Axford v Gray

[2013] VSC 664

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 05458 of 2012

SUZANNE JAYNE AXFORD	Plaintiff
v
ALAN ERNEST GRAY	Firstnamed Defendant
and
JENNIFER MARGARET GRAY	Secondnamed Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2013
DATE OF JUDGMENT:	15 November 2013
CASE MAY BE CITED AS:	Axford v Gray & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 664

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LIMITATION OF ACTIONS  – negligence – personal injury – Limitation of Actions Act 1958 (Vic) – whether limitation period should be extended under ss 27K and 27L – plaintiff seriously injured - defendant on notice of injury – prejudice resulting from delay minor – limitation period extended to 25 September 2012.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Monti SC	Slater & Gordon Ltd
For the Defendant	Mr C. O’Sullivan	Lander & Rogers

HIS HONOUR:

1. On 1 March 2008, Trevor and Suzanne Axford attended a party held by their friends Alan and Jennifer Gray at 51 Napier Street, Diggers Rest.

1. The Grays had recently sold their house and were to vacate it by the end of the month.  As part of the festivities Alan Gray organised a fireworks exhibition.  According to the Axfords he extinguished the exterior lights so as to accentuate the excitement generated by this pyrotechnic display.

1. The plaintiff, Suzanne Axford, alleges that Alan Gray did not illuminate the extinguished lights after the display. As she walked towards the driveway in the dark she fell down from the upper unprotected edge of a retaining wall and onto the bitumen driveway area. This was a fall of about a metre .  In substance, the plaintiff alleges that this area was unfenced and unlit and that the defendants (Alan and Jennifer Gray) were negligent in permitting this state of affairs:

1. Suzanne Axford shattered her elbow joint.  A complex comminuted oblique fracture through the proximal right ulna with separation of the coronoid and olecranon processes was observed upon a plain x-ray taken that night.  The pain was sufficient to cause  Trevor Axford to abandon driving his wife to the Northern Hospital and to call an ambulance to complete the trip .  The radial head of the elbow was dislocated laterally and may also have been subtly fractured.  On 2 March 2008, under general anaesthetic and open reduction, the fracture was internally wired.  The bones were osteoporotic.  Five days later, under general anaesthetic, a closed reduction of the right elbow dislocation occurred.  On 17 March 2008, and then on 23 May 2008, Suzanne Axford  underwent further operations to realign and stabilise the fracture.  During the latter operation a bone graft was taken from her right hip and inserted into the elbow together with two titanium implants.

1. Mrs Axford’s recovery has been incomplete.  It is unnecessary for current purposes to set this out in any detail.  It is sufficient to observe that she has received and continues to receive intensive conservative treatment.  She is right handed and has set out in her affidavit[1] the impact upon her of her ongoing pain and restrictions.  She is a trained chef and for 20 years successfully ran a catering business.  She states that she has been unable to return to work after this incident.  I accept this.[2]

   [1]Affidavit of Suzanne Jayne Axford dated 10 July 2013.

   [2]The plaintiff set out the nature of her injuries, treatment, recovery and current impairment in her affidavit.  The defendant did not seek to cross-examine the plaintiff on any of the matters contained therein.

1. In addition to her slow and incomplete recovery the plaintiff became depressed.  She is separated, but on good terms with her husband.  She became tearful, isolated and ‘fearful of leaving the house’.  Her G.P. prescribed Pristiq, an anti-depressant, in 2009.  The plaintiff remains on this medication.  Her depression has improved significantly in the last year.

1. Mrs Axford did not issue proceedings against the defendants until September 2012 – that is approximately 4 years 6 months after her fall. The defendants allege the claim is statute-barred ‘by reason of the provisions of s 27D of the Limitation of Actions Act 1958’.[3] Relevantly this provision provides that a plaintiff shall not bring an action for personal injuries after a period of three years has expired from the date on which the cause of action is discoverable by the plaintiff. I am satisfied that Mrs Axford knew or ought to have known by 2 March 2008 that she had suffered personal injury, that that injury had been caused by the fault of the defendants and that the injury was sufficiently serious to justify the bringing of an action.[4] It follows that the limitation period  in this case expired in March 2011 .

   [3]I shall refer to this act as ‘the Act’.

   [4]Limitation of Actions Act 1958 (Vic) s27F.

Legal principles

1. Section 27K of the Act empowers the Court to order the extension of the period of limitation applicable to the cause of action provided it decides it is just and reasonable to do so.[5]

   [5]See above n 4, s 27K(1) and (2).

1. Section 27L sets out a non-exhaustive list of circumstances that where relevant  must be considered when exercising the powers created by s 27K.  Section 27L(2) clarifies sub-section (1).  I reproduce subsections (1) and (2):

Matters to be considered in determining applications for extension of limitation period

(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. The principles which apply to this application are similar to those which applied to applications brought under s 23A of the Act.[6]  Those principles can be summarised as follows:

   [6]GGG v YYY [2011] VSC 429 at [189].

·     The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[7]

[7]Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547.

·     Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.[8]

[8]Brisbane South Regional Health Authority v Taylor (supra) at 547.

