Bittar v. Taringa Rovers Soccer Football Club & Anor
[2008] QDC 297
•11 December 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Bittar v Taringa Rovers Soccer Football Club & Anor [2008] QDC 297
PARTIES:
OLIVIER HAMID BITTAR
Plaintiff
AND
TARINGA ROVERS SOCCER FOOTBALL CLUB
Defendant
AND
BRISBANE CITY COUNCIL
Third Party
FILE NO/S:
BD1193/08
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
11 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
28 November 2008
JUDGE:
McGill DCJ
ORDER:
Application dismissed with costs
CATCHWORDS:
LIMITATION OF ACTIONS – Personal Injuries – extension of time – opinion of expert as to responsibility of third party – whether material fact – whether within means of knowledge of applicant
Limitation of Action Act 1974 ss 30, 31
Dick v University of Queensland [2000] 2 Qd R 476 – cited.
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 – applied.
Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 – cited.
Healy v Femdale Pty Ltd [1993] QCA 210 – applied.
Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 – cited.
NF v State of Queensland [2005] QCA 110 – applied.
Randel v Brisbane City Council [1984] 2 Qd R 276 – cited.COUNSEL:
RF King-Scott for the plaintiff
R Chan (solicitor) for the defendant
JJ Wiltshire for the third party
SOLICITORS:
Shine Lawyers for the plaintiff
Carter Newell for the defendant
Barry & Nilsson for the third party
This is an application to extend the limitation period under s 31 of the Limitation of Actions Act 1974 (“the Act”). The applicant alleges that he suffered an injury on 14 May 2005 while playing soccer on a field owned by the third party and leased to the defendant. The applicant was at the time a member of one of the defendant’s teams. He came to be injured while playing on this field in a game of competitive soccer against a team from a different club. His case is that during the game while attempting to position himself to defend an attacking player from the opposing team he was running or shuffling backwards on the left side of the field when his left foot stepped on a large tuft or clump of grass which was surrounded by and higher than a bare dirt area causing his left ankle to roll. He fell to the ground and suffered a serious injury to his left knee.
The PIPA process
The plaintiff consulted solicitors about the matter on 26 March 2006, and a Part 1 notice of claim under the Personal Injuries Proceedings Act 2002 (“PIPA”) was sent to both the defendant and the third party on 21 August 2006.[1] The notice described the accident and identified both the defendant and the third party under Item 17 as the person that caused it. Under Item 18 the following reasons were given for this belief:
“The injured person believes that the respondents caused the incident as a result of:
· failing to implement any or any reasonable system of inspection of the fields to ensure that their condition did not pose a foreseeable risk of injury to the players;
· failing to implement any or any reasonable system of maintenance/upkeep of the fields;
· failing to take any or any reasonable care for the safety of the claimant.”
[1]Affidavit of Leddy filed 11 November 2008 paras 4, 5; Exhibit FJL1.
On 22 May 2006 solicitors for the third party advised that it considered itself to be a proper respondent to the claim and was satisfied that the Part 1 notice of claim was a complying notice of claim. There was no response from the defendant within one month so that the notice of claim served on it was deemed to be compliant.[2] Subsequently the defendant disclosed documents as required under PIPA.[3] These included an assessor’s report which referred to an interview with the president of the club, who said that the field was mown weekly, and sometimes more frequently prior to the season when the weather was hot and growth occurred quickly. In 2005 the third party engaged contractors to aerate the field, spray for weeds and apply top dressing; in 2004 similar work had been performed at the expense of the defendant. Also included was a ground appraisal for the grounds dated 23 June 2004 which described the condition of the playing surface as excellent.
[2]Ibid paras 6, 7. Presumably at some stage both respondents denied liability. The affidavit did not give dates for this.
[3]Ibid Exhibit FJL3.
