Blythe v The State of Western Australia
[2007] WADC 175
•8 OCTOBER 2007
BLYTHE -v- THE STATE OF WESTERN AUSTRALIA & ANOR [2007] WADC 175
| Link to Appeal : | [2008] WASCA 10 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 175 | |
| Case No: | CIVO:93/2007 | 5 SEPTEMBER 2007 | |
| Coram: | EATON DCJ | 8/10/07 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | JAIH SCOTT BLYTHE THE STATE OF WESTERN AUSTRALIA MINISTER FOR EDUCATION |
Catchwords: | Limitations Action for personal injury Delay occasioned by reasonable cause Prejudice Exercise of discretion |
Legislation: | Crown Suits Act 1947 Limitation Act 1935 Limitation Act 2005 |
Case References: | Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Leech v Melbourne & Metropolitan Tramways Board [1958] VR 398 Matheson v Commissioner of Main Roads (2001) 25 WAR 269 Perry v City of Armadale [2004] WASC 167 Posner v Roberts [1986] WAR 1 Quinlivan v Portland Harbour Trust [1963] VR 25 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
First Respondent
MINISTER FOR EDUCATION
Second Respondent
Catchwords:
Limitations - Action for personal injury - Delay occasioned by reasonable cause - Prejudice - Exercise of discretion
Legislation:
Crown Suits Act 1947
Limitation Act 1935
Limitation Act 2005
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Applicant : Mr D M Bruns
First Respondent : Ms B A Mangan
Second Respondent : Ms B A Mangan
Solicitors:
Applicant : Feinauer Commercial Lawyers
First Respondent : Lavan Legal
Second Respondent : Lavan Legal
Case(s) referred to in judgment(s):
Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Leech v Melbourne & Metropolitan Tramways Board [1958] VR 398
Matheson v Commissioner of Main Roads (2001) 25 WAR 269
Perry v City of Armadale [2004] WASC 167
Posner v Roberts [1986] WAR 1
Quinlivan v Portland Harbour Trust [1963] VR 25
(Page 3)
1 EATON DCJ: Jaih Scott Blythe was born on 11 July 1987 and is now 20 years old. In 2001 he was a student at Swan View Senior High School where he was a member of the talented and gifted students group (TAGS). Members of that group participated in a school excursion on Friday 14 December 2001. Upon return to the school the group waited at the grassed area at the front of the school to be collected by parents. As they waited the group was approached by two students from the school who were not members of TAGS. Their names were Anthony Wilson and Kieran Lucy. For some reason rocks were thrown by Wilson and Lucy at members of the group and by members of the group, including Jaih Blythe, at Wilson and Lucy. Jaih Blythe stopped throwing rocks and bent to pick up his school bag. As he did he was struck in the right eye by a rock thrown by Wilson. Teachers came to his assistance. They were Ms Anning and Ms Delario. They had not intervened to prevent the rock-throwing. He suffered an injury to his right eye.
2 On 25 July 2007 Jaih Blythe applied to this Court by originating summons for leave to commence an action against the State of Western Australia and the Minister for Education to allege negligence on their part giving rise to the injury suffered by him on 14 December 2001. He does so pursuant to s 47A of the Limitation Act 1935 and s 6 of the Crown Suits Act 1947. The foregoing account of the material events of 14 December 2001 is derived from his affidavit sworn in support of his application on 19 July 2007.
3 Section 47A of the Limitation Act 1935 provides that no action shall be brought against any person for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect of default in the execution of the Act, duty or authority, unless:
"(a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b) the action is commenced before the expiration of one year from the date on which the cause of action accrued."
(Page 4)
4 Section 47A(3) provides:
"(a) … application may be made to the Court which would, but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant.
(b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it think it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose."
6 Counsel before me were agreed that the issues to be addressed are the same in the case of each Act. Those issues are:
(1) Was the delay in bringing the action occasioned by mistake or any other reasonable cause?
(2) Alternatively, was it established that the prospective defendant was not materially prejudiced in its defence or otherwise by the delay?
(3) If either of the above preconditions for the exercise of the Court's discretion are established would it be just to grant leave to bring the action with or without conditions?
