Clark v Whiteley
[2004] TASSC 71
•6 July 2004
[2004] TASSC 71
CITATION: Clark v Whiteley [2004] TASSC 71
PARTIES: CLARK, Lynette Yvette
v
WHITELEY, Melinda Jayne
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 668/2003
DELIVERED ON: 6 July 2004
DELIVERED AT: Hobart
HEARING DATES: 13 May 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of Actions – Extension of time – Considerations – Arguable case – Explanation for delay – Prejudice – Exercise of discretion.
Limitation Act 1974 (Tas), s5.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: L Mackey
Defendant: A J Denehey
Solicitors:
Plaintiff: Ogilvie Jennings
Defendant: Murdoch Clarke
Judgment Number: [2004] TASSC 71
Number of Paragraphs: 17
Serial No 71/2004
File No 668/2003
LYNETTE YVETTE CLARK v MELINDA JAYNE WHITELEY
REASONS FOR DECISION MASTER S J HOLT
6 July 2004
The plaintiff claims damages for personal injuries arising out of the negligent driving of the defendant on 10 November 1999. The plaintiff’s writ was filed on 18 December 2003, a little over four years after the cause of action had accrued. The Limitation Act 1974 (“the Act”), s5(1), imposes a primary limitation period of three years after the date of the accrual of the cause of action for the bringing of such proceedings. The Act, s5(3), empowers the court to extend the limitation period for up to a further three years if “in all the circumstances of the case it is just and reasonable so to do”. On 14 January 2004 the defendant delivered a defence pleading the limitation period and on 19 January 2004 the plaintiff filed her application for an extension of time.
Two affidavits of the plaintiff, sworn 12 February 2004, and 15 April 2004, were read into evidence. The first of those affidavits contains the plaintiff’s description of how the accident occurred. She said that at about 2 pm on 10 November 1999 she was intending to cross Emu Bay Road at Deloraine to return to her parked car. She continued:
“I left the post office just before 2.00 pm. I checked left and right for oncoming vehicle (sic) and commenced crossing the road, towards where my motor vehicle was parked.
I waited on the centre road markings for three or four motor vehicle (sic) travelling east towards the Deloraine Bridge to pass. I continued across the road and when I was almost to my motor vehicle, I observed another vehicle travelling east towards the bridge just before it struck me.
I was thrown into the air and into a vehicle parked on the northern side of the road. I struck the vehicle’s protruding door handle with my sternum.
I bounced off the vehicle and back onto the roadway.
Immediately prior and up to the time of impact, I did not hear the screeching of tyres.”
The plaintiff said that immediately after the accident she was assisted at the side of the road by some people. She was then taken to the local doctor’s surgery and Pethidine was administered. From there she was taken by ambulance to the Launceston General Hospital where she remained an inpatient for five days. In her statement of claim the plaintiff alleges that the defendant’s driving was negligent in that the defendant failed to keep a proper lookout; failed to see the plaintiff in time; failed to swerve or manoeuvre her vehicle so as to avoid a collision; failed to brake so as to avoid a collision and drove too fast in an area frequented by pedestrians and generally failed to drive with due care, skill and attention.
In Hill vIluka Corporation Ltd [2002] TASSC 113, the Full Court said at par23:
The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports ¶81-277.”
Counsel for the defendant submitted that the plaintiff’s case is weak. The plaintiff had waited in the middle of the road while three or four eastbound vehicles passed by. She said in cross-examination that the distance from the middle of the road to her parked car was only “12 or 14 feet”. She said that looking to the left for eastbound traffic there was a sight distance of “20 or 30 metres, I think. I don’t know exactly”. Annexed to the plaintiff’s affidavit was a copy of a Tasmania Police Traffic Accident Report which under the heading “BRIEF DESCRIPTION” said:
“Unit 2 travelling east on Emu Bay Road near the Amble Inn shop. Pedestrian crossed from southern side of roadway into the path of Unit 2. Unit 2 braked heavily. Unit 2 collided with pedestrian on front L.H side causing dent in bonnet. Pedestrian conveyed to L.G.H.
R-D. W-F T-M V-E.”
