations omitted).

Plaintiff’s loss and defendant’s conduct

1. I begin by focusing on the nature and extent of the plaintiff’s loss, and the nature of the defendant’s alleged conduct. Little attention to these features, matters specifically mentioned in s 27K(2), was given in either the affidavit material or in argument. Perhaps that is because neither is thought likely to have a particularly influential bearing within the synthesis of considerations bearing upon the application.

1. The available details of the injury and the conduct of the defendant leading to it are only a little more extensive than the short summary given at the beginning of these reasons for judgment.  In addition to injuries to the left shoulder and elbow region, the statement of claim refers also to psychological injury including anxiety and depression.  No present claim is made for any loss of earning capacity. 

1. In her affidavit in support of this application, Ms Arisoy says she has ongoing medical treatment for her injury, including this year having had an incision into the joint and a wash out of her left elbow. It is difficult to tell from these bare facts the extent of the plaintiff’s loss even though the general nature of it is apparent. At least it is evident that the plaintiff has suffered an injury justifying an assessment of more than 5% whole person impairment, the threshold level of impairment necessary to be permitted, under s 28LE of the Wrongs Act1958, to bring a claim for non-economic loss.

1. As for the defendant’s conduct, Ms Arisoy briefly describes the circumstances of her injury.  She says that she was walking in the store with her husband, her son and a store employee (Ms Alice Lopez) who she knew from a previous shopping occasion.  As she walked around a box situated on the floor, she caught her heel on some carpet and tripped over.  She says she was told by Ms Lopez to go to a doctor to get her injuries checked out.  Two other male employees are alleged to have been in the vicinity, although she does not state whether they observed her fall or the aftermath.

1. In short, the circumstances involve a tripping incident in a department store causing injuries of unknown severity.

Length of and reasons for delay

1. After consulting her solicitors in April 2008, Ms Arisoy says that she did not see them again until 21 March 2011.  Between those two dates, Ms Arisoy simply says:

I have subsequently travelled overseas on a number of occasions for periods between 2 and 3 months to Turkey where I was born and have relatives.  I understand that Clark Toop & Taylor were unable to contact me for an extended period of time and on 1 October, 2010 filed a Writ to protect my claim.

1. Nowhere does Ms Arisoy say that she believed that a proceeding was to be issued on her behalf, or that she had instructed her solicitor to do so.   She makes no mention of being advised that she had a limited period of time within which to issue proceedings, or that she had to first obtain a medical certificate as to a threshold level of impairment if she did want to bring proceedings.  It would be surprising if she had not been given such advice.

1. None of the three solicitors from Clark Toop & Taylor who have sworn affidavits in support of this application suggest that the plaintiff gave the firm instructions to issue proceedings, or to do anything at all.  Further, none of them detail the advice given to the plaintiff in April 2008 as to what her options were and what she needed to do if a claim was to be instituted.  In those circumstances I am wholly unable to determine the reasonableness or otherwise of the plaintiff’s conduct in not contacting her solicitors again after April 2008 and before the limitation period expired. 

1. The first relevant affidavit sworn by a solicitor at the firm concerning this matter was sworn in October 2011 in support of the application to extend time for service of the writ.  In it, the deponent swears that he had the care and conduct of the matter subject to the supervision of Ms Patsy Toop.  He swore that the firm ‘lost contact’ with the plaintiff after April 2008, continued to attempt to contact her and eventually consulted with her on 21 March 2011.  As already mentioned, Ms Arisoy swears to the same. 

1. The second solicitor who deposed to the relevant events was Patricia (Patsy) Toop who swore in July 2012 to the same sequence of events.  By then, the plaintiff’s summons initiating this application had been issued.

1. A third solicitor swore an affidavit on 9 October 2012, deposing to the fact that he had reviewed the file on 4 October 2012.  As regards the issue of the identity of the occupier of the relevant Harvey Norman store, he produced a business card that the plaintiff had been given on the day of the accident which disclosed that Broadstore Pty Ltd was the relevant corporate entity.  But he did not say anything to contradict what the two other solicitors, and Ms Arisoy herself, had said about the sequence of events relating to the plaintiff’s instructions to the firm.

