Berriman v Cricket Australia
[2007] VSC 365
•28 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6015 of 2007
| MATTHEW BERRIMAN | Plaintiff |
| v | |
| CRICKET AUSTRALIA | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2007 | |
DATE OF JUDGMENT: | 28 September 2007 | |
CASE MAY BE CITED AS: | Berriman v Cricket Australia | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 365 | |
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LIMITATION OF ACTIONS – Torts – postponement of the bar - Section 36 and section 48 of Limitations of Actions Act 1936 (S.A.) – material fact under s 48(3) of Limitation of Actions Act 1936 (S.A.) - Law Reform (Ipp Recommendations) Act 2004 (S.A.) – prospective operation of amendments to the Limitations of Actions Act 1936 (S.A.) – exercise of discretion
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | Richard & Bennison |
| For the Defendant | Mr M W Richardson | Browne & Co |
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TABLE OF CONTENTS
Proceedings......................................................................................................................................... 2
The issues............................................................................................................................................ 2
The factual matrix.............................................................................................................................. 3
Relevant statutory provisions.......................................................................................................... 4
Victorian Law............................................................................................................................ 4
South Australian Law................................................................................................................ 4
Do the amending provisions of the Ipp Recommendations Act apply to this case?............ 7
The first condition under s 48: ascertainment of a fact material to the plaintiff’s case: ss(3)(b)(i).............................................................................................................................................................. 11
Analysis................................................................................................................................... 13
The second condition: the exercise of discretion – is it just to grant an extension?.......... 16
Summary............................................................................................................................................ 19
HIS HONOUR:
Proceedings
On the 4th of May 2007 the plaintiff issued proceedings in this Court against the defendant for damages for personal injuries. The claim was based upon a significant injury to the right shoulder sustained by the plaintiff on the 13th of April 2001 at the Commonwealth Bank Cricket Academy conducted at Del Monte, on Henley Beach in Adelaide.
In the original defence filed on the 13th of June 2007 the defendant asserted that the plaintiff’s claim was barred pursuant to s 36(1) of the Limitation of Actions Act 1936 of South Australia (“the Limitation Act”). It further contended that no extension of time could be granted by reason of s 48(3)(b) of the Act.[1]
[1]The amended defence subsequently filed did not affect this part of the defence.
On the 29th of August 2007 Master Kings ordered that an application for leave by the plaintiff to commence proceedings pursuant to s 48(1) and (2) of the Limitation Act should be heard by a judge of this Court.
In support of that application the plaintiff swore an affidavit on the 20th of July 2007, the terms of which I shall advert to later.
The issues
The issues that arose for determination were as follows:
(a)Do the amendments effected by the Law Reform (Ipp Recommendations) Act 2004 (SA) (“the Ipp Recommendations Act”) to s 48 of the Limitation Act apply to this application.
(b)Whether the plaintiff has satisfied the pre-condition stipulated by s 48(3)(b) of the Limitation Act by establishing that a fact material to his case was not ascertained by him until a point of time during the 12 months prior to the issue of the writ.
(c)In the event that s 48(3)(b) was satisfied, whether the justice of the case required the granting of an extension of time pursuant to s 48(1) and (2) of the Limitation Act.
The factual matrix
The plaintiff was born on the 20th of April 1984. He swears that he was a highly skilled cricketer playing at both State and National levels in under age competition.
In a history given to Mr Polke, an orthopaedic surgeon who examined the plaintiff in April 2007, the plaintiff gave a history of an original injury occurring at the age of 15 when he suffered a painful subluxation to his right shoulder whilst playing soccer. He continued to play cricket although he had some problems with throwing.
On the 12th of April 2001 shortly before his 17th birthday, he suffered a dislocated right shoulder during a water polo game carried on at the Commonwealth Bank Cricket Academy, Del Monte in Adelaide. The statement of claim alleges that the training program was operated and run by the defendant. The substance of the complaint appears to be that, given his previous shoulder problem, he should not have been permitted by the defendant to engage in water polo.
Subsequent to this injury the plaintiff has had a litany of surgical procedures to his right shoulder. It appears that Mr Greg Hoy, orthopaedic surgeon, has carried out three shoulder reconstructions and there have also been a variety of other procedures directed to either fixing or ameliorating the plaintiff’s significant shoulder problems.