It was common ground that the initials at the end of the description stood respectively for road dry, weather fine, traffic medium, visibility excellent. The case notes from the Department of Emergency Medicine at the Launceston General Hospital show that the plaintiff was first seen at 3.25 pm on the day of the accident and as to the circumstances of the injury say “Pedestrian crossing road hit by a car running at 20 – 30 km/hr”. As indicated earlier, the plaintiff said that she was not aware of the approach of the car until just before it struck her. Assuming that the plaintiff was looking to the left when she set off from the centre of the road to complete her crossing it is difficult to understand how she could not have seen the approach of the defendant’s vehicle. Perhaps she was not looking to the left, perhaps she was daydreaming or her attention was focused on something other than traffic matters. On the material before me it appears that the defendant has a reasonable argument that the plaintiff was negligent, but it does not necessarily follow that the defendant was without fault. Whether the defendant is to blame simply cannot be assessed at this stage. I was not furnished with statements from the witnesses named in the police report and I have not been told what the defendant’s version of events is. The police report indicates that the plaintiff was hit near to the side of the road next to her parked car and there is sufficient in it for me to be satisfied that there is at least a possibility that a tribunal of fact would find that the defendant should have seen the plaintiff earlier and could have taken steps in time to avoid the accident. Assessing the plaintiff’s case as weak or strong on the limited material before me would be purely speculative and dangerous. Generally on applications of this kind the enquiry as to potential liability is limited to whether or not the plaintiff has demonstrated that there is an arguable case. I see no reason why I should go beyond that limit in this case. The case which the plaintiff has put forward cannot be categorised as obviously hopeless and that is conceded by the defendant. I am persuaded that it would not be futile to allow the plaintiff’s case to proceed and I do not consider it to be necessary or appropriate to assess merits beyond that.
The next matter to be considered is the plaintiff’s explanation for not instituting the proceedings in a timely fashion. In her first affidavit sworn 12 February 2004, the plaintiff said:
“The MAIB arranged for me to be assessed by Dr Iain Kelman on the 9th October 2003. I saw Dr Kelman, who issued a medical report to the MAIB.
Following receipt of his report, the MAIB wrote to me indicating that they would not pay for any further medical treatment based upon a report obtained from Dr Kelman. Up until this point in time, I had not considered commencing legal action as my primary concern was payment of my medical expenses and these had been paid.”
A little over two months later in her affidavit sworn 15 April 2004, the plaintiff provided an additional explanation. She said:
“From the date of the accident I had had an intention not to proceed to claim damages from the Defendant for the personal injuries I sustained. I thought this way as I was familiar with the Defendant. She was a former student at the school at which I taught at the time. She was also a friend of one of my close friend’s sons. I had the belief that if I sued the Defendant any monies I would be awarded would come from her pocket and a suit could be something held against her in her life. It was only subsequently when I spoke to my daughter whilst at the farm in November 2003 that I understood that any damages that might be awarded to me would not come from the Defendant’s pocket.”
About another month later when the plaintiff was cross-examined on her affidavits she added risks and costs of litigation as another factor influencing her decision not to sue.
The failure to commence the proceedings in timely fashion has to be considered in context. Firstly, at least in the plaintiff’s mind, the symptoms arising from her injuries were neither minor nor of short duration. The transcript at p31, line 32, to p32, line 3, p34, lines 28 – 44 and p35, lines 35 – 44 is as follows:
“So apart from your chest and your legs and your head did you suffer any injuries? … And my hips.
Yes. When you were first aware that … The lower back – my lower back was very sore.
Mm. When were you first aware that had suffered an injury involving your hip? … It was sore right from the start.
Right. I am not about to … It wasn’t – I mean my legs and my hips ached and hurt, right, my lower back part just ached and hurt, there were bruises right through there.
Yes… It wasn’t – it wasn’t until later that it really started to deteriorate, but it was sore.
Yes. How long after the accident were you first aware that you hurt your lower back? When I was thrown up in the air I came back down on my back, right.
…
Well did you give him that history when you first saw him, that you had had back and neck problems for a long time before ever the accident happened? … Yes, that was correct, but that was in the back, not the hip.
But the back pain extended across to the hips, didn’t it, before the accident happened? … It was the sciatic nerve.
The back pain that you suffered before the accident happened radiated across from your low back into your hips, if I suggested to you that that was so would you agree or disagree? … At times, but not – it wasn’t chronic and it wasn’t – it wasn’t as it was after the accident.
Right. So you had low back pain before the accident which extended across to your hips occasionally, but the accident made it worse? … Very much worse.
…
Yes. Now you went to see Dr Kelman for the MAIB, didn’t you, you refer to him in your affidavit? … Yes.
And he’s an orthopaedic surgeon, is that – do you know that or don’t you know that? … Yes, I know that he is an orthopaedic surgeon.
Yes. And you told him that you had constant ongoing symptoms involving your neck and low back, didn’t you, among other things? … That I had had that since the accident yes. I saw Dr Kelman for 30 minutes.”
In her affidavit of 12 February 2004, the plaintiff said at pars 12 – 18 and 29:
“By reason of the severe pain in my chest from where I struck the door handle, I could not swallow or drink for several days. My legs were very swollen and both legs were numb below the knees.
