Ashton v Benders Pty Ltd - [2002] TASSC 68

[2002] TASSC 68

CITATION: Ashton v Benders Pty Ltd [2002] TASSC 68

PARTIES: ASHTON, Mark William
v

BENDERS PTY LTD (ACN 009 486 186)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M199/1998
DELIVERED ON:  13 September 2002
DELIVERED AT:  Hobart
HEARING DATES:  30 April 2002
JUDGMENT OF:  Crawford J

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Inordinate delay - Likelihood of prejudice to respondent.

Limitation Act 1974 (Tas), s5(3).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  K B Procter SC
             Respondent:  P L Jackson
Solicitors:
             Applicant:  Murdoch Clarke
             Respondent:  Griffits and Jackson

Judgment Number: [2002] TASSC 68
Number of Paragraphs: 44

Serial No 68/2002
File No M199/1998

MARK WILLIAM ASHTON v BENDERS PTY LTD (ACN 009 486 186)

REASONS FOR JUDGMENT CRAWFORD J

13 September 2002

By an originating application filed on 31 July 1998, an order was sought pursuant to the Limitation Act 1974, s5(3), that the time for the applicant to institute proceedings against the respondent for damages for personal injuries be extended for such period as the Court deems appropriate and necessary. The accident and cause of action with respect to which the damages are claimed, occurred on 9 October 1992. The time limit for bringing an action expired three years later on 9 October 1995. Under subs(3), I have a discretion, if I think that in all the circumstances of the case it is just and reasonable so to do, to extend the period limited for the bringing of the action for such period as I think necessary, but the period must not exceed six years from the date on which the cause of action accrued. A writ was in fact filed on the date on which the originating application was filed, so that the extension of time is sought to that date, which was over five years, nine months after the cause of action arose. It is now approaching ten years after.

Evidence for the applicant came from the following sources. Four affidavits of the applicant were read and he was cross-examined. An affidavit of Joanna Davidson, a legal practitioner employed by Rae & Partners, was read. An affidavit of Alison Burrows-Cheng, a legal practitioner with Murdoch Clarke, was read. An affidavit of Gregory Norris sworn on 5 March 2001 was read. At the time of the accident, he was the mayor of the Esperance Municipality. He died between the date of his affidavit and the date of hearing. Oral evidence was given by Peter Gordon who, at the time of the accident, was the manager of the quarry where it occurred, and Wojciech Grun, who at the time was an Inspector of Mines. For the respondent, an affidavit by Raymond Bender, the respondent's managing director, was read and he was cross-examined. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] TASSC 68
Decision Date: 13 September 2002