There was also an email dated 9 October 2007 stating that the field was fully irrigated, and that water restrictions did not come into effect until after the time of the incident. An assessor’s report dated 31 May 2007 records an interview with the General Manager of Football Brisbane, who advised that referees could assess field conditions, and might regard a field as unplayable, that is unsuitable for a game, if it were bad enough, though that was unusual. He gave an example of a field which was ruled unplayable by a referee in 2005, which caused some unhappiness among those present at the time, though he agreed with the referee’s decision, as parts of the field had subsided. There was another occasion when a field was ruled unplayable after sections of the grass were killed apparently as a result of the field having been sprayed for weeds. There were no inspections of the field by the governing organisation in 2005, not all fields being inspected every year. Inspections could be initiated if there was some concern about the condition of a particular field.
The defendant has no paid employees, all club officials volunteering their services, although the premier league coach received a small payment in respect of his time. Field maintenance, such as weekly mowing and line marking, was at the time carried out by volunteers. It was difficult to get people to assist with the physical work. They had no record of any problems with the field during 2005. The team sheet for the game in which the claimant’s incident occurred identified the referee, who had had 14 years experience and had no particular recollection of the game. That referee had said that it was not unusual for fields to have bare patches of ground, but had he considered the field unsafe he would not have allowed the game to proceed. A witness described the plaintiff as having fallen as he turned to chase the ball when it came in his direction, and subsequently being in pain. Copies of the team sheets for home games of the plaintiff’s team in 2005 were said to be attached to the assessor’s report but are not included in the exhibit.
A further assessor’s report dated 14 March 2007 revealed that the first defendant had incurred expenditure on the field in November 2004 for weed treatment, in February 2005 for aeration, top dressing and fertilising, and in March 2005 for purchase of fertiliser. The current president of the defendant did not think that the team sheets for the games played on the field were kept beyond the end of the season.[4] A committee member at the time had advised that he had no recollection of the incident involving the claimant having been discussed at committee meetings. The man who did the mowing in 2005 said that he thought the field was irrigated with an automatic sprinkler system, but he had no involvement himself in that; he would usually mow the grass and do the line marking on a Thursday in preparation for the weekend fixtures.
[4]It is not clear whether this is a reference to the documents some of which were supposed to have been attached to the earlier report.
The third party also produced a number of documents pursuant to the pre‑litigation regime.[5] This includes five copies of sports field audit sheets which relate to this venue, although there appears to be on the sheets no identification of the date on which the audit was done. Three of them are marked in handwriting “2006 audit”, but they were different audits, since the content is different. All five indicate that the field was irrigated, though two of them say that the system was underground and three that it was above ground. In terms of the grass cover, one of the things considered was whether the field was free from bare areas, weeds, pests or diseases, and normal growth habit for the species. On a rating system from 1, which was supposed to indicate that the turf was totally free from bare areas, weed, pest or disease infestation and at normal growth, to 4, indicating that the turf has obvious bare areas, weed, pest or disease infestation adversely impacting use, the 2006 forms have ratings of 4, 3, and 4, while the other two have ratings 1 and 2. I do not know if these were pre 2006 or post 2006. Three of the reports recommended that the field be aerated and treated with top dressing and fertiliser; one added a recommendation for seeding, and one for weed treatment. The other two referred to other kinds of work not immediately relevant.
[5]Affidavit of Leddy para 9, Exhibit FJL4.
A letter dated 19 December 2005 from the president of the defendant was disclosed, seeking to have various works undertaken on the field including top dressing and fertilising, but this was well after the date of the incident. There were also a host of accounting documents and other administration documents relating to works undertaken, mostly at the end of 2005 or in 2006. There was a copy of an adjuster’s report dated 21 June 2006 which recorded that there was a capital works program audit of the sports field in 2002 when the turf was given a rating 1, the highest available score, although there was the additional comment that the field needed full maintenance and overseeding, and recommended aerating the top soil and fertilising. The adjuster stated that at the time of the incident the Council was not involved in any ongoing maintenance, mowing or work on the main field, though it did begin mowing in November 2005 at the request of the defendant. There had been no previous complaints or incidents reported to the Council for this venue.
