Ayoub v Trustees of the Roman Catholic Church for the Diocese of Parramatta

[2001] NSWCA 361

CITATION:	AYOUB v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA [2001] NSWCA 361
FILE NUMBER(S):	CA 40868/99
HEARING DATE(S):	27 September 2001
JUDGMENT DATE:	12 October 2001
PARTIES :	Sayed Ayoub - Appellant Trustees of the Roman Catholic Church for the Diocese of Parramatta - Respondent
JUDGMENT OF:	Mason P at 1; Sheller JA at 2; Fitzgerald AJA at 22

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3613/99
LOWER COURT JUDICIAL OFFICER :	Dent DCJ

COUNSEL:	B J Gross QC/T J Boyd - Appellant D T Kennedy SC/S A Woods - Respondent
SOLICITORS:	Cameron Gillingham Boyd - Appellant Makinson d'Apice - Respondent
CATCHWORDS:	Practice and Procedure - Limitation Act 1969 - extension of time in which to commence proceedings in negligence - whether applicant has established an arguable cause of action - student injured while driving teacher's car - whether there is an arguable case in negligence against the school.
LEGISLATION CITED:	Roman Catholic Church Communities' Land Act 1942 Limitation Act 1969
CASES CITED:	Commonwealth v Introvigne (1982) 150 CLR 258 Salido v Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Rep 81-399 at 63,596 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497
DECISION:	1. Appeal allowed; 2. Set aside the order of Judge Dent of 21 October 1999 refusing the application; 3. Order that the limitation period for the appellant's cause of action founded on negligence for damages for personal injury against the respondent be extended for 28 days from the date of this judgment; 4. The respondent to pay the appellant's costs of the application and of this appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40868/99
DC 3613/99

MASON P

SHELLER JA

FITZGERALD AJA

Friday, 12 October 2001

AYOUB v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA


The appellant suffered an injury in a motor vehicle accident in 1995. At the time of the accident, the appellant was a student at a school operated by the respondent, and was driving a manual vehicle owned by one of his teachers. The teacher had asked the appellant to drive the vehicle for her. The appellant was not advised of the possibility of bringing proceedings against the respondent until April 1999. In May 1999 the appellant filed a motion for an extension of time pursuant to either s60C or s60G of the Limitation Act 1969. The trial Judge refused the application, on the ground that the action was doomed to failure, since the respondent could not be held to be liable for the appellant’s injuries.

Held : per Sheller JA, Mason P and Fitzgerald AJA agreeing:
1. The practice of the District Court in not permitting a potential plaintiff to file a statement of claim during an application for leave to extend time was unsatisfactory for a number of reasons.
2. Although the appellant’s proposed pleadings were lacking in particularity, the respondent did not object to this, and the trial Judge was content to decide the matter without reference to the proposed pleadings.
3. There was an arguable case for the respondents to meet, based on the duty owed by a school to take reasonable care for the safety of pupils.
4. Given that the trial Judge expressed the view that, having regard to the other factors to be considered under s60E(1), a fair trial could be had, the appropriate course was for the Court to order that the appellant be granted an extension of time in which to bring proceedings against the respondent.

Per Fitzgerald AJA:
5. Where a question of the arguability of novel legal propositions arises in the context of Limitation Act proceedings, a broad approach is appropriate. Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, considered.

ORDERS

1. Appeal allowed;
2. Set aside the order of Judge Dent of 21 October 1999 refusing the application;
3. Order that the limitation period for the appellant’s cause of action founded on negligence for damages for personal injury against the respondent be extended for 28 days from the date of this judgment;
4. The respondent to pay the appellant’s costs of the application and of this appeal.



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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40868/99
DC 3613/99

MASON P

SHELLER JA

FITZGERALD AJA

Friday, 12 October 2001

AYOUB v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA
Judgment

: I agree with Sheller JA.

The appellant, Sayed Ayoub, who was born on 2 August 1977, was injured while driving a motor vehicle on 12 October 1995. At that date the appellant was a student in Year 12 at St Patrick’s School, Dundas, a school alleged to have been administered and managed by the respondent Trustees of the Roman Catholic Church for the Diocese of Parramatta, which was claimed to be a body corporate pursuant to s4 of the Roman Catholic Church Communities’ Land Act 1942 and as such liable to be sued. The status of the respondent was not in issue.