CaseChat Overview and Summary

Mark William Ashton sought an extension of time to bring an action against Benders Pty Ltd for damages for personal injuries. The accident and cause of action with respect to which the damages are claimed, occurred on 9 October 1992. The time limit for bringing an action expired three years later on 9 October 1995. Under s5(3) of the Limitation Act 1974, the Court has a discretion, if it thinks that in all the circumstances of the case it is just and reasonable so to do, to extend the period limited for the bringing of the action for such period as it thinks necessary, but the period must not exceed six years from the date on which the cause of action accrued. The applicant's evidence was that on the day in question the protesters could be seen on the top bench. The applicant said that his party travelled some of the way by car and then got out. They had to walk 100 to 200 metres to reach the protesters and they commenced the walk on a vehicular road to the top area. It had been compacted by vehicles and was a sturdy surface on which to walk. They reached an area approximately six metres below a ledge where the protesters were located and Mr Gordon then led the way by leaving the road and proceeding up a track made up of loose stones of various sizes. The applicant described it as a foot track. In an affidavit, the applicant's evidence was that as he neared the top, the track gave way and he slipped and fell. He maintained that the track was slippery and unstable and that he was not warned that it might give way. The applicant's reason for going to the quarry was that the accident took place in the respondent's limestone quarry at Lune River. The applicant was employed by the Esperance Municipality as a regional development officer. On the day of the accident, 9 October 1992, the mayor, Gregory Norris, and the council clerk, Geoffrey Jamieson, asked the applicant to accompany them to the quarry to attempt to facilitate a meeting between the mayor and council clerk and the protesters, with the hope that the protesters could be persuaded to allow work to continue. The applicant was regarded as a neutral party. The Court considered the following evidence: the applicant's evidence that in or about May 1994 he sought advice from a legal practitioner, Dale Docking of Abetz Curtis & Docking, and instructed him to make a claim against both his employer, the Esperance Municipality, and the respondent; that there was no evidence why he did not seek legal advice earlier than that; that no advice was given to him by Mr Docking concerning a three year limitation period; that he said that Mr Docking recommended that he pursue a lump sum payment from the employer and a public liability claim against the respondent; that on 13 May 1994, Mr Docking sent a letter to the respondent advising that he had been instructed to act for Mark William Ashton who had injured his knee in a fall in the quarry in October 1992 and to make a claim for damages in respect of the matter; that on 19 August 1994, Griffits and Jackson sent a letter to the applicant's solicitors, advising that they acted for the respondent's public liability insurer, FAI General Insurance Company Ltd ("FAI"); that they stated that neither the respondent nor FAI had any information concerning the applicant's injury and asked for some detail as to the circumstances in which it was alleged to have occurred, including the date and precisely where; that they also asked for an indication of the basis on which it was asserted that a cause of action in damages arose in respect of the injury against the respondent; that they stated that on receipt of a response, they would carry out whatever further investigations might be necessary and indicate FAI's attitude to the claim; that liability was expressly "not conceded"; that upon the basis of the evidence, or lack of it, I find that there was no further communication made on behalf of the applicant to the respondent, its insurers or legal practitioners, until about August 1998, when presumably the writ and application for an extension of time were served on the respondent; that on the face of the evidence, the respondent, its insurers and legal practitioners, remained in ignorance of the circumstances of the accident and the basis of the applicant's claim at least until almost six years had passed since the cause of action arose; that the applicant had claimed workers compensation from his employer, the Esperance Municipality; that he was off work for some time because of the knee injury; that he had received from his employer, or there was paid on his behalf, $46,497.80 by way of workers compensation or benefits when on 6 December 1994, he executed a deed of release accepting a lump sum of $50,000 from his employer and releasing it from all further claims for workers compensation, damages at common law or otherwise; that it was his evidence that he continued to instruct Mr Docking to pursue a common law claim against the respondent, that he believed Mr Docking was complying with his instructions and that he received no advice to the contrary; that there was no evidence that Mr Docking mentioned the three year time limit at that time; that the applicant's evidence was that in about August 1997, he attended Mr Docking and asked how his claim was going; that Mr Docking advised that he was no longer very confident about the matter and that "I don't think there's anything in this any more", according to the applicant's evidence; that the applicant decided to obtain a second legal opinion as to the likelihood of success with his claim for damages against the respondent; that on 26 August 1997, he attended another legal practitioner, Andrew Rae, of Rae & Partners, for advice and requested Mr Rae to obtain Mr Docking's file for the purpose of giving it; that at no time prior to consulting Mr Rae was the applicant advised of the three year time limit in which to commence an action; that there was no evidence that Mr Rae mentioned it at that time; that Rae & Partners wrote to Mr Docking asking that he provide his file on loan so that they could give advice to the applicant; that they forwarded the applicant's authority to do so; that not having had a response, they wrote again on 18 September 1997, 20 October 1997, 10 February 1998 and 18 March 1998; that in addition, because of Mr Docking's failures to respond, they wrote to the Law Society on 21 November 1997; that eventually, after an investigation by the Society, Rae & Partners received Mr Docking's file on 4 June 1998; that inspection of it revealed that no proceedings had been commenced against the respondent; that on 13 May 1998, the applicant suffered an accidental head injury and was unable to fully instruct his solicitors until 4 July 1998; that on 7 July 1998, Rae & Partners took full instructions

Orders