The plaintiff, owing to the problems to his shoulder, retired from elite level cricket on the 1st of March 2006.
On the 4th of July 2006 the plaintiff underwent his final operation at the hands of Mr Hoy which is described by Mr Young, the assistant orthopaedic surgeon, as an arthroscopic debridement at the long head of the biceps with tenodesis scar revision[2].
[2]Exhibit MCB8 Report of Mr Young of 16 August 2006.
Relevant statutory provisions
It was accepted by both parties, as it had to be, that the substantive law (including the application of any relevant limitation periods) had to be that of South Australia.[3]
[3]See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, Dow Jones & Company Inc v Gutnick 210 CLR 575, Amaca Pty Ltd v Frost (2006) NSWCA 173 and Porter v Bonojero Pty Ltd [2000] VSC 265.
Victorian Law
The application of the limitation law of another State or Territory is also the subject of statutory enactment in this State. The Choice of Law (Limitation Periods) Act 1993 requires a court in this State to characterise an interstate or territory limitation law as part of the substantive law of that state or territory.[4] Moreover s 6 requires of a court in respect of “a discretion conferred under a limitation law of a place being another State … that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place”.
[4]Choice of Law (Limitation Periods) Act 1993 s 5.
South Australian Law
Section 36(1) of the Limitation Act requires a plaintiff claiming damages in respect of personal injuries to commence that action “within three years next after the cause of action accrued but not after”. However s 45(1) extends the period of time in which to bring such a claim if a person is under a legal disability. The relevant part reads as follows:
The time for bringing that action or proceeding shall, subject to subsection (3) of this section, be extended by the period or periods for which the disability exists or continues after the time at which the right to bring the action or proceeding arose.[5]
[5]Subsection (3) provides a long stop period of 30 years.
In other words in the case of a minor the limitation period does not run until the plaintiff turns 18. So in the present case the plaintiff’s claim (absent an extension of time) became potentially statute barred on the 20th of April 2005.
The extension of time provisions contained within the Act are to be found within s 48. I reproduce the relevant parts:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for –
(a)instituting an action; or
…
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that –
(a)the court has jurisdiction to entertain; or
(b)the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not –
…
(b)empower a court to extend a limitation of time prescribed by this Act unless it is satisfied –
(i)that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
…
(3a)A fact is not to be regarded as material to the plaintiff’s case for the purposes of subsection (3)(b)(i) unless –
(a)it forms an essential element of the plaintiff’s cause of action; or
(b)it would have major significance on an assessment of the plaintiff’s loss.
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff’s case if it establishes –
(a)a substantial reduction of the plaintiff’s capacity to work; or
(b)that the plaintiff will require substantially more medical care than previously expected; or
(c)a significant loss of expectation of life.
(3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to-
(a)the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b)the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c)the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and
…
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.”
The Act is set out in simple and straightforward terms.[6] The preconditions to the grant of leave are as follows:
(a)The writ must contain an endorsement to the effect that the plaintiff requires an extension of time pursuant to s 48. The plaintiff has complied with this provision.
(b)The plaintiff must satisfy the Court that in a period of 12 months prior to the institution of proceedings the plaintiff ascertained a fact material to his or her case.
(c)The plaintiff must satisfy the Court that justice requires the extension of the time in which to institute the action.
In the event of the plaintiff satisfying the Court of these three matters, the Court may exercise its discretion to extend the time in which to institute the proceeding.
[6]Compare the Victorian Limitation of Actions Act which provides for different forms of limitation periods depending upon the circumstances in which the plaintiff is injured.
It is to be noted that the Ipp Recommendations Act inserted subsections (3a) and (3b) within s 48. Subsection (3a) provides criteria for determining whether a fact is material or not. Subsection (3b) provides criteria for the exercise of discretion pursuant to s 48(1) and (2).
Do the amending provisions of the Ipp Recommendations Act apply to this case?
The Ipp Recommendations Act introduced a wide ranging set of amendments to the law affecting personal injury actions in South Australia. Primarily, the changes were contained in the Wrongs Act 1936. In addition, s 48 of the Limitations Act was amended by s 76 which inserted sub-ss (3a) and (3b) – as set out in para 16 above. However, Schedule 1 of the Act contained the following important transitional provision:
(1) The amendments made by the Law Reform (Ipp Recommendations) Act2004 (the Ipp Recommendations Act) are intended to apply only prospectively. (my emphasis).
