Cooper v Curtis

[2010] TASSC 64

[2010] TASSC 64

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Cooper v Curtis [2010] TASSC 64

PARTIES:  COOPER, Adrian Paul
  v
  CURTIS, Alfred

COOPER, Adrian Paul
  v
  CURTIS, Alfred

NEIL JOHNSON & CO PTY LTD trading as PALLET REPAIR COMPANY (PALLET REPAIR UNIT TRUST) ABN 19 936 067 268)

FILE NO/S:  390/2006 and 906/2008
DELIVERED ON:  22 December 2010
DELIVERED AT:  Hobart
HEARING DATES:  15 September, 11 November and 8 December 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injury matters – Principles upon which discretion exercised – Plaintiff's solicitor at fault.

Limitation Act 1974 (Tas), s5(3).

Aust Dig Limitation of Actions [1085]

REPRESENTATION:

Counsel:
             Plaintiff:  T D Cox
             Defendants:  L K Mackey
Solicitors:
             Plaintiff:  Hilliard & Associates
             Defendants:  Ogilvie Jennings

Judgment Number:  [2010] TASSC 64
Number of paragraphs:  44

Serial No 64/2010

File No's 390/2006 & 906/2008

ADRIAN PAUL COOPER v ALFRED CURTIS

ADRIAN PAUL COOPER