7 The authorities make it clear that the whole period up to the point where it was sought to bring the action and the delay in doing so is to be considered. A pre-condition for the exercise of the Court's discretion to grant leave may be that when the causes of that delay are examined they may be characterised as mistake or any other reasonable cause. Mistake, of itself, qualifies as a reasonable cause. (Matheson v Commissioner of
(Page 5)
- Main Roads (2001) 25 WAR 269 per Murray J at [47]). It is clear also that the three circumstances referred to: delay in bringing the action being occasioned by mistake, the delay in bringing the action being occasioned by any other reasonable cause and the absence of material prejudice to the proposed defendant in its defence by reason of the delay are disjunctive. If any one of those conditions is satisfied then the Court has a discretion to grant leave if it is just in the circumstances to do so. (Perry v City of Armadale [2004] WASC 167 per Le Miere J at [19]).
8 The applicant says that his parents, John and Michelle Blythe, engaged Feinauer & Associates, Solicitors, on 7 February 2002 concerning his injury. It appears that Ms Tsang, of Feinauer & Associates, wrote a letter to Dr S W Scargill, ophthalmic surgeon of Midland, on 7 March 2002 requesting a report as to the applicant's injury. Dr Scargill replied on 14 March 2002. In that report he confirmed that the applicant was in receipt of medication to help constrict his pupil and to cut down glare. It would also improve his visual acuity. Dr Scargill recommended "follow-up" at six monthly intervals for a couple of years, annually for five years and then every two years for the rest of his life. He thought that the short term prognosis so far as visual function was concerned was excellent but that it was prudent to wait for about six months to enable the injury to settle. Importantly he said:
"In regards to the medium and long term, when an eye has been injured to this extent, it does not grow old as gracefully as the other organ and he is at risk of developing secondary glaucoma, retinal detachment and cataract. I find it impossible to give you any accurate figures as to how any of these may occur."
9 I deduce from the foregoing that the applicant had, on 14 December 2001, suffered a substantial injury to his right eye which would result in regular follow-ups for the rest of his life and possible further adverse consequences.
10 The applicant said, at par 27 of his affidavit sworn 19 July 2007 that he was advised at various stages by his solicitors that the limitation period for his claim expired on 11 July 2006, his 19th birthday. That was based upon the proposition, apparently, that the limitation period for a claim against a public authority was 12 months from the date on which the cause of action accrued and that, as he was a minor, no cause of action would accrue until his 18th birthday.
(Page 6)
11 It seems that the solicitors engaged by the applicant's parents briefed a barrister to provide an opinion on the applicant's claim in about December 2002. By letter of 20 January 2002 that barrister declined the brief. A further barrister was briefed in about July 2003. The response from that barrister being unsatisfactory, a third barrister was engaged in about June 2005. That barrister provided an opinion as to liability and quantum in September 2005 and gave further advice as to appropriate notice to the defendants in January 2006.
12 By letter of 28 July 2006 the solicitors engaged by the applicant's parents wrote to the Chief Executive Officer of the Department of Education giving notice on behalf of the applicant under s 47A(1)(a) of the Limitation Act 1935 and seeking consent under s 47A(2) of that Act to initiate proceedings against the Minister for Education and the Chief Executive Officer of the Department of Education. The letter gave an account of the incident on 14 December 2001 indicating that throughout the excursion two teachers, Ms Anning and Ms Delario, were supervising. The letter suggested that the teachers involved were negligent in that they failed to notice the students engaging in a potentially dangerous endeavour over a protracted period of time and that, in consequence, they failed to intervene to stop the endeavour which eventually resulted in injury suffered by the applicant. The letter also suggested that the school authority was vicariously liable for the negligence of its teachers employed, as alleged, in the specific task of supervising the students at the last moments of the school day.
13 Counsel for the applicant conceded that there was no compliance with either s 47A of the Limitation Act 1935 or s 6 of the Crown Suits Act 1947. He also conceded that ignorance of the law is not a mistake for the purposes of those Acts (Leech v Melbourne & Metropolitan Tramways Board [1958] VR 398) but submits that ignorance of the statutory requirements may, in all the circumstances, constitute "reasonable cause". (Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114). Counsel for the applicant submits that both the failure to give notice and the delay in taking proceedings were occasioned by reasonable cause within the meaning of those Acts.
14 It is clear that the applicant was not well served by the solicitors engaged by his parents and by at least one member of the independent bar. Be that as it may, I must now consider whether the delay in bringing the action was occasioned by mistake or any other reasonable cause. The length of the delay is significant in this case. The event complained of occurred on 14 December 2001. The applicant's parents acted quickly in
(Page 7)
- appointing solicitors who wrote to the ophthalmic surgeon requesting a report by letter of 7 March 2002. It indicated that the solicitors acted for the applicant's parents with respect to a "personal injury matter" concerning the applicant.