In the Second Reading Speech in the Legislative Council of the Parliament of South Australia the Minister said:
The amendments made by this bill are intended to operate prospectively and thus, if a course [sic] of action is based wholly or partly on an event that occurred before the commencement of the legislation, the case will be determined as if these amendments had not been made. [7]
[7]15 October 2003
Mr R.H. Stanley who appeared for the plaintiff contended that the terms of the transitional provision of the Ipp Recommendations Act were patently clear. The amendments were intended to only apply prospectively and therefore had no retrospective effect upon causes of action arising prior to the 1st of May 2004. He relied upon the decisions of Simpson J in the N.S.W. Supreme Court in Rundle v Salvation Army (South Australia Property Trust) & Anor[8] and Gray J in the S.A. Supreme Court in Trevorrow v State of South Australia (No 5).[9] In both these cases the cause of action arose prior to 1 May 2004 and the unamended version of the Limitations Act was applied.
[8][2007] NSWSC 443 at paras 73-78.
[9][2007] SASC 285 at [894].
Mr Richardson, who appeared for the defendant contended that the amendments to the Limitations Act affected by the Ipp Recommendations Act did take effect albeit that the cause of action arose prior to the Ipp Recommendations Act coming into force. He contended that the right to institute an application for the extension of time was a different right to that pertaining to the cause of action and had not accrued at the time that the Act came into force. Moreover he asserted that the proper characterisation of sub-ss (3a) and (3b) was that they were procedural rather than substantive and therefore applied irrespective of the date of the accrual of the cause of action.
In each of Rundle and Trevorrow, the respective Courts noted the clear express terms of s 1 of the Schedule. I respectfully agree. In my view, the clear intention of the legislature was to draw a line as at the 1st May of 2004, the date upon which the Ipp Recommendations Act came into force. Any cause of action which arose prior to that date was to be governed by the relevant legislative provisions in force prior to that date. This was the interpretation given to the section in both Rundle and Trevorrow. In my view, it matters not whether the provisions are characterised as substantive or procedural. Nor does it matter whether the rights of the plaintiff are characterised as choate or inchoate. Nor does it matter that in both Rundle and Trevorrow the claims were potentially statute barred prior to 1 May 2004. What does matter is the clear Parliamentary intent.
In this case the cause of action arose prior to the 1st of May 2004. Neither sub-s (3a) nor (3b) formed part of the legislative scheme at that time. To apply sub-ss (3a) and (3b) to a claim which arose prior to the 1st of May 2004 would be to give those sections (howsoever categorised) retrospective operation. This is patently contrary to the clear Parliamentary intent, which was that the Ipp Recommendation Act amendments would only have prospective force. Accordingly, I reject the defendant’s argument as to the application of sub-ss (3a) or (3b) to this claim.
Out of deference to Mr. Richardson’s argument, I should say that in any event, I take the view that as a matter of classification the “extension of time” provisions of the unamended Limitations Act ought to be treated as substantive, rather than procedural. I also think that such rights arise at the time of injury but remain inchoate or contingent until the Defendant asserts that the claim is statute barred. If I am correct in this regard then such rights are protected absent specific legislative intent to the contrary.[10] I am of this view for the following reasons.
[10]See Maxwell v Murphy (1957) 96 CLR 261 at 267, Fisher v Hebburn Ltd (1960) 105 CLR 188 at 202, TAC v Lanson (2001) 3 VR 250 at 268-269.
The Choice of Law (Limitation Periods) Act requires me to regard a limitation law as being substantive. Although the definition of “limitation law” in s 3 may not be, on its face, as expansive as to cover an extension of time provision, the terms of s 6 indicate that such an application is to form part of the substantive limitation law as defined by this Act. Section 6 refers to the exercise of “a discretion conferred under a limitation law of a place being another State”(my emphasis). It is to be inferred therefore that one has regard to the whole of the limitation laws, including the statutory bar and the right to extend time, all of which is deemed to be substantive.
Moreover, the statements of principle by the High Court in John Pfeiffer Pty Ltd v. Rogerson[11] in relation to the differentiating factors distinguishing procedural and substantive matters under the general law seem to point decisively to the right to extend time as being substantive and not procedural:
Secondly, matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain ‘rules which are directed to governing or regulating the mode or conduct of court proceedings’ are procedural and all other provisions or rules are to be classified as substantive.