3 According to the appellant the circumstances which led to his driving the car on this occasion were as follows. On 12 October 1995 he was in an English class during the last period before lunch. His teacher was a Ms Leonie Finn. During the course of a conversation with her she told him she was thinking of selling her car, a 1988 Toyoto Corona manual. She asked him what sort of money she could get for it. The appellant told her that if she cleaned and detailed the vehicle she would get more money. Ms Finn then asked the appellant to take the car and get it detailed. He said that he could. She then asked him “Could you buy new hub caps from K-mart, I will give you $150 to do it.” He said to her that he would detail the vehicle at his house. She said “The car is not insured”. He said “I do not want to do it if that is the case”. She said “Why”. He said “I am worried that something might happen”. He went back outside for lunch at 12.30 and had a conversation with a friend, Patrick Kahwaji. He then returned to the classroom and had a further conversation with Ms Finn. He said that he could do it and she asked to see his licence. He said he showed her his licence which was a provisional licence endorsed only to permit the driving of an automatic transmission vehicle. Ms Finn said “Be careful as my job is on the line. If you have an accident, get out of the car and make a run for it. I will blame somebody else for the accident, I will say the car was stolen”. Ms Finn then handed the appellant the keys to her car. Mr Kahwaji drove it out from the teachers’ car park. Another person, Anthony Khater, came with them and they drove in the direction of Anthony’s house. The appellant was driving the car. On Quarry Road, Ermington the appellant lost control of the car when he panicked and put his foot on the accelerator. The car went out of control, entered a grass verge and flipped over. In the result the appellant had a comminuted fracture of the tibia of the right leg requiring the insertion of a medullary nail to stabilise it.

4 At the urging of his parents the appellant saw a solicitor at Lakemba in 1996 although he does not remember at what time during the year. Later he saw a Mr El Azzi of Ermington, a solicitor, and discussed with him the circumstances of the accident. He was advised that he did not have a strong case as no other cars were involved and he was not pushed off the road by another vehicle. He said he was not provided with any advice about the expiration of limitation periods. He was not given any advice as to the possibility of a claim against the school until he saw Ms Maree Gittany of his present solicitors, Cameron Gillingham Boyd, and Mr Trevor Boyd, barrister, in a conference on 9 April 1999. He met Ms Gittany when he saw her talking to a friend of his at a gymnasium. As a result of that conversation he became a client.

5 Thereafter the appellant, through his solicitors, moved by motion of 18 May 1999, later amended, for orders:

“1. Pursuant to s60C of the Limitation Act 1969 (that he be granted) an extension of time in which to sue (the respondent).
2. In the alternative, pursuant to provisions of s60G of the Limitation Act 1969 (that he be granted) an extension of time in which to sue (the respondent).”

6 Section 60C of the Limitation Act 1969 (the Act) provided:

“(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines.”

7 Section 60E(1) of the Act provided:

“(1) In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:
(a) the length of and reasons for the delay,
(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available.
(c) the time at which the injury became known to the plaintiff,
(d) the time at which the nature and extent of the injury became known to the plaintiff,
(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission,
(f) any conduct of the defendant which induced the plaintiff to delay bringing the action,
(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received,
(h) the extent of the plaintiff’s injury or loss.”

8 The application was heard and refused by his Honour Judge Dent QC on 21 October 1999. In his reasons for judgment his Honour said that the appellant’s submissions were that the school had by virtue of its existence an obligation towards pupils such as the appellant. Reference was made to Commonwealth v Introvigne (1982) 150 CLR 258 and to Horne v State of Queensland (1995), a decision of Ambrose J in the Queensland Supreme Court delivered on 3 March 1995 and reported in Butterworths unreported judgments.

9 Judge Dent said that the primary issue that had to be decided was whether the appellant demonstrated a viable or arguable case against the other party. His Honour said:

“What was agreed between the plaintiff, applicant and Ms Finn in this case was to indulge in an activity which on the evidence was outside the hours that the plaintiff was required to be at school that day for the mutual benefit of Ms Finn and the plaintiff, and this activity was not an activity in which the school had any interest whatsoever. It was not to be performed on school premises and it was not an activity away from the premises in which the school was under any obligation to supervise.”

