Chantrill v Naum

[2009] NSWDC 206

CITATION:	Chantrill v Naum [2009] NSWDC 206
HEARING DATE(S):	29 June 2009
EX TEMPORE JUDGMENT DATE:	30 June 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) The application is dismissed. 2) The plaintiff is to pay the defendants’ costs of the application. 3) The exhibits are returned. 4) The affidavits are retained.
CATCHWORDS:	LIMINATIONS - Unsatisfactory explanation for 7 year delay in commencement of proceedings - Prejudice in circumstances of emphatic denial by defendants of plaintiffs version of events leading to injury
LEGISLATION CITED:	Civil Liability Act 2002 Limitation Act 1969
PARTIES:	Pauline Chantrill (Plaintiff) Komninos Naum (First Defendant) Elizabeth Yosifidis (Second Defendant) Komjoe Pty Limited (Third Defendant)
FILE NUMBER(S):	5916/08
COUNSEL:	M Aldridge SC and Mr Fraser (for the Plaintiff) Mr M. Vesper (for the First, Second and Third Defendants)
SOLICITORS:	Maxwell Berghouse & Ives (for the Plaintiff) Sparke Helmore (for the First, Second and Third Defendants)

JUDGMENT
1 The plaintiff, Pauline Chantrill, applied for an extension of time within which to bring an action for damages for personal injuries that she claimed she suffered on 20 November 2001. The defendants were involved in a newsagency business that was conducted on premises in Lane Cove where the injuries were allegedly suffered. The application was brought under s 60C of the Limitation Act 1969 which requires that the court consider whether it would be just and reasonable to extend time to allow the plaintiff to commence her proceedings and in reaching its decision, to consider the criteria set out in s 60E.

2 In this case there was evidence to support the plaintiff’s claims of injury to her neck and left shoulder. There was also unchallenged medical evidence to indicate that the extent of the injury and her income loss were both, if accepted, significant. The issues debated on the application related to the length of the delay, the reasons given for that delay and prejudice to the defendants as a result of the delay.

3 The factual circumstances giving rise to the claim were that the plaintiff at the time of her alleged injury was employed as a sales representative for a greetings card manufacturer operating under the name “For Arts Sake”. Her employment required her to call upon retail outlets to check stock, take orders and if warranted, collect unsold stock.

4 The plaintiff said that on 20 November 2001 she called at the Lane Cove newsagency. She provided evidence of a credit note issued on that date and an entry in her diary to confirm that this was the date of her injury. On that date the business was operated by the third defendant, Komjoe Pty Limited, the directors of which were Mr Naum and Ms Elizabeth Yosevedis. They were the first and second defendants respectively. The company employed Mr Naum and his wife Ms Julia Naum, Ms Elizabeth Yosevedis and her husband.

5 The plaintiff alleged that when she attended at the newsagency on 20 November 2001, Mr Komninos stood upon a three metre high stool to retrieve a box of cards that he intended to return to her employer. He lost his balance and fell. The plaintiff said she put out her left arm to break his fall and in so doing, she suffered her injury.

6 The plaintiff’s explanation for the delay included evidence that she instructed Malouf Lawyers in June 2002. On 30 September 2004 about six weeks prior to the expiration of the limitation period she was informed by the solicitor acting for her, Mr Watts, that the limitation period was close to expiring and that while she had not reached the fifteen per cent whole person impairment threshold at which she could bring common law common proceedings against her employer, this left: the door open for you to sue the proprietor of the shop in which you were hurt.

7 Mr Watts went on to state the threshold there is fifteen per cent of a most extreme case under our Civil Liability Act. He informed the plaintiff that he wanted to obtain counsel’s advice on her prospects of success in a common law claim.

8 The plaintiff stated that Mr Watts did not adequately explain to her the distinctions between the claims for workers compensation, common law and Civil Liability Act damages. I accepted that this plaintiff was of limited education, that she had no prior experience of personal injury claims and that she was probably confused concerning the rights available to her. However there was no evidence provided of what occurred in the six week period prior to the end of the limitation period.

9 There was material indicating that prior to 30 September 2004 Mr Watts asked her to provide $750 as funds in order to obtain a barrister’s advice on prospects of success of a claim in negligence. The plaintiff responded that she was living on workers compensation benefits and was virtually penniless and that she asked if she could fund the barrister’s opinion through her father’s credit card. The plaintiff said that she had no response to this latter request and there was no written evidence of a response on the file provided by Mr Watts.

10 The plaintiff claimed that she had a telephone conversation with Mr Watts later in November 2001 after the limitation period expired, in which he told her that the problem arising from its expiration could be overcome. He did not ask her again for funding for the barrister’s opinion. She said she believed that Mr Watts was looking into what could be done.

11 The plaintiff said that little occurred in 2005. Negotiations continued with the workers compensation insurer. In January 2006 she phoned Malouf and was informed that Mr Watts had left and that another solicitor had taken over her matter. By August 2006 her level of dissatisfaction with the delay in settling her claim had reached the point where she transferred her instructions to a second firm of solicitors.