1. So it was something of a surprise that on the day of the hearing of this application, the plaintiff filed a further affidavit by the third solicitor, sworn three days earlier, deposing to a different sequence of events.  In that affidavit the deponent swore as follows:

… during a review of our file in this action on 4th October, 2012, I noted that from a record on the file, the plaintiff attended and instructed in relation to this matter on 11th March, 2010.  Moreover on the 30th April, 2010, a legal representative attended with the plaintiff a view of [the Harvey Norman store] and photographs were taken of the area where the plaintiff tripped and fell on 13th September, 2007.  

1. Four colour photographs were produced.

1. No further affidavits by the plaintiff or the two previous solicitors were filed explaining their failure to refer to the two attendances upon the solicitors in the period between April 2008 and the expiry of the limitation period.  Nor was there any explanation why the solicitors said they had ‘lost contact’ with the plaintiff after April 2008, such that they could not get instructions before the expiry of the limitation period, if, in fact, they had seen her within six months of that expiry. Neither the solicitors nor the plaintiff were called to give oral evidence before me, nor were they asked to attend for cross examination. 

1. Apart from it being said that the plaintiff attended the solicitors on the two occasions in March and April 2010, nothing was said about what advice, if any, was given to the plaintiff, or any instructions she gave to the solicitors with respect to issuing proceedings.  The ‘record on the file’ referred to by the solicitor was not produced either in full or in any redacted form.

1. I bear in mind that it lies upon the plaintiff to persuade me that it is just and reasonable to extend the limitation period.  So, it lies upon her to satisfy me, if she can, that there is an explanation for the delay in issuing proceedings before the expiry of the limitation period that would make it just and reasonable for the period to be extended. 

1. In this context, what was said by Ipp AJA in Itex Graphix Pty Ltd v Elliott[4] has particular cogency:

The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts.

…

The reason for this requirement is not hard to understand.  A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave.  A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence.  To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament.[5]

[4][2002] NSWCA 104.

[5] Ibid [89]-[90] (citations omitted).

1. On the material that has been presented, I am unable to determine what in fact was the reason for delay.  Too much remains a mystery.  Had the plaintiff ever given instructions that she wanted a proceeding issued?  Was the firm awaiting further instructions from her?  Was the plaintiff aware or ignorant of the limitation period?   If there were no further instructions given between April 2008 and March 2011, whose fault was that?  Can I accept the most recent version of events - that the plaintiff saw the solicitors six months before the limitation period expired - and thereby assume that three solicitors and the plaintiff herself had overlooked that fact when preparing for an extension of time application?  And if I do accept the most recent version, does that assist the plaintiff given that there is no evidence of what she was told or what she instructed her solicitors to do in 2010?

1. The matters I have been discussing are also germane to considerations other than the reasons for delay. They are also highly pertinent to the factors specified in s 27L(1)(f) and (g). Whether the plaintiff acted ‘promptly and reasonably’ once she knew she had a potential cause of action depends on what she was advised, and what instructions she gave, in April 2008 and thereafter. That consideration is not satisfied in the plaintiff’s favour merely by establishing that she consulted the solicitors in April 2008, or in March/April 2010, giving unspecified instructions and receiving unspecified advice. Similarly, I can draw no confident conclusions in her favour about the steps she took to obtain legal and medical advice or the nature of that advice.

Prejudice to the defendant

1. Ms Arisoy’s argument relied heavily upon the absence of any demonstrable prejudice to the defendant by reason of her delay.  She even suggested that the practical desirability for her injuries to stabilise before the claim was heard might likely have meant that the claim would not have been litigated much earlier anyway, even if the writ had been issued within the limitation period.  Both Ms Arisoy and her solicitors depose to a belief that all relevant witnesses, both as to the accident and medical witnesses, are available to give evidence, and that the proceedings are capable of being fairly tried. 