There was work undertaken in February 2006 involving aeration of the main oval, herbicide spraying and the replacement of soil in the area near the goal mouth at each end, which areas were not relevant to the plaintiff’s injury. A number of photographs taken in 2006 show the field with what looks to be reasonable grass cover, although the grass does tend to clump. Attached to the report was also a copy of the lease current at the time. Under Clause 7.1 of the lease the tenant was required to keep the premises clean and tidy, free from weeds and pests and in good repair in all circumstances, fair wear and tear, inevitable accident and inherent structural defects not excepted. Under Clause 7.4 the tenant was required to comply with the five‑year maintenance plan contained in Schedule 2; this schedule set out the plan in very basic form, namely a requirement that the club spend not less than $5,000 a year on the maintenance of the premises.
There was a compulsory conference in accordance with s 36 of PIPA on 14 April 2008; the parties agreed to dispense with the requirement to sign a certificate of readiness prior to the conference. The plaintiff’s claim was not settled; the parties exchanged mandatory final offers.[6] On or about 8 May 2008 the plaintiff’s solicitors retained an expert consultant in the field of turf management, a Mr Cooper, to provide expert evidence in relation to the management, maintenance and upgrade of the soccer field.[7] A further letter of instruction was sent on 12 May 2008. The plaintiff’s limitation period was about to expire, and on 13 May 2008, before it did expire, the plaintiff’s solicitors commenced a proceeding in this court against the defendant, but not against the third party. Subsequently a third party notice was filed by the defendant in July 2008; the third party filed a notice of intention to defend in August 2008.
[6]Affidavit of Leddy paras 10, 11.
[7]Ibid Exhibit FJL5; that letter recorded that the plaintiff was pursuing the claim only against the defendant, “as the party responsible for the inspection and maintenance of the field, and for permitting the claimant’s team to play on the field.”
The defence of the defendant denied that it owed the plaintiff a duty of care, and further denied that it was in breach of any duty of care which was in fact owed. In particular the defendant pleaded that the condition of the main field was not such that it was a reasonable response to any risk to the plaintiff to cease to play soccer on the field, and that the reasonableness of the steps taken by the defendant were to be assessed bearing in mind that the field was to be used for amateur sport, that it was open for use by members of the public, and the extent of the resources, income, and other expenditure requirements of the defendant. In addition, causation was put in issue. In the third party’s defence to the third party notice, the third party denied that it owed a duty of care to the plaintiff, and alleged in the alternative that if there was such a duty owed the third party discharged that duty.
The report of the expert
The report of Mr Cooper was dated 8 June 2008 and received a couple of days later. He expressed the opinion that the condition of the field was most likely not appropriate for competitive soccer. He said that because the incident occurred in May, it suggested that the field would still be in much the same condition as at the start of the season, particularly given where the incident occurred. He commented that it was likely that the problem weeds were grasses which were difficult to kill selectively, though there were strategies available which could be used. However, he did not think an untrained grounds manager would generally have the knowledge to set such a program. He expressed the view that in his experience this was the role of the managing council.
Mr Cooper did not consider that the amount required to be spent by the club annually under the maintenance clause in the lease would be sufficient to maintain everything; he would expect $5,000 would be required for one playing field alone in products and services. The fact that work costing about $100,000 was carried out in February 2006 suggested that surface levels were unsuitable during the 2005 season.[8] He expressed the opinion that the most likely cause of the field condition was inadequate planning of renovation and maintenance in the lead up to the 2005 series, an inability to control problematic grassy weeds, an inability to establish and maintain a full turf cover, and an inability to maintain adequate surface levels.
[8]It occurs to me that most of the cost associated with this work would have been involved digging out and replacing the turf in the areas near the goal mouths, which were not relevant to the area where the plaintiff fell.
Mr Cooper said that if the condition of the field was inadequate then it followed that the measures taken by the club must also be inadequate, but that a sporting club would rarely have “the capability to set and maintain complex and multi‑layered renovation and maintenance plans. That is in my experience the domain of the managing council.” He also commented that from dealings with councils it is common practice to audit sports fields condition throughout the year, and the incident in question could have been avoided if someone sufficiently qualified had carried out this kind of auditing. Following receipt of this letter, the applicant’s solicitors sought a waiver of the limitation period from the third party, which was refused. This application was then filed on 11 November 2008.