These principles may require further elucidation in subsequent decisions but it should be noted that giving effect to them has significant consequences for the kinds of case in which the distinction between substance and procedure has previously been applied. First, the application of any limitation period, whether barring the remedy or extinguishing the right, would be taken to be a question of substance not procedure (which is the result arrived at by the statutes previously referred to). The application of any limitation period would, therefore, continue to be governed (as that legislation requires) by the lex loci delicti. Secondly, all questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti.[12] (my emphasis).
[11](2000) 203 CLR 503
[12]Supra at paras 99 and 100
Accordingly, I reject the contention on the part of the defendant that the ability to extend time was simply a procedural matter and therefore not protected by the transitional provision. Further the law recognises that there are rights or liabilities which may be inchoate or contingent and thus not enforceable at all times. Nevertheless such rights may receive the same protection as choate or complete rights.[13] I do not think that anything said by Simpson J in Rundle v. Salvation Army in relation to the existence of an accrued right to make such an application as at 1 May 2004 is contrary to this proposition.[14]
[13]TAC v Lanson Supra at 272 and 275 – 276; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 – 15 and Victorian Workcover Authority v Kenman Kandy (2002) 6 VR 666 at para 15.
[14]At para 76, although given the nature of s 36 I am not sure, with respect, that there was no accrued right to take action per se.
I have already indicated that I do not think it necessary given the clear terms of s 1 of the Schedule to determine questions of substantive rights or procedure, or to determine the nature of the substantive right. However if it is necessary to do so, I conclude that the plaintiff had a contingent or inchoate right as at 1 May 2004 which permitted him to apply for an extension of time in the event of his action becoming statute barred. That right flowed from the substantive law of South Australia as it was in force at the time of his injury. That substantive law included s 48 in its unamended version. Far from there being any demonstrable legislative intent to affect the plaintiff’s rights retrospectively, the legislature went out of its way to make it clear it did not wish to do so by limiting the effects of the Ipp Recommendations Act “to apply only prospectively”.
Indeed, to construe the section in the way argued for by the defendant would be patently contrary to the expressed will of the South Australian legislature. It follows that the plaintiff’s application is to be determined pursuant to s 48 as it stood prior to the 1st of May 2004. Subsections (3a) and (3b) are to be ignored.
The first condition under s 48: ascertainment of a fact material to the plaintiff’s case: ss(3)(b)(i)
As I have noted the plaintiff must satisfy me that he ascertained a material fact within the period from 3 May 2006 to 3 May 2007.
At the commencement of the proceeding, I asked Mr. Stanley to identify that fact or those facts which were material to the plaintiff’s case and which were ascertained within the relevant period. He did so in the following terms:-
(a)That it was not until the final unsuccessful attempt at surgical repair on the 4th of July 2006 that the plaintiff was able to properly assess his loss and damage. At that time he became aware as a result of the advice from his medical practitioners that the shoulder condition would not improve.
(b)The plaintiff did not become aware until he read Mr Polke’s report (of the 3rd of April 2007) that there was a clear connection between his ongoing right shoulder problem and the alleged negligence of the defendant.
Mr Richardson, who appeared for the defendant relied upon a number of matters which he said meant the plaintiff could not satisfy the material fact requirement.
Firstly, he argued that the plaintiff had not, by the material put before the Court, established that any of the material facts adverted to were relevant to the cause of action. He argued that the medical material did not enable the Court to determine that any deterioration in the plaintiff’s condition since September 2001 was related to the injury itself and therefore had no relationship to the cause of action and did not fall within the rubric of the section.[15]
[15]Para 20(a) of the defendant’s written submissions.
Secondly, he argued that even if one accepted the propositions advanced by Mr Stanley as to what constituted a material fact, neither fell within the principles established by decided cases in South Australia.
In the plaintiff’s affidavit he adverts to the following matters relevant to this period:
17.Due to the pain in my right shoulder, I was limited in my performing everyday activities such as showering, lifting, carrying, computer work and driving a manual vehicle. I resigned from my job. After consultation with my medical practitioners, I was hopeful that the fifth operation of 4 July 2006 would alleviate my ongoing problems.