·     The considerations referred to in subsections (1) and (2) above are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that takes account of all of them.[9]

[9]Tsiadis v Patterson (2001) 4 VR 114 at 123.

·     The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.[10]

·     Relevant prejudice to a defendant is that which has actually occurred by reason of the relevant delay, as well as prima facie  or general prejudice to a defendant who would otherwise have the benefit of the limitation period.[11] Whilst that prejudice cannot readily be identified generally where there is delay the quality of justice available to the defendant  deteriorates .

·     The longer the delay in commencing proceedings the more likely will be prejudice from lost witnesses or fading recollections.[12]

[10]Delai (supra) at [22].

[11]Brisbane South Regional Health Authority (supra) at 544.

[12]Brisbane South Regional Health Authority (supra) at 551.

1. In substance, the defendants submit that the length of the delay is unreasonable, the reasons for it are unacceptable and the consequences of it combine to cause  significant prejudice to the defendants in the event that the application is successful .  The plaintiff argues that the  delay is far less than is sometimes seen in these applications, the plaintiff’s explanation for it is not unreasonable, and when scrutinised closely the defendant’s assertions of prejudice are hollow.

Analysis

(A)      The length of the delay

1. By itself there is nothing in the length of delay that is critical to the outcome of this application.  As I have said, the plaintiff issued proceedings four and a half years after the accrual of the cause of action and it is now a little more than one year further on.  The delay is neither astronomical nor miniscule.  In my view the reasons for the delay  and the prejudice occasioned by it are more material to the merits of the  application.

(B)      The reasons for the plaintiff’s delay

1. Mrs Axford described her engagement of Mr Clark, solicitor, as follows:

Sometime in 2012, I was invited by my girlfriend to attend a function of her daughter’s legal practice.  I decided to bring a batch of scones with me.  They took me virtually all day to make.  When I arrived at the function I handed over the scones and commented that because of my arm injury they had taken me all day to make, compared to what I was able to achieve before the injury.  My girlfriend’s daughter then asked me, words to the effect of ‘well, what are we going to do about it?’.  I told her I did not know and she then advised that I should seek legal advice in respect of the injury and suggested that I attend Gary Clark of Clark Toop & Taylor.  I believe it was at that function that the receptionist contacted the offices of Clark Toop & Taylor and made an appointment.[13]

[13]Affidavit of Suzanne Jayne Axford dated 10 July 2013.

1. The plaintiff went on to describe how she attended upon Mr Clark on 4 September 2012.  The writ was issued on 25 September 2012.

1. Mr O’Sullivan, who appeared for the defendant, submitted that this narrative may provide an explanation of how the plaintiff came to seek legal advice, but it does little to explain the four and a half years’ delay in doing so.  Mr Monti SC, who appeared with Mr Dunstan for the plaintiff, accepted there is no direct explanation for the delay in the affidavit but submitted an overview of the plaintiff’s circumstances from March 2008 onwards ought be considered on this aspect.

1. He submitted that the evidence disclosed that the plaintiff was badly injured, in constant pain, unable to work, living in reduced circumstances and understandably depressed.  Her evidence, so the submission went, was to the effect that she became socially isolated, unprepared or unable to drive, fearful of leaving the house, and in constant and occasionally excruciating pain .  She was prescribed anti-depressants in 2009 and remains so prescribed.  Her evidence was to the effect that her depression eased in about 2012.  By this stage she had gained about 20kg in weight.

1. For my part, I consider there is some merit in the defendant’s submissions on this aspect.  The plaintiff knew how she had fallen and the consequences of that fall.  This is not a case where there was some hidden causative element or consequence.  In my view, sufficient of the facts were known by the plaintiff to put her on notice that her injuries were caused by the act or omission of the defendant/s, and yet she did nothing for 4 ½ years.  In her affidavit the plaintiff states that she did not understand the concept of negligence and was not aware of circumstances that might give rise to damages.  She said she thought there was a seven year limitation period and accepted that she had no real knowledge of the relevant legal principles.

1. I find it hard to comprehend the plaintiff’s tardiness in seeking legal advice.  She was obviously seriously injured in circumstances where even to a lay person a rudimentary  appreciation of fault would point clearly enough to the occupiers of the house .  And yet she did nothing.  It is unlikely that she was embarrassed about suing a friend because the defendant Alan Gray told her husband the day after the incident that “he paid the highest level of insurance” and if a claim were put in “it would not affect him”.[14]

   [14]Affidavit of Trevor Axford, sworn 1 August 2013.

1. I consider the likely explanation for her inaction lies in her mental state in the few years after the accident.  In lay terms, the plaintiff “dropped her bundle”.  In constant pain, she became unemployed, isolated, reclusive and obese.  In my view, the reasons for the delay remain unsatisfactorily explained and the defendants are entitled to point to them as a significant circumstance relevant to a just and reasonable disposition of this application.  Notwithstanding this, I consider the sting to the plaintiff of her inertia is softened somewhat by the undisputed evidence of her mental state post-accident.