15 As mentioned, by letter of 28 July 2006 the applicant's parents' solicitors wrote to the Chief Executive Officer of the Department of Education purporting to provide notice under s 47A(1)(a) of the Limitation Act 1935 of circumstances which would give rise to a claim. The letter sought consent under s 47A(2) of the Act to initiate proceedings against the Minister for Education and the Chief Executive Officer of the Department. The letter set out the facts relied upon. That was the first notice to the respondent of a proposed action arising out of the events at Swan View Senior High School on 14 December 2001. Although the letter purported to give notice pursuant to s 47A(1)(a) of the Limitation Act 1935 it clearly was not notice given as soon as practicable after the cause of action had accrued and was not in compliance with that section at all. That much was conceded readily by Mr Bruns, counsel for the applicant, on the hearing of the application.
16 Clearly, the initial delay was brought about by the erroneous advice provided by the solicitors instructed by the applicant's parents as to the statutory regime which applied with respect to the bringing of an action against a minister of the State or a State government instrumentality or department. The applicant relies upon Posner v Roberts [1986] WAR 1 that being a judgment of Master Staples who, referring to Quinlivan v Portland Harbour Trust [1963] VR 25 held that a reasonable cause in the context of the Limitation Act 1935 was a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable person. The parents of the applicant acted quickly in instructing solicitors. In doing so they acted reasonably. They then failed to cause notice to be given pursuant to the provisions of the Limitation Act 1935 against the prospective defendant by reason of the erroneous advice given to them. That advice was to the effect that the ordinary limitation period for a claim against a public authority was one year from the date upon which the cause of action accrued and that, the applicant being a minor, the cause of action would not accrue until his 18th birthday. It seems that the applicant was under the misapprehension that he had until his 19th birthday within which to commence an action arising out of the events of 14 December 2001. That advice evidenced an extraordinary mistake on the part of the solicitors but it was, in my view, reasonable to rely upon that advice.
(Page 8)
17 After further delays and attempts to brief several barristers, counsel's advice as to the correct position under the provisions of the Limitation Act 1935 was provided in January 2006. There was, in my view, then a significant delay between the provision of that advice and the writing of the letter of 28 July 2006, referred to earlier.
18 The respondents point to the early provision of expert medical opinion as to the significant eye injury suffered by the applicant. It does appear, however, that the applicant, or more particularly his parents, were content to wait, monitoring the progress of the injury, rather than rushing to litigation; in the light of the legal advice received by them and the tenor of the advice given by Mr Scargill, the ophthalmic surgeon, to the effect that there was an excellent short term prognosis but that there were longer term risks of developing secondary glaucoma, retinal detachment and cataract. The surgeon was unable to give any accurate figures as to the likelihood of those more serious effects developing. Suffice to say that the injury, although with an excellent short term prognosis, had not settled. I conclude, in all the circumstances, that it was reasonable, in the light of the legal advice, for the parents to wait as they did.
19 The respondents complain, not unexpectedly, about the magnitude of the delay in this case. It was certainly substantial but it was, unfortunately, founded upon erroneous legal advice. Very clearly, the attempts by the applicant's solicitors to obtain counsel's opinion seem less than satisfactory as was the time that it took for notice to be given by those solicitors in the light of correct advice from counsel. Those failures should not, however, in my opinion, be attributed to the applicant or his parents.
20 I must have regard to the question of material prejudice to the respondents occasioned by the delay. The respondents filed four affidavits in response to the application. One of those is from Barbara Jorden, an investigator, the affidavit having been sworn on 28 August 2007. Ms Jorden received instructions from RiskCover on 21 August 2006 to undertake factual investigation on behalf of the Department of Education into the proposed claim. Ms Jorden said that in the course of her investigation she spoke with the present principal of Swan View Senior High School, the principal of the school at the time of the injury, four teachers who were involved with the excursion undertaken on that day and a former student who took part in that excursion. Of the four teachers two were, at the time of interview, still teaching at Swan View Senior High School. A third was living interstate and the fourth, although resident in Perth, had left the Department. It seems that the current
(Page 9)
- principal of Swan View Senior High School caused a search to be conducted of the school records. The only documents located were a formal notification to the District Education Office of the suspension from school of Kieran Lucy and Anthony Wilson, both of whom were suspended from school, the former for one day and the latter for two days. The notice in respect of the former contained the following notation:
"Kieran was involved in a rock throwing incident at the end of school where he is alleged to have used a 'glove gun' to ping a rock at another student. He had already been warned earlier in the week about a similar incident. A student's eye was damaged in the incident."