10 His Honour said that he could not see how it could be argued that anything that occurred to the appellant as a consequence of driving Ms Finn’s car could be attributed to a breach of the general obligation of the corporate school towards a pupil. It was a purely private arrangement between Ms Finn and the appellant. About the doctrine of vicarious liability, Judge Dent said that the bargain Ms Finn struck with the appellant was no part of the performance of any duty arising from the contract of employment that she owed to the respondent.

11 His Honour referred to the various matters to be considered pursuant to s60E(1). He said that the length and reason for the delay arose from the fact that the appellant was twice advised that he had no claim to bring and did not pursue it until he met Ms Gittany. The only prejudice would have been the unavailability of Ms Finn to support the claim against the respondent and it had not been demonstrated she would not be available. The injury was known to the appellant on the day of the accident, the nature and extent of it would have been known to him shortly afterwards. The appellant would have been aware of the connection between the injury and the respondent’s act or omission shortly after the accident. I interpose that there was obviously no conduct of the respondent which induced the appellant to delay bringing the action. The steps taken by the appellant to obtain medical, legal or other expert advice and the nature of such advice has already been adverted to. Judge Dent described the injuries as not the most severe but an injury which would attract the jurisdiction of the District Court. His Honour concluded by saying:

“I am, by virtue of [Salido v Nominal Defendant (1993) 32 NSWLR 524 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541], required to consider in determining whether or not it is just and reasonable to permit an extension of the time to ascertain from the evidence whether or not the applicant has discharged the onus of showing not that it is just and reasonable but that a fair trial of the issues between him and the school can be had.
Given my earlier observations, I am so satisfied that such a trial could be had but unhappily, I refuse the relief sought in the motion because applying the Salido principle in my view, the action sought to be brought against the corporate school is doomed of [sic] a futility and accordingly, I deny the relief sought by the applicant’s motion.”

The application was defeated by Judge Dent’s conclusion that the action was doomed to failure. In the language of Gleeson CJ in Salido at 532-3 “it would be plainly futile to grant it”.

12 On 13 November 2000 this Court granted the appellant leave to appeal from Judge Dent’s decision.

13 Section 60C of the Act is concerned with a person claiming to have a cause of action to which the section applies. One such is a cause of action founded on negligence. If the Court decides that it is just and reasonable to do so it may order that the limitation period for the cause of action be extended for a period not exceeding five years. We were told that in accordance with the then practice of the District Court in cases where the statutory limitation period had expired the Court refused to permit a potential plaintiff to file a statement of claim until an order had been made extending the time. An application for an extension of time was initiated, as in this case, by a notice of motion. This is an unsatisfactory procedure for at least three reasons. In the first place it assumes that a defendant will plead that the action is statute barred. Secondly, it denies to the court hearing the application for extension an exact statement of the applicant’s case. Thirdly, it denies to the injured party the opportunity to preserve its position by filing a document within the five year period thereby avoiding any prejudice flowing from a delay in determining whether an extension should be granted.

14 In the present case the appellant claimed that the respondent as the controller and supervisor of a school at which he was a pupil owed to him a duty to take reasonable care for his safety. The respondent’s breach of that duty was alleged to have caused the appellant’s injury. Those were the elements of the appellant’s cause of action. The respondent’s liability might flow directly from its own breach of duty, which was non-delegable in the sense that it could not avoid liability by delegating the duty to another, or indirectly or vicariously from the breach of duty of the teacher, whom it employed. There could be a breach of a duty owed both by the respondent and by the teacher making the respondent both directly and indirectly liable for what had happened.

15 Judge Dent made no reference to pleading although annexed to the affidavit of Ms Gittany of 11 June 1999 was a copy of a statement of claim which the appellant sought to rely upon. In that document the appellant pleaded his cause of action as follows:

“The plaintiff’s injury, loss and damage was caused by the negligence of the defendant.
PARTICULARS OF NEGLIGENCE
(a) Failing to exercise adequate and effective supervision over pupils at the school.
(b) Failing to exercise adequate and effective supervision over the defendant’s employed teachers.
(c) Allowing the plaintiff to leave school premises during school hours.
(d) Allowing the plaintiff to drive a manual vehicle when the defendant knew or ought to have known that the plaintiff was not licensed to drive a manual vehicle.
(e) Failing to prevent the plaintiff from driving a manual vehicle in circumstances where the defendant knew or ought to have known that he was unlicensed to drive a manual vehicle.
(f) Offering the plaintiff a monetary inducement to drive the manual vehicle when it was unsafe to do so.
(g) Allowing the plaintiff to drive an uninsured vehicle.
(h) The defendant is vicariously liable for the action of its employed teacher, Ms Leonie Finn.”