Plaintiff’s submissions
The plaintiff’s submissions were that the material fact of a decisive character relied on for the extension of time was the information contained in the report of Mr Cooper received on 10 June 2008; specifically it was the identity and the extent of the duty of care owed by the Council, and its breach. More particularly, it was the responsibility of the Council to prepare and implement complex multi‑layered renovation and maintenance plans. It was submitted that the plaintiff, on legal advice that the material at the time did not indicate a sufficient basis for a case against the third party, had properly commenced proceedings only against the defendant. On the other hand, once Mr Cooper’s report became available, that had changed the position so that there was now evidence available on the basis of which it was appropriate to proceed against the third party. It was submitted that the information about the obligations reasonably to be expected of the Council was not within a knowledge or means or knowledge of the applicant until receipt of Mr Cooper’s report.
Third party’s submissions
On behalf of the third party it was submitted that the contents of Mr Cooper’s report were not facts, let alone material facts, about the circumstance of the case but merely an expression of Mr Cooper’s experience as to where he has found responsibility to lie in respect of other sporting fields. It was submitted that what Mr Cooper had said in his report about his experience of these matters did not meet any of the criteria in s 30(1)(a). Mr Cooper’s experience of the demarcation of such responsibility in other areas was of no probative value, and at most might be some indirect evidence going to the material fact of whether or not and to what extent the third party had responsibility for the field; but it was not a material fact in itself. It was also not a material fact of a decisive character, and it was within his means of knowledge at an earlier time. The matter had only come to his attention when it did because there had been a failure to obtain a timely report from an appropriate expert, such as Mr Cooper.
Once the respondents had denied liability in the pre‑litigation proceeding, it was appropriate for a plaintiff properly advised to obtain such expert evidence, and had that step been done the information contained in Mr Cooper’s report would presumably have been obtained in a more timely way, and either within the first two years after the cause of action arose, or at least more than 12 months before the application was made. That the plaintiff had identified the need to prove these matters at an early stage was shown by the content of the notice of claim, and the plaintiff was not entitled to an extension of the limitation period in circumstances where he has simply refrained from engaging in a timely process of gathering evidence. Under PIPA, investigations, including obtaining appropriate expert evidence, are supposed to be undertaken prior to the time of the compulsory conference. The proceeding was commenced at a time when the report of Mr Cooper had been commissioned, but not obtained, at a time when it was open to the plaintiff to proceed against the third party as well as against the defendant. The plaintiff, knowing that he did not have the benefit of Mr Cooper’s report, elected to proceed only against the defendant.
Analysis
It is important, for the purposes of an application under s 31(2), to identify the material fact relied on as being of a decisive character, and as not being within the means of knowledge of the applicant until, or until after, a particular date. The material fact relied on was the identity and extent of the duty of care owed by the Council, and its breach, in particular, the responsibility of the Council to prepare and implement complex multi‑layered renovation and maintenance plans. The immediate difficulty that occurs to me with this formulation of the matter is that s 31 is concerned with a material fact, which whatever else it may mean is confined to a question of fact. It does not extend to matters of law,[9] or to matters of opinion of experts. All of the matters referred to in s 30(1)(a) are matters of fact. Whether a duty of care exists, and if so its extent and content, are questions of law.[10]
[9]Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245‑6 per Wilson J, 249‑50 per Deane J, 254 per Dawson J; as to mixed questions of law and fact, see Randel v Brisbane City Council [1984] 2 Qd R 276 at 279‑80 per McPherson J.
[10]Fleming “The Law of Torts” (9th edition 1998) p 150. I recognise that there can be facts relevant to the existence of a duty, but none of these were identified in submissions, or obvious from the report.