12 Her workers compensation claim was settled in February 2008. The plaintiff’s attention appeared at that point to turn to the manner in which Malouf Lawyers handled her claim. Her new firm of solicitors declined to take proceedings against Malouf Lawyers. Through recommendations she consulted her current solicitors in October 2007. After a conference with Mr Lidden of counsel, proceedings were commenced against Malouf Lawyers.

13 The initial defence to those proceedings did not raise the question of her failure to mitigate her loss by bringing an application for an extension of time to commence proceedings against the current proposed defendants. The defence was amended in December 2008 to plead this issue and it prompted the current application.

14 The explanation was criticised as inadequate for failing to explain two periods of delay. The first was between September 2004 and November 2004 when the plaintiff was aware of the impending expiry of the limitation period. The second was between November 2004 and August 2006 when she transferred her instructions to the second law firm. The plaintiff’s explanation in respect of both periods was effectively the same; namely that she was confused about her rights, that she had been inadequately advised and that she left the issue of the common law claim to Mr Watts in the understanding that he was attending to it.

15 I have already noted that it was clear from the plaintiff’s evidence that she was confused and it was also clear that the advice given to her did not explain that a claim at common law could be pursued, regardless of the severity of the injury. I have also noted that before 20 November 2004, she was actively involved in dealing with offers from the workers compensation insurer and communicating on a regular basis with Mr Watts. She questioned a number of aspects of the way in which he was managing her claim, for instance, the length of time that it was taking to receive lump sum compensation, the reasons for seeking counsel’s opinion on her common law claim and the method by which she might pay for that opinion.

16 Importantly it was not her evidence that she believed that she was precluded from bringing a common law action. Rather she was told that an opinion was required concerning its prospects, albeit that the only difficulty to which she was alerted related to a “threshold” question of the percentage of a most extreme case that she was able to establish.

17 Further there was little in evidence of ongoing communication between the plaintiff and Mr Watts or his successor on these matters between September 2004 and August 2006. In fact the correspondence attached to Mr Watts’ affidavits indicated that the plaintiff failed to respond to requests for instructions in respect of the workers compensation claim between January 2006 and July 2006 as a result of which the file was closed. There was simply no mention in the correspondence after November 2004 of a common law claim or proceedings being commenced under the Civil Liability Act.

18 The authorities make it clear that a plaintiff may not sit back and assume that matters are being attended to. That principle applies particularly in this case where the plaintiff was aware that the limitation period had expired and that it was necessary for something to be done to overcome the problem, as well as to deal with questions concerning the prospects of the claim.

19 In the circumstances I was not satisfied that her explanation was sufficiently satisfactory to reach a conclusion that, in the face of a delay of more than seven years, it was just and reasonable to extend the time for the commencement of proceedings.

20 As far as prejudice was concerned, the evidence for the defendants came from Mr and Mrs Naum. Both alleged that they were on the newsagency premises on the day of the plaintiff’s injury and indeed they were noted as witnesses in the plaintiff’s workers compensation claim. Although they each claimed memory deficiencies in respect of some details of the business operations, their basic and emphatic position was that the plaintiff did not suffer injury on the newsagency premises. They both said in fact that no one suffered injury on the newsagency premises while they were involved in its business over a period of eighteen months. An incident book they maintained during that period contained no entries.

21 Mr Komninos stated that he had never even met the plaintiff. He said he worked in the back office of the premises and that sales representatives dealt with Mrs Naum or Mrs Yosevedis in the front part of the premises which was the retail section. Mrs Naum agreed that she remembered the plaintiff and that she had met her but she denied that there was any accident involving the plaintiff on the premises. Both stated that the accident could not have occurred as claimed because card stock was not kept on shelves. They said it was kept in drawers at the foot of the gondolas in which the cards were displayed and thus it would have been unnecessary for Mr Komninos to climb on any object to retrieve them.

22 Mrs Yosevedis also denied any knowledge of an injury to the plaintiff on the newsagency premises.

23 Based on this response, the absence of company documentation or poor recollections of events could not be regarded as matters of prejudice. The question to be decided at trial would be whether the court preferred the evidence of the plaintiff concerning the circumstances of her injury to the emphatic denials of the defendants and Mrs Naum that she was or could have been injured on the newsagency premises.

24 There was nothing before me to suggest that the credit issue could not be fairly tried. I was not persuaded therefore that there would be prejudice to the defendants, if the time for the bringing of proceedings was extended, to the point where they would not secure a fair trial of the issues. However in the absence of an adequate explanation of the delays involved, the application must fail and it is dismissed.

ORDERS
1) The application is dismissed.

2) The plaintiff is to pay the defendants’ costs of the application.

3) The exhibits are returned.

4) The affidavits will be retained in case they are needed for some other purpose.

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