18.Following the fifth operation of 4 July 2006 and subsequent injections, my condition did not improve. I attended a review with Mr Hoy on 29 May 2007. I am informed by my medical treaters and I believe that further surgery is unlikely to improve my condition. I am attending Mr Brukner for non-surgical pain management as set out in his report referred to in paragraph 13 above.
19.My solicitors arranged for me to attend Mr Michael Polke, orthopaedic surgeon, on 3 April 2007. It was through that request that my solicitors were able to advise me that medical evidence had been obtained that ‘it (was) likely however that the injury caused the Bankart stripping of the anterior right shoulder capsule … on 12 April 2001’.
20I believe that I was not aware of facts material to my cause of action until after my final surgical procedure of 4 July 2006 after which time was possible for me to assess the loss and damage which I had suffered as a result of my injuries. Furthermore, the evidentiary link between the negligence of the defendant and my ongoing problems with my right shoulder only became clear as a consequence of receipt of the report of Mr Polke to which I have referred.
21.I believe that I was not in a position to provide instructions to commence proceedings against the defendant until a period within 12 months prior to the commencement of this proceeding.
Mr Polke’s report was annexed to the plaintiff’s affidavit[16] and the relevant parts read as follows:
[16]Exhibit MCB9 Report of Mr Polke of 3 April 2007.
1.The history obtained from Matthew, diagnosis, treatment and prognosis.
Matthew suffers from bilateral shoulder instability in the first instance; the left shoulder has now become asymptomatic following the strengthening exercises.
The right shoulder required multiple operations and now appears stable but with a great deal of ongoing pain due to past trauma and scarring.
2.Whether in your opinion the incident of 12 April 2001 could have caused his particular injuries.
Although he has a history of bilateral shoulder instability even before the incident on 12 April 2001, this appears to have been a substantial aggravating factor requiring the first operation.
3.Whether in your opinion Matthew’s previous injury of March 2000 is related to Matthew’s injury of 12 April 2001.
He appears to have suffered from developmental capsular laxity, which predisposes to recurrent dislocation of the shoulders, evident during his teenage years.
There was a previous injury at school while playing soccer, which appears to have been an additional casual (sic) factor to recurrent subluxation of the shoulder. The incident on 12 April 2001 appears to have been an important cause leading to worsening of his recurrent dislocation and instability of the right shoulder.
4.If the incident on 12 April 2001 had not occurred, having regard to Matthew’s cricket activities. Is it likely that Matthew would have suffered the ongoing problems with his shoulder.
There is some conjecture regarding as to what would have happened had he not sustained the 2001 injury; it is likely however that the injury caused the Bankart stripping of the anterior shoulder capsule of his right shoulder on 12 April 2001, which required the subsequent operative repair.
Analysis
I shall deal briefly with the first contention of the defendant, which is that the plaintiff had not established that any of the facts adverted to were material to the cause of action and therefore the subsection was not engaged.
In my view, this argument is devoid of merit. True it is that on the basis of the history provided to Mr Polke, the plaintiff made a reasonably good recovery immediately after his injury in 2001. However, the contention that there is no prima facie connection between his current condition and that of his injury in 2001[17] strikes me as extraordinary in the context of this case. Mr Polke’s opinion, which is reproduced at para 34, makes it clear that the incident on 12 April was “an important cause leading to worsening of his recurrent dislocation and instability of the right shoulder” (my emphasis). He described it as a “substantial aggravating factor” in relation to the first operation which was the clear precursor to a succession of other procedures. Moreover, I would have thought that if such an argument was to be mounted, the plaintiff would have been cross-examined and for that matter, contrary evidence to that of Mr Polke adduced. I reject the proposition that the plaintiff has not shown that his current condition has any relationship to the April 2001 injury.
[17]T68.
The question then to be addressed is whether the two matters identified by the plaintiff as constituting material facts are, indeed, such. As noted, the Choice of Law (Limitation Periods) Act requires me to exercise my discretion as it has been in comparable cases in South Australia. The starting point for such a consideration is the decision of the High Court in Sola Optical Australia Pty Ltd v. Mills[18] concerning s. 48 of the Limitation Act:
A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word ‘material’, inter alia, to mean ‘Of such significance as to be likely to influence the determination of a cause’. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to ‘facts material to the plaintiff’s case’.
[18](1987) 163 CLR 628 at 636-637.