Whether it was the responsibility of the third party to prepare and implement multi‑layered renovation and maintenance plans, in the sense of whether the third party had a duty to do that, was therefore a question of law, not a question of fact; the relevant question of fact was whether the third party did this. To the extent that the plaintiff had any information on that subject, it was derived from the disclosure of documentation by the third party during the PIPA process, not as a result of the receipt of the report of Mr Cooper. In so far as Mr Cooper expressed an opinion as to the extent of the responsibility of the third party, that in itself was not a matter of fact; it was Mr Cooper’s opinion in relation to something which was really a question of law, not a question of fact. It was therefore not even a fact in the sense of the fact that there was evidence available to the plaintiff to show that a particular factual matter, proof of which might otherwise have been doubtful, could be proved.[11] The first difficulty for the plaintiff in the present case, therefore, is that the plaintiff has not identified any material fact as the basis of the application.
[11]As to the existence of evidence as a material fact, see Dick v University of Queensland [2000] 2 Qd R 476 at [5], [6] per Pincus JA.
What Mr Cooper’s report actually showed was that in his opinion additional maintenance work ought to have been undertaken by the Council prior to May 2005 in order to improve the quality of the playing surface of the field. This was not evidence of the actual state of the field, a matter about which Mr Cooper had only the information provided to him; accordingly, in so far as he expressed an opinion that the field was in such a state that something ought to have been done to it, that was in substance an expression of his opinion as to the scope and content of the duty on the third party. The essence of the report was simply Mr Cooper’s opinion that primary responsibility for maintenance of the field lay with the third party. No new factual basis for this was put forward.
That there was a problem with grassy weeds which tended to clump on the site was not a matter which was revealed by Mr Cooper’s opinion; rather, he expressed an opinion as to things that could have been done about the weed problem, and expressed an opinion as to whose responsibility that was. The latter involved the question of who had the duty to do something, which is a question of law. The former is potentially a matter of material fact, in the sense that the existence of a method of remedying a problem with clumpy grass on the field is a question of fact,[12] although that particular matter was not identified by counsel for the plaintiff as the material fact relied on. In any case, what was disclosed was obvious enough, and there was no evidence it was not previously within the means of knowledge of the plaintiff.
[12]cf Do Carmo (supra) at p 255 per Dawson J.
That there were clumps of grass on the field was simply a matter of observation,[13] and would therefore have been within the actual knowledge of the plaintiff at the time of the incident, since he was on the field at the time and in a position to observe this. He apparently maintains that he observed the presence of the clump of grass on which he claims to have fallen, albeit after he had fallen, so he was in a position to be aware of the actual state of the field then, if not prior to his having fallen in the course of the game.
[13]Just as the existence of clumps in June 2006 is a matter of observation from the photographs.
Mr Cooper’s report also referred to irregularities in the playing surface, but the ones referred to in the third party’s documents were related to particular areas separate from the area where the plaintiff fell, and not related to clumps of grass or areas of loss of grass cover, so it is not apparent to me how Mr Cooper’s comments in relation to those matters are material at all. He also referred to the apparent absence of any maintenance work undertaken on this field by the third party prior to the end of 2005, but again to the extent that this is a matter of fact it was derived from the material disclosed rather than the opinion of Mr Cooper.
Finally, Mr Cooper expressed the opinion that there ought to have been regular auditing of the sports field condition by the third party prior to May 2005. The evidence suggests that there were regular audits at least from 2006, but perhaps not earlier. His report did not establish the absence of earlier audits; any information he had on that subject was derived by him from the documents forwarded by the plaintiff’s solicitors. What was new or additional from the point of view of the plaintiff in Mr Cooper’s report was Mr Cooper’s opinion that there ought to have been regular audits in the period prior to May 2005. That, however, could not amount to a material fact, whether or not of a decisive character. In so far as it involved the question of whether there was a duty on the third party to undertake such auditing, that was a question of law.
