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:

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.

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.

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:

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.

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…

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.

Continue reading Axford v Gray

Details

AGLC: Axford v Gray [2013] VSC 664
Case: [2013] VSC 664
Decision Date: 15 November 2013

CaseChat Overview and Summary

In the case of Axford v Gray, the plaintiff sought compensation for personal injuries resulting from an incident involving the defendant. The plaintiff, Axford, alleged that the defendant, Gray, was negligent, and this resulted in serious injuries to Axford. The dispute was brought before the Supreme Court of Victoria. Axford argued that the limitation period for filing a claim should be extended due to specific provisions under the Limitation of Actions Act 1958 (Vic). The primary legal issues for the court to determine were whether the limitation period should be extended under sections 27K and 27L of the Act, given that Gray was aware of the injury and the extent of the prejudice resulting from any delay was minimal.

The court considered the provisions of the Limitation of Actions Act 1958 (Vic), focusing on whether the circumstances of the case warranted an extension of the limitation period. It examined the application of sections 27K and 27L, which provide for the extension of limitation periods in cases where the defendant has been on notice of the injury and the plaintiff’s delay in filing the claim is not significantly prejudicial. The court found that since Gray had been aware of the injury, and the delay in filing the claim did not substantially prejudice Gray, the limitation period could be extended. Consequently, the court ruled that the limitation period should be extended to 25 September 2012, allowing Axford to pursue his claim within the new timeframe.

The Supreme Court of Victoria concluded that the application for an extension of the limitation period was justified under the relevant sections of the Limitation of Actions Act 1958 (Vic). The court's decision was based on the clear awareness by Gray of the injury and the minor nature of the prejudice caused by the delay in filing the claim. The court’s ruling permitted Axford to proceed with his claim for damages for personal injuries against Gray within the extended period.

Orders