16 In the course of argument on the appeal it was pointed out that this pleading did not discriminate between the respondent’s direct liability and its vicarious liability. Nor did the pleading provide any greater particularity to demonstrate for example how it was said that the respondent failed to exercise adequate and effective supervision over pupils at the school.

17 However, it is important to note that apparently for the purposes of this application the respondent sought no greater particularity and Judge Dent was content to decide the matter without reference to this proposed pleading. At the suggestion of the Court the appellant filed an amended form of statement of claim which purported to divide the particulars between breaches of “non-delegable duty of care” and “vicarious liability” and provided some greater particularity in each paragraph. Also in response to the Court’s suggestion the respondent handed up a draft form of defence.

18 The duty of care that the respondent owed to the appellant manifested itself whilst the appellant was under the control and supervision of the respondent at the school as a duty to take reasonable care for his safety. That duty springs from the relationship between the respondent as the school and the appellant as a pupil; see The Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Rep 81-399 at 63,596. Arguably the respondent allowed the appellant to leave the school premises on a school day in a motor vehicle that he was not licensed to drive. There may be more to the breach of duty than that but that in itself gives rise to an arguable claim that the respondent was in breach of its duty of care to the appellant. Arguably the respondent’s employee not merely requested but encouraged the appellant to this action.

19 The application was defeated on the basis that the claim was a futile one. Mr Kennedy SC put an attractive argument suggesting defences open to the respondent in the proceedings. In careful written submissions, he raised various defences based on causation, voluntary assumption of risk, novus actus interveniens and ex turpi causa. However none of these had such persuasive force that the plaintiff’s claim must fail. I am not persuaded that the appellant’s cause of action founded on negligence was so unarguable that the grant of an extension would be futile. Accordingly, in my opinion, Judge Dent was wrong to refuse to grant the extension of time.

20 The respondent submitted that if the appeal were to be allowed the application should be sent back so that the matters set out in s60E of the Act could be reconsidered by the District Court in light of the proposed amendments to the statement of claim. However, I think that this appeal can be decided on the footing of the statement of claim annexed to Ms Gittany’s affidavit of which the respondent sought no greater particularity. Judge Dent, in his reasons for judgment, said that he was satisfied that a fair trial could be had. He expressed this satisfaction after referring to each of the matters set out in s60E(1) except perhaps (f) which is of no moment. If his Honour erred in refusing to grant the application on the basis that it would be futile to do so, I do not think the respondent is entitled to an opportunity to re-litigate the other matters which the trial Judge resolved. The future of the pleading beyond the draft statement of claim to which I have referred, the need for greater particularity and any limits on the way in which the appellant can now put its case will be dealt with by the District Court.

21 I propose the following orders:

1. Appeal allowed;
2. Set aside the order of Judge Dent of 21 October 1999 refusing the application;
3. Order that the limitation period for the appellant’s cause of action founded on negligence for damages for personal injury against the respondent be extended for 28 days from the date of this judgment;
4. The respondent to pay the appellant’s costs of the application and of this appeal.

The circumstances giving rise to this appeal are set out in the reasons for judgment of Sheller JA.

23 In Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497, Priestley JA joined in an order under s 60G of the Limitation Act 1969 extending the limitation period for the causes of action proposed by the plaintiff. At pp 515-516, his Honour said that he had reached conclusions about the arguability of some issues “only with hesitation” and that he recognised that they might be “vulnerable to a strict approach” but that it would be preferable if “a properly satisfactory and fully explored answer” were given after all relevant evidence was before the Court at a trial. At p 516, his Honour added that that case seemed to him “… pre-eminently to be of the kind where a broad approach should be taken to questions of arguability of legal propositions which may be novel but which require careful consideration in the light of changing social circumstances.”

24 With similar considerations in mind, I agree with Sheller JA that the appellant’s cause of action founded on negligence is not so unarguable as to justify refusal of an extension of time on that basis.

25 I agree with the orders proposed by Sheller JA.

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