"Anthony became involved in a rock throwing incident with another student. A rock thrown by Anthony ended up damaging the eye of another student. This is irresponsible and dangerous behaviour."
22 The staff contact referred to in the document with respect to the former was a Mr Pollock and with respect to the latter was Ms D'lario. No other document was located relating to the events of 14 December 2001 giving rise to the applicant's injury. The former principal had no recollection of those events or the incident. All of the teachers spoken to by Ms Jorden could recall the general circumstances of the incident. None saw the incident occur or were aware of the exact circumstances of it. One teacher recalled taking the applicant to hospital and writing an incident report for the school administration afterwards. She did not keep a copy of that report. Enquiries with the present principal as to that report proved fruitless. None of the teachers spoken to could remember the number of students who participated in the excursion or the number of teachers engaged in supervision of those students. There was, according to Ms Jorden, some discrepancy in the teachers' recollections as to the period between the return of the students from the excursion to the school premises and the end of the school day. There is no precise recollection of the time that the incident occurred.
23 Ms Jorden deposed to having spoken to a student who had taken part in the excursion. That student recalled the applicant being struck by a rock thrown by another student and the general circumstances in which the applicant was injured. He or she was unable to provide precise details of the incident due to the passage of the years. He or she was unable to
(Page 10)
- recall the time of the arrival of the students at school from the excursion, the time of the injury or the time of the school bell indicating the end of the school day.
24 In written submissions counsel for the applicant has objected to pars 18 and 19 of Ms Jorden's affidavit on the grounds of hearsay. I regard those paragraphs, as with the remainder of her affidavit, as statements of information and belief. I accept that she has failed to identify the source of that information.
25 The loss of precise recollection, the loss of documents that probably did exist (other than the two notices of suspension) and the loss of the ability to know precisely how many students were involved in the excursion, how many teachers were involved in supervision, all of their identities and precise times is hardly surprising given the passage of almost five years. By comparison, the applicant, whose parents instructed solicitors promptly and prudently, would have a detailed written record available to him of the relevant events.
26 Counsel for the applicant acknowledged that the onus is on the prospective plaintiff to demonstrate that there is no material prejudice. It is true that, in his affidavit, he deposed to their being two teachers supervising the group when the stone throwing broke out. He referred to Ms Anning and Ms Delario, who came to his assistance after he had been struck. It is true that Ms Jorden, in her affidavit, fails to identify any of those persons spoken to. It is not clear, as pointed out by counsel for the applicant, whether Ms Delario or Ms Anning were interviewed. Mr Bruns submitted that delay has to be considered in the context of what would have happened if notice had been given within the required time and suggested that, in this case, if notice had been given within the required time there would have been no difference in the respondents' state of knowledge. That is a submission that I do not accept. The fact is that almost five years passed before notice was given and only two documents have been located relating to the incident. In my view, there probably would have been others, including incident reports, provided by the teachers involved at the time. If notice had been given in accordance with the statutory requirements the recollections of those involved would have been more acute than they are now. Such seems to be obvious. In my view the prejudice to the respondents is significant and palpable.
27 Having regard to the foregoing I take the view that the delay in bringing the action was occasioned by reasonable cause. I also take the view that the respondents are materially prejudiced in their defence by the
(Page 11)
- delay. I must now consider whether it would be just to grant leave to bring the action with or without conditions.
28 The respondents rely upon the authority of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Ms Mangan, counsel for the respondents, quoted at length from that authority at the hearing of the application. That case involved an action by a Mrs Taylor who brought proceedings under the Limitation of Actions Act 1974 (Qld) for an extension of time within which to proceed against Brisbane South Regional Hospital. Her proposed action rested upon her alleged conversation with a Dr Chang on 29 May 1979. In January 1994, on the advice of a friend, Mrs Taylor obtained the hospital records concerning her treatment pursuant to a statute entitling her to access. According to her, on the advice of Dr Chang, she had undergone a hysterectomy which, she said, she was given to understand was essential. Her claim was that, had she been fully informed about the reasons for, the consequences of and the effects of the operation as well as the alternative treatments available she would not have elected to undergo the hysterectomy. She did so and was denied her wish to have a large family and suffered continuing abdominal pain which, she said, was linked to the surgery.
29 Upon being given notice of Mrs Taylor's claim a solicitor for Brisbane South Regional Hospital ascertained that Dr Chang was then resident in Hong Kong. Unsuccessful attempts were made to contact him. Conversations with another medical practitioner mentioned in the hospital notes revealed that, without the benefit of the notes, he was unable to recall anything of the incident alleged by Mrs Taylor.