It has been subsequently observed that the Sola Optical test has led to “a liberal approach” in determining compliance with s48(3)(b)(i)[19]. This is best illustrated by the remarks of Cox J in Wright v. Donatelli[20] in which his Honour said:
Perhaps one might be permitted a general observation about these s 48 applications. Everyone now understands that the test for an ascertained material fact under s 48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out of time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways.[21]
[19]See for instance Finlay & Ors v. Silcon Industries Pty Ltd & Anor (2003) 229 LSJS 14.
[20](1995) 65 SASR 307.
[21]Supra at 410.
The facts in Wright v. Donatelli were relied upon by Mr Stanley. In that case, the material facts which were said to have been ascertained by the plaintiff within the relevant period were (a) the fact of a medical practitioner’s opinion; (b) the fact that the medical practitioner’s opinion was of a permanent residual disability; (c) the fact of the medical practitioner’s report itself.
In respect of the communication of the medical opinion to the plaintiff constituting a relevant material fact, Lander J, with whom Cox and Perry JJ agreed, said as follows:
Whilst it may be that Mr Cohen’s opinion is in accord with the appellant’s own knowledge, that does not mean Mr Cohen’s opinion is not a material fact. I think the learning of Mr Cohen’s opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.
Much was made of the proposition that all of this was contrived. In truth, it was put, this appellant always intended to bring proceedings, but did not because of the appellant’s solicitors default, and for no other reason. It was further put that efforts were made, on the advice of counsel, for the obtaining of a material fact and of informing the appellant of that material fact, only for the purpose of qualifying the appellant under the section. I think all of that is so, but there was nothing sinister in that. If it is a matter which would make it unjust, in the circumstances, to extend time, that is a matter which can be taken into account in the exercise of the discretion, after the plaintiff has first qualified by establishing the ascertainment of the material fact. (my emphasis).[22]
[22]At p.321.
As I have already pointed out, I am obliged to exercise my discretion in accord with comparable cases in South Australia. It seems clear to me that the plaintiff can establish several material facts which have been ascertained by him during the relevant period.
First, and I think most significant, is the fact that the plaintiff swears that after the July 2006 procedure, his condition did not improve and that he had been advised that further surgery was unlikely to improve his condition. This, it seems to me, is a “new material fact”[23], particularly given the large amount of treatment provided for his shoulder up to and during the period. I also accept that it was at this time that he was able, as a matter of fact, to determine what were the likely consequences to him in terms of losses in the future, i.e. at least through his inability to play cricket.
[23]See Trevorrow at paras 912-915.
Secondly, I accept that it was only after Mr Polke’s report was received that he became aware, or to use the words of the legislation, ascertained that a cause of his current disability was the April 2001 injury. Again I think that this is a new material fact. Whilst this might seem a little surprising given the course of events that followed the 2001 surgery, the plaintiff was not cross-examined or challenged as to his sworn assertion that the evidentiary link only became clear as a consequence of the receipt of the report. In Pomeroy v. Thwaites Witham Pty Ltd[24], Doyle CJ said of the receipt of a valuation report which crystallised the plaintiff’s loss in an action for conversion:
The judge erred again when placing weight, as he evidently did, on the fact that the valuation added ‘nothing new’ to the plaintiff’s knowledge of her loss. First of all, it did add to that knowledge, although perhaps not much. But, more significantly, the judge’s comment overlooks the fact that the plaintiff now knew that she had expert evidence as to the amount of her loss. The judge’s comment overlooks this point. at para 29 (my emphasis).
[24][2001] SASC 125.
In this case, the receipt of the report from Mr Polke meant that the plaintiff now knew or ascertained the fact that he had expert evidence to support the contention that his condition was linked to his water polo injury, as well as the fact that he had expert evidence which precisely identified the nature of the injury in the context of a recurring shoulder problem.
Given the test that had been applied by South Australian courts in determining what constitutes a material fact, I find that the plaintiff has satisfied the test laid down by s 48(3)(b).
The second condition: the exercise of discretion – is it just to grant an extension?
In Pomeroy v Thwaites Witham Pty Ltd Doyle CJ said of the discretion under s 48(2)(b):
The discretion conferred by s 48(2)(b) of the Limitation of Actions Act 1936 (SA) is virtually unrestricted. The only requirement, once the discretion is enlivened, is that it be ‘just to grant the extension of time’.[25]
[25]Supra at para 34.