1. Apparently there is no written record of the accident kept by the defendant.  No incident report was made.  Ms Arisoy claims that she reported the accident orally to Ms Lopez.  Until recently, the defendant had been unable to locate Ms Lopez.  But on the day of the hearing of the application the defendant filed an affidavit stating that a solicitor for the defendant had recently been able to contact its former employee.  The defendant has not disclosed what Ms Lopez said in the recent discussion and it has expressly said that it does not assert any specific prejudice by reason of the delay.

1. In submissions, the defendant relied upon the exceptional nature of an order to extend the limitation period, the onus that the plaintiff bears, and what is sometimes called ‘general’ or presumed prejudice to a party by delay.  It urged me to take heed of further observations made by McHugh J in Brisbane South Regional Health, namely that it is often difficult to point to palpable prejudice because ‘what has been forgotten can rarely be shown’, and that the longer the delay in commencing a proceeding, the more likely it is that the case will be decided on less evidence than was available to the parties when the cause of action arose.[6]

   [6]          Brisbane South Regional Health, 551.

1. I accept that, generally speaking, an applicant does not demonstrate that it is just and reasonable to extend the limitation period merely by pointing to an absence of tangible prejudice on part of defendant, and an apparent ability still to conduct a fair trial notwithstanding the delay.  Ms Arisoy’s application did not extend much beyond those two arguments.

1. Be that as it may, I must have regard to the fact that the plaintiff faces the prospect of losing a cause of action against the defendant in the context of little, if any, evidence that the defendant will suffer any tangible prejudice in being able to defending that claim arising from the delay in instituting the proceeding.

1. Relevant to any assessment of the plaintiff’s prospect of loss is the extent to which I may have regard to the chance that, were I to refuse her application, she might recover damages from her solicitors for negligently failing to institute proceedings within time.  It is not at all clear that she will have such an action because of the murky state of the evidence concerning her own instructions and role in the failure to issue within time. 

1. I take the law to be that the court may take into account the ability of an applicant to recover damages from the solicitor whose default has made the application necessary.[7]  The weight to be given to the availability of the cause of action will depend on the circumstances of each case.  But the liability of the solicitor is not to be equated with that of the original wrongdoer.  The different principles for assessing loss between the two actions may mean, in this case, that Ms Arisoy will still suffer some prejudice in having to pursue an action against her solicitor rather than one against the occupier of the Harvey Norman store. 

   [7]          Tsiadis 121 [27]. 

1. In the circumstances of this case, the weight to be given to the value of a potential claim she may have against her present solicitors is, like the question of responsibility for the delay, difficult to determine.  That is so for the very reason that the responsibility for the delay is difficult to attribute. 

1. So, whether it is because she may be able to recover a substantial measure of her damages in a claim against her solicitors, or because she herself may be largely at fault for the delay (and therefore does not have a valuable claim against those solicitors), in either event I do not regard the issue of a possible alternative claim as a factor in the plaintiff’s favour on this application.

Conclusion

1. In Tsiadis, Buchanan JA stated his agreement with what Brooking J said in Bell v SPC Ltd[8] concerning the statutory predecessor of s27L:

The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them.[9]

[8][1988] VR 123

[9]Ibid 125-6.

1. Considering the conduct and position of both parties, including the effect of the application on each of them, I am not persuaded that it is just and reasonable to extend the limitation period.  The primary obstacle to exercising my discretion in the plaintiff’s favour is the opacity of the picture concerning her role in the delay.  Whether it was attributable to her conduct, or her solicitors, or a blend of both, is not at all clear.  For all I know, the plaintiff may have been quite ambivalent about bringing any proceeding for some part or all of the limitation period, and her desire to bring a proceeding has only crystallised since it elapsed.  I simply do not know.

1. Given that an extension of time involves an indulgence, and amounts to an exception to what Parliament has provided to be the general rule, the lack of any clear explanation for the delay, to be weighed in combination with all other factors, is in my view fatal. 

1. Alleged wrongdoers are entitled to the finality to their legal obligations which statutory limitation periods afford, unless an applicant can demonstrate circumstances that make it just and reasonable that they should not be constrained by the limitation.  The applicant has failed to demonstrate such circumstances.  Her application must therefore be refused.