I had hard areas below the skin on both legs like a corked thigh. These hard areas lasted for well over a year after the accident.
I had a large haematoma on my left leg just above the knee.
The injuries I sustained caused me to walk with a limp and, for the first time, I noticed pain in my hips. I could not lie properly.
I underwent chiropractic treatment which appeared to relieve my symptoms temporarily but then they recurred.
My hips continued to deteriorate and in January 2004 I underwent a hip replacement.
I had no problems with my hips prior to the accident.
…
I have significant ongoing symptoms. My recent hip replacement has greatly reduced my symptoms in the left hip but I have been advised that I will also require a right hip replacement. It is my belief, by reason of my absence of symptoms prior to the collision, that they have been caused by the collision. The MAIB has not paid for the cost of the hip replacement.”
The second aspect of the context in which the delay occurred is that it appears that up until late 2003 the plaintiff’s injuries had not caused her to be significantly out-of-pocket. There is nothing in the material to suggest that the plaintiff lost employment or income as a result of the accident. The hospital records for the date of the plaintiff’s admission on 10 November 1999, describe her occupation as “Retired and/or pensioner”. As to ongoing treatment expenses it was not until 27 October 2003 that the Motor Accidents Insurance Board (“MAIB”) wrote to the plaintiff saying:
“Dr Kelman notes that you are receiving chiropractic treatment once per week and he acknowledges that chiropractic treatment is probably of value to you and on a symptomatic basis it would appear to be of assistance. However, Dr Kelman does not consider that it is necessary as a direct result of the accident in November 1999. Therefore, I confirm that the Board is not prepared to fund chiropractic treatment from 31 October 2003.”
Clearly the cessation of payments for chiropractic treatment and the impending hip replacement operation, the need for which the plaintiff attributes to the accident, were factors which motivated the plaintiff for the first time to seek legal advice about the accident. Within about a month of the cessation of the payments for the chiropractic treatment the plaintiff had contacted solicitors and the solicitors promptly notified the MAIB of the intention to make a common law claim for damages. The writ issued on 18 December 2003 and the application for an extension of time was filed on 19 January 2004.
Having regard to the circumstances of the accident; the fact that the defendant was a young person known to the plaintiff and the plaintiff had apparently not been out-of-pocket as a result of the accident until after the end of October 2003, I accept that the plaintiff took no legal action because of the risks and costs associated with litigation because the defendant was known to the plaintiff and because her expenses were being paid.
Counsel for the defendant submitted that that part of the plaintiff’s explanation for delay where she said that she believed that if she sued and recovered compensation the defendant would have to personally pay had been dishonestly given. As counsel pointed out the assertion of a belief that the defendant would have to pay personally did not appear until sometime after the swearing and filing of the plaintiff’s first affidavit. The assertion is incapable of sustaining rational scrutiny. The plaintiff knew that her hospital account had been paid by the MAIB as had other medical and chiropractic expenses. She had filled in forms for the MAIB and been to their offices within a short time following the accident. If the plaintiff was worried about the defendant having to pay personally and that was a significant part of a decision being made as to whether or not to sue for compensation for serious and long term symptoms which the plaintiff attributes to the accident, it is inconceivable that she would not at least have made an enquiry of the defendant; the MAIB or some other person as to insurance. Although I reject this part of the plaintiff’s explanation for delay I am not prepared to find that the plaintiff was dishonest in putting the matter forward. If there had been an intent to deceive even the most elementary consideration by the plaintiff would have made it apparent that the attempt would be an exercise in futility. The fact that the matter was put forward at all shows that the plaintiff is not a well ordered or analytical thinker. Counsel for the defendant pointed out some inconsistencies in the plaintiff’s evidence and some erroneous assertions made by her in the course of cross-examination. For example, she told counsel for the defendant that the MAIB had paid no medical expenses except for those occurring during the course of her stay at the Launceston General Hospital in the few days following the accident and that all subsequent doctors’ accounts had been paid by Medicare because of the plaintiff’s pensioner status. This was notwithstanding that in her affidavit she had said that the cessation of payments for medical expenses was a motivating factor in her decision to sue. There were other examples of assertions so obviously wrong and unsustainable that it is almost impossible to conceive that they were the result of a conscious effort to deceive. Having watched the plaintiff whilst she gave evidence (albeit by video link) I saw nothing which gave me the impression that she was a dishonest person.