In several cases decided prior to the seminal decision of the High Court in Brisbane South Regional Health Authority v Taylor[26], South Australian Courts identified a number of factors relevant to the exercise of the discretion to extend time[27]. They were as follows:
[26](1996) 186 CLR 541.
[27]Ulowski v Miller (1968) SASR 277 at 280, Lovett v Le Gall (1975) 10 SASR 479 at 494.
(a)the length of the delay;
(b)the explanation for the delay;
(c)the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred;
(d)the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay;
(e)the conduct of the defendant in the litigation;
(f)the conduct of the plaintiff;
(g)the nature, importance and circumstances surrounding the ascertainment of the new material facts.
Whilst each of the factors remains, in my view, relevant to the determination of whether the discretion under s. 48 should be exercised, the test is that stated by the South Australian Full Court in Pomeroy in which judgment was delivered subsequent to the decision in Brisbane South Regional Health Authority v Taylor.
In Pomeroy both Doyle CJ and Gray J (with whom Nyland J agreed) considered the effect of Brisbane South Regional Health Authority v Taylor upon s 48 of the Limitations Act. Both Doyle CJ and Gray J acknowledged the differing approaches of members of the High Court. Doyle CJ concluded:
However it is at least clear that the plaintiff must demonstrate that the circumstances of the case establish that it is just to grant the extension of time.[28]
[28]At para 36.
Gray J, after a detailed analysis of the respective judgments in Brisbane South Regional Health Authority v Taylor concluded in Pomeroy as follows:
The application of either test lead to the same conclusion in this matter. Although this is not the occasion to express a concluded view about the correct approach, I consider that when dealing with an application to extend time the overriding enquiry should be – can there be a fair trial? The South Australian legislative scheme supports such an approach as it leaves the Court with an unfettered discretion once an applicant has met the qualifying condition.[29] (my emphasis).
[29]Supra at para 81 – the qualifying condition being sub-s (3)(b) – the material fact condition.
His Honour then said:
The South Australian Parliament enacted a scheme that provided a qualifying condition for an application seeking a discretionary grant of an extension of time. Once that condition was satisfied, it “left all the rest to the discretion of the court”[30].
[30]Supra at para 82.
In favour of extending the time in which the plaintiff may bring the claim the plaintiff points to the following factors:
· No specific prejudice is alleged by the defendant, not even the possibility of such prejudice has been floated.
· The delay between the date of the cause of action and the date of issue of proceedings, whilst of some significance, is not so long that one could infer much in the way of prejudice by reason of its “insidious effect on the memory of witnesses”[31].
· The injuries allegedly sustained by the plaintiff are serious and to shut him out of litigating his cause of action would result in significant prejudice to him.
[31]Supra at para 87.
The defendant points to the following matters to defeat such an application:
· The lapse of time since both the accrual of cause of action and the expiry of the limitation period.
· Presumptive prejudice caused by reason of the delay.
· The fact that the plaintiff has not proffered any explanation for the delay and it can be relevantly inferred that such delay is entirely the choice of the plaintiff.
· No fault or delay on the part of the defendant.
· The application is based upon “trumped up, frivolous or artificially manufactured material”.
I specifically reject the last of the defendant’s submissions. In my view there was nothing manufactured in terms of the plaintiff’s final appreciation that, despite all the medical interventions over a space of five years, he now had no prospect of regaining proper use of his shoulder. Nor is there anything manufactured about the proposition that the plaintiff now knows in clear terms that he has expert evidence from Mr Polke to back up his case. If there was anything manufactured or trumped up, one would have expected that to have been the subject of cross-examination. The plaintiff’s credit was not impugned. The plaintiff was not required for cross-examination and accordingly I accept his evidence as to the matters contained within his affidavit.
I have taken into account all of the considerations detailed above, as well as the primary consideration: “can there be a fair trial”. In my view the delay is not such that one can expect that presumptive prejudice is of any significance. The absence of any suggestion on the part of the defendant that it is prejudiced in any way, either in terms of establishing facts or obtaining medical opinions, or even of the possibility thereof leads me to the conclusion that there can be a fair trial.
I am satisfied that the application should be allowed and that it is appropriate to grant the plaintiff leave to commence proceedings out of time.
Summary
I will make the following order: that the time within which the proceeding in this Court may be instituted be extended to 4th May 2007.
I will determine the question of costs upon application by the parties.
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