30 Mrs Taylor applied to the District Court in Queensland for an extension of time within which to bring her action. The judge in that court dismissed her application. She appealed to the Queensland Court of Appeal. The Court of Appeal extended the limitation period to enable the bringing of the action. Brisbane Regional Hospital applied for and was granted special leave to appeal to the High Court.
31 It is true that the length of the delay in that case, some 15 years, was considerably greater than in the matter before me. Crucially, in that case, Dr Chang could not be contacted. The High Court upheld the appeal and set aside the order of the Queensland Court of Appeal.
32 Putting the obvious factual differences to one side, counsel for the respondents before me suggested that the statements of principle in that case are apposite. In his judgment McHugh J said (at p 551) that the
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- discretion to extend time in such circumstances must be exercised in the context of the rationales for the existence of limitation periods. The enactment of time limitations, he said, have been driven by the general perception that where there is delay the whole quality of justice deteriorates and sometimes that deterioration in quality is palpable where a crucial witness is dead or an important document has been destroyed. His Honour was of the view that an applicant for extension must show that justice will be best served by excepting the particular proceedings from the general prohibition imposed. In that context, he said, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved.
33 Applying principle to the case before him he said (at p 554):
"In the present case, the learned District Court Judge held that the present respondent was 'placed in a position of serious prejudice having regard to the lapse of time which has occurred'. That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit."
34 Dawson J, expressing agreement with McHugh J, took the view that the relevant section of the Queensland Act did not confer upon an applicant for an extension of time a presumptive right to an order once the two conditions laid down by that section were satisfied. He said (at p 544):
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- "The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."
35 The four rationales referred to by McHugh J for the enactment of limitation periods are, firstly, that as time goes by, relevant evidence is likely to be lost, secondly, that it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed, thirdly, that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and finally, that the public interest requires that disputes be settled as quickly as possible.
36 The general limitation for the commencement of an action for damages for personal injury was six years. In the applicant's case, that period expires on 14 December 2007. Section 47A of the Limitation Act 1935 has been repealed although it still is applicable to the applicant's situation having regard to the time when the cause of action accrued. Under the Limitation Act 2005 an action for damages relating to personal injury to a person cannot be commenced if three years has elapsed since the cause of action accrued but if the person was under the age of 15 years when the cause of action accrued to him or her an action on that cause of action cannot be commenced if six years have elapsed since the cause of action accrued. It follows that under the new legislation the applicant would have had six years within which to commence proceedings for the personal injury suffered by him if that legislation were in effect at the time. It was not.
37 In her written submissions counsel for the respondents makes the point that the proposed plaintiff has not filed a proposed statement of claim setting out the nature of the cause of action. I infer from what is known of the circumstances of the events giving rise to the injury that the claim, broadly speaking, will allege negligence on the part of the
(Page 14)
- respondents in that its employees, servants or agents had a duty to properly supervise the students, including the applicant, that they failed in the execution of that duty and, in particular, failed to take steps to intervene in the stone-throwing when it broke out in time to prevent the injury to the plaintiff. The existence of the duty and its content may well depend upon precisely when and where the relevant events occurred in the context of the school day. The issue of the performance of the duty and whether that performance fell below appropriate standards will depend upon evidence as to the number of students involved, the number of teachers engaged in supervision, the time of the day when the incident occurred, the circumstances of the incident itself, including its duration, the number of students involved and all of the surrounding circumstances that might have a bearing on what the respondents' employees, servants or agents were doing at material times, their ability to respond to the situation which gave rise to the applicant's injury and the extent of that response. Had there been compliance with the statutory regime stipulated by the Limitations Act 1935 the recollections of those involved might well have been more acute than they presently are and might well have been augmented by contemporary documentation which no longer exists.
38 The net effect over the effluxion of time and the failure to give notice in compliance with the statutory regime is that there can no longer be, in my judgment, a fair trial. While the plaintiff will be well prepared for such a trial having, through the prudent actions of his parents, acted quickly with a view to a future personal injuries action, the position of the respondents is, in my view, seriously and probably irretrievably damaged. I conclude that, notwithstanding that the delay in bringing the action was, indeed, occasioned by reasonable cause it would not be just to grant leave to bring the action having regard to the effluxion of time and the impact of that circumstance upon the ability of the respondents to deal with the claim belatedly made against them. The application is therefore dismissed.
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