Although I have not accepted the plaintiff’s explanation for delay in its entirety, I find sufficient in it to make the failure to commence proceedings in a timely fashion understandable. The plaintiff, although perceiving some long-term health problems to be attributable to the accident, does not appear to have been out-of-pocket until after the end of October 2003 when the MAIB ceased paying chiropractic expenses. The driver of the vehicle which hit her was known to her and taking legal proceedings would occasion risk and potential cost. I accept the plaintiff’s evidence that she was unaware of the three year time limitation period until she was so advised in late October or early November 2003. Within a couple of months of receiving that advice she had contacted a solicitor and commenced her action. I consider the delay to have been satisfactorily explained.
Counsel for the defendant said that his primary submission was that the court should not be satisfied that the delay has not made the chances of a fair trial unlikely. He referred to the well-known observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, where he said:
“Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo ‘what has been forgotten can rarely be shown’. So it must often happen that important, perhaps decisive evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
Counsel for the defendant referred to my decision in Triffitt v Gleeson & Anor [2001] TASSC 61. A case where the writ did not issue until almost six years after the accident. There the plaintiff had attempted to overtake two trucks on the Bass Highway and, according to his evidence, halfway through the manoeuvre he perceived that the leading truck was slowing down as it approached a junction. He said that he could not tell whether the truck’s right-hand indicator was on because it was covered in fertiliser. The plaintiff fearing that the truck was about to turn off the road to the right applied his brakes and was hit from behind by a vehicle following him in the overtaking manoeuvre. The plaintiff’s vehicle was not badly damaged and he was able to continue his journey along the Bass Highway. Attribution and apportionment of liability was likely, if the matter went to trial, to be dependent upon a high level of detail. How fast were the trucks travelling immediately prior to the commencement of the overtaking manoeuvre? Should the existence of fertiliser (if it was there at all) on the leading truck’s right-hand indicator and the existence of the junction been apparent to the plaintiff before he commenced the overtaking manoeuvre? Was the plaintiff aware of the vehicle behind him? Could he have safely completed the overtaking manoeuvre? Did he apply his brakes heavily and, if so, did he need to apply them heavily? How close to the plaintiff’s vehicle was the following vehicle travelling? For how long had the fertiliser been on the indicator light of the defendant’s truck? Should the defendant have known of the existence of the fertiliser on the indicator light? In that case, notwithstanding the lack of any evidence from the defendants as to specific prejudice I was not prepared to infer that the chances of a fair trial had not been rendered unlikely as a result of delay.
I find no similarity in the circumstances that pertained in Triffitt and the circumstances of this application. Each case will depend on its own facts. As Kirby J said in Taylor at 566:
“It will be rare that the passage of time does not cause at least some disadvantages to a prospective defendant (eg the erosion of memory; the loss of documents; and the death, departure or disappearance of witnesses). But precisely what that disadvantage is in a particular case is better determined on evidence than on the basis of judicial generalities about time, the importance of finality and the usual desirability of prompt action for the fair trial of contested issues.”
Here, unlike in Triffitt, I have no reason to think that highly detailed witness recollections are likely to be of critical importance. The plaintiff’s description of events is simple. She says that she walked into the middle of the road and waited on the centre markings for three or four eastbound cars to pass by. She then attempted to complete her crossing and did not see the defendant’s car until a moment before it hit her. Whether the defendant has any liability is unlikely to depend to any significant extent on the quality of the plaintiff’s recollection. It is far more likely to depend upon the evidence as to the manner of the defendant’s driving, a subject upon which the plaintiff cannot throw much light. The names of the witnesses are included on the police report. The defendant has not said that her recollection of the accident is now unsatisfactory, nor has she adduced evidence that witnesses relevant to her defence are no longer available or no longer have satisfactory recollections of the event. In the circumstances of this case I am prepared to infer from the lack of evidence of specific prejudice that the chances of a fair trial on liability have not been rendered unlikely through delay and I so find.
As indicated earlier in these reasons the plaintiff has a number of health complaints which she attributes to the accident. There was no assertion on behalf of the defendant that the nature, extent and cause of the problems about which the plaintiff complains can no longer be adequately investigated. Absent such an assertion I infer and accordingly find that delay has not rendered the chances of a fair trial on the question of quantum of damages unlikely.
I have found that the plaintiff has an arguable case. I am satisfied with the explanation for the delay. Although the proceedings were not commenced until a little over four years after the date upon which the cause of action accrued I have found that allowing the action to proceed will not cause material prejudice to the defendant and in particular that the chances of a fair trial have not been rendered unlikely. I take into account the general interest which the community has in having claims commenced and disposed of promptly, however, I am persuaded that the plaintiff’s case is a justifiable exception to the provision imposing the three year time limitation period.
I order that the time within which the plaintiff’s action may be commenced is extended to the date of the issue of the writ, namely, 18 December 2003.
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