(C)      Prejudice

1. If this application is successful the defendants will lose the benefit of the limitation.  This is an undoubted prejudice.[15]  Beyond that the defendants assert specific prejudice.  The action is based on allegations of inadequate lighting and fencing.  The defendants allege their capacity to defend themselves has been impaired by the passage of time. 

   [15]Brisbane South Regional Health Authority (supra) at 544 (Dawson J).

1. They have moved from the relevant address.  It is asserted that they may have difficulty accessing that address and that there may be changes to the relevant physical features.  Further, the defendants argue that witnesses’ memories as to the state of the lighting and fencing will have faded over five and a half years and thus inhibit their defence where negligence is denied and where contributory negligence is alleged.  Mr O’Sullivan submitted that had the defendants “known much earlier that these allegations were made they could have made attempts to gather evidence (and) speak to other guests at the party…”.

1. Insofar as the defendants allege a prejudice arising from the fact that they moved  out of the premises shortly after the party, Mr O’Sullivan, sensibly in my view, did not press that with any enthusiasm.  The defendants do not assert that changes have been made to the lighting, retaining wall or fencing and there is no evidence that the defendants’ access to the premises has been or will be impeded in any way. I consider that the defendants have not established by evidence that they may suffer prejudice on this aspect .

1. It is correct that the delay will impact the memories of other guests. It is unlikely that any, now, will be able to recall whether or for how long the lights were extinguished.  I doubt however that this prejudice is as significant as the defendants allege. On 1 August 2013, Trevor Axford swore an affidavit in which he asserted the following:[16]

   [16]Affidavit of Trevor Axford, sworn 1 August 2013.

·     The day after the incident he reported the incident to Alan Gray.  He told him that Suzanne had fallen down a retaining wall whilst walking towards the driveway; it was pitch dark and Suzanne was in hospital;

·     Mr Gray told him the lights were supposed to come on after the fireworks display, but had not been turned on.  Mr Gray told him that if a claim was put in for the injury it wouldn’t affect him (Mr Gray) as he paid the “highest level of insurance”;

·     He spoke to Mr Gray on a number of subsequent occasions and kept Mr Gray informed of Suzanne’s progress.

1. Mr Axford was not required by the defendants for cross-examination .  Two months after Mr Axford’s affidavit was sworn, Mr Gray swore his affidavit, which has been filed in these proceedings.[17] Mr Gray did not dispute the Trevor Axford account.

   [17]Affidavit of Alan Gray, sworn 30 September 2013.

1. If Mr Axford’s undisputed account is correct then Mr Gray has lost the opportunity to assemble a body of evidence that is entirely inimical to his case.  This is hardly a gross prejudice.  Further, if this undisputed account is correct then it is the  plaintiff who is more likely to have lost the recollections of witnesses supportive of her account.

1. It is also apparent from the Trevor Axford affidavit that Mr Gray was told of accident and its circumstances within a day of its happening, and was kept abreast of its physical consequences for at least a couple of years.  He was also aware of the potential for a claim against him. This is not a case where out of the blue a writ has been served alleging some long forgotten tortious event.

1. Leaving aside the prima facie prejudice that I have referred to earlier, I am of the view that if there is any further prejudice to the defendants at all, its extent is modest .

Naturally if I were to refuse this application the plaintiff will have lost the chance of litigating what appears to be a relatively straightforward action in negligence that alleges a quite serious physical injury.  This also is a prejudice, albeit one to the plaintiff, that is part of the matrix of factors that I must endeavour to synthesise.[18]

[18]Although prejudice to the plaintiff is not one of the non-exhaustive list of factors referred to in s 27L(1) it is one of the circumstances of the case and an appropriate matter to consider in these sorts of applications.  See also, 27L(2) of the Act; Tsiadis v Patterson [2001] VSCA 138 at [33] (Buchanan JA).

Conclusion

1. The overriding question is whether it would be just and reasonable to extend the period within which the plaintiff may bring proceedings.  I must not attempt to measure the competing weights of what are incommensurables.  I must endeavour to synthesise the competing considerations and arrive at a conclusion that takes them all into account. The plaintiff has satisfied me that it would be just and reasonable to accede to this application.  I am troubled by the explanation for her inertia but on balance I accept that it was at a time when the plaintiff was significantly depressed.  As I have said, whilst this remains a factor that weighs in the defendants’ favour its impact is, in my view, softened by the evidence of the plaintiff’s post-accident mental state.

1. For the reasons I have stated, the plaintiff has satisfied me that the prejudice to the defendants is quite modest. No doubt there is some general prejudice to the defendants that arises from the passage of time – that is the nature of delay , and it is hard to identify what cannot specifically be observed . I am satisfied however that the admissions indisputably made by the first defendant to Trevor Axford on 2 March 2008 confine the spectre of general prejudice to a modest level. If those admissions were  reliable (and there is no reason to conclude otherwise) witnesses favourable to his cause on liability would have been thin on the ground from 2 March 2008 onwards.  The defendants knew almost immediately of the accident and its circumstances and was kept up to date on its sequalae.

1. In all the circumstances I am satisfied that it is just and reasonable to extend the limitation period until 25 September 2012 .

1. I will hear the parties on costs.