In so far as it involved the identification of regular audits as something which the third party could have done prior to May 2005, assuming that was a material fact, it was a matter within the actual knowledge of the plaintiff at the time when the Part 1 notice of claim was given on 21 April 2006, because paragraph 18 of that notice identified as one of the reasons why, relevantly, the third party had caused the incident, as that it had failed “to implement any or any reasonable system of inspection of the fields to ensure that their condition did not pose a foreseeable risk of injury to the players.” It follows that Mr Cooper’s report did not reveal to the plaintiff either that there had not been any system of auditing in place prior to May 2005, or that this was something which could have been done by the Council. At best therefore it was simply an expression of Mr Cooper’s opinion as to the content of the duty of care, which is a matter of law.
Means of knowledge of the plaintiff
It follows therefore that in my opinion the plaintiff has not shown that there was any material fact which first came within his actual knowledge at the time of the receipt of Mr Cooper’s report. It follows that the requirements of s 31(2)(a) necessarily cannot be made out. However, in case a different view may be taken elsewhere, I should also deal with the question of whether the plaintiff has shown that any material fact contained in or disclosed by Mr Cooper’s report, assuming it to be decisive, was a matter not within the means of knowledge of the plaintiff prior to the time when the report was received. In my opinion he has not.
The question of whether something is within the means of knowledge of an applicant depends on whether the person did not know the fact at the time, and “as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.”[14] Assuming that a material fact can be identified from Mr Cooper’s report which was not in fact known to the plaintiff prior to the receipt of that report, there is no reason to think that that fact was not able to be found out earlier by him, if a report had been obtained from Mr Cooper (or presumably some equivalent expert) at an earlier time. The timing of the discovery of any material fact disclosed by Mr Cooper’s report in the present case depended upon the time when the report was received, which was essentially a product of the time when it was commissioned; Mr Cooper took only about one month to prepare and forward his report.
[14]Section 30(1)(c).
The question is whether the plaintiff had taken all reasonable steps to find out any such fact before that time. Whether a person has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of that person: NF v State of Queensland [2005] QCA 110 at [29]. In other words, would it have been reasonable to expect the plaintiff to take appropriate advice at an earlier time: Healy v Femdale Pty Ltd [1993] QCA 210 at p 5. In the present case, it may well not have been appropriate for the plaintiff to have been concerned to investigate matters such as the opinion of an expert like Mr Cooper prior to the time when he had consulted solicitors, and indeed prior to the time when the respondents to the notice of claim had denied liability.
Once the position had been reached where there was a denial of liability, it became a matter for the plaintiff to decide whether or not to take the claim further. If he did decide to do so, that involved first completing the pre‑litigation procedures in PIPA. That statute prescribes a process in which parties are expected to investigate matters to the extent that they are going to, disclose relevant information to the other parties, and then make a genuine and fully informed attempt to settle the matter without resort to litigation at a compulsory conference.[15] The statute proceeds on the basis that ordinarily at least any investigation of the matter is to be undertaken prior to the holding of the compulsory conference; that is shown for example by the fact that ordinarily a plaintiff even if successful cannot recover the costs associated with any investigations undertaken after the compulsory conference was held.[16]
[15]See, as to analogous provisions in the Motor Accident Insurance Act 1994, Gitsham v Suncorp Metway Insurance Ltd [2003] 2 Qd R 251 at [16]-[21], esp. [21].
[16]PIPA s 56(5).
In those circumstances, it seems to me that it was objectively reasonable for this particular plaintiff, in the circumstances in which he found himself, to have obtained expert opinion such as that from Mr Cooper prior to the holding of the compulsory conference. Indeed, it seems to me that the obvious time to obtain that opinion was after all of the material that was to be disclosed by the defendant and the third party under the PIPA process was available. The test laid down by s 30(1)(c)(ii) is an objective test, though applied to the particular plaintiff in the circumstances in which he found himself. One aspect of it, however, is whether the plaintiff, who had engaged solicitors, had acted reasonably in the light of the advice they have given.[17] The fact that the solicitors ought to have obtained the opinion earlier does not mean that its contents were within the means of knowledge of the plaintiff earlier. That depends on whether the plaintiff acted reasonably in all the circumstances, including his personal position, and the advice given him by his solicitors. It may be that they gave no advice to obtain expert opinion earlier than they did,[18] or that the plaintiff’s failure to obtain it earlier was due to impecuniosity on his part.[19] Unfortunately, these are matters not touched upon in the affidavit material read before me. The plaintiff has the onus of establishing that the relevant material fact was not within his means of knowledge at the relevant time, and I do not consider that this material was sufficient to discharge that onus.
[17]Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 at 431; Randel v Brisbane City Council [1984] 2 Qd R 276 at 280, per McPherson J, 285 per Thomas J.
[18]In which case the fact that I think such advice ought to have been given is irrelevant.
[19]A relevant consideration: Randel (supra) at p 285.
In my opinion once all of the material which was to be relied upon in support of the expert’s advice was available it was reasonable to obtain the expert’s opinion, and it has not been shown that any material fact disclosed by Mr Cooper’s opinion was not within the means of knowledge of the plaintiff once that point had been reached. It would be appropriate to allow a reasonable time for the advice to be given, for the material necessary to brief Mr Cooper to be collected, and for Mr Cooper’s advice to be prepared,[20] but in the light of what happened and in the light of the evidence, that ought to have been available two or perhaps at most three months after the time when all of the relevant material had been made available. That would certainly have been prior to the holding of the compulsory conference.
[20]Dick v University of Queensland [2000] 2 Qd R 476 at [35]-[36] per Thomas JA.
Another difficulty for the plaintiff is that there is no evidence before me by which that time can be fixed. The evidence of the plaintiff’s solicitor identified the material which was disclosed by the other parties under PIPA but did not say when that occurred. For all I know it could have occurred in 2006, or at least prior to a point three months before a time which is more than 12 months ago. Accordingly, the plaintiff has not shown that, assuming Mr Cooper’s report did contain a material fact of a decisive character, it was not within the means of knowledge of the plaintiff until after the commencement of the year last preceding the expiration of the period of limitation, and after a date such that an extension of time of not more than 12 months would now be of assistance to the plaintiff.
It follows that the application must fail.[21] In those circumstances it is not necessary for me to consider how the discretion to extend the limitation period should be exercised, if the discretion arose. In relation to that, the defendant has not shown any particular prejudice, although it is necessarily going to be difficult for the defendant to defend a claim of this nature if there is not going to be available to it any timely evidence about the actual state of the field at the time when the plaintiff fell, or as to what could reasonably have been observed by what the court would regard as a reasonable audit of the field within what the court regarded as an appropriate period of time prior to the date of the plaintiff’s injury, and whether it would have indicated that any particular remedial work ought to have been undertaken on this field. On the other hand, the notice of claim was first delivered less than 12 months after the date of the incident, so that the opportunity arose for the third party to start gathering evidence at a relatively early time, and no specific prejudice associated with the delay has been relied on by the third party.
[21]If the only deficiency were as to proof of the absence of means of knowledge, I would have given the plaintiff the opportunity to put on more material. But there is no point in doing so when no material fact was disclosed.
There is also the consideration that the plaintiff, and perhaps more importantly the plaintiff’s legal advisers, obviously identified the third party as a potential defendant at the time when the notice of claim was originally given, and the third party participated in the PIPA process. In so far as the plaintiff now seeks to pursue a claim against the third party, that claim is not different in substance from the claim advanced in the notice of claim, and relies on essentially the omissions identified in that notice of claim. In those circumstances, what has happened here in substance is that the plaintiff, with the benefit of all the information obtained through the PIPA process, elected to pursue a claim only against the present defendant, and not against the third party, and has now changed his mind. The significance of this feature, however, cannot really be properly assessed by me in circumstances where I do not consider that Mr Cooper’s report discloses any relevant material fact, and when I consider that a report of that nature ought reasonably to have been obtained at an earlier stage. In those circumstances, it is not appropriate for me to give an indication, on a precautionary basis, as to how I would have exercised the discretion had it arisen.
It follows therefore, that the application is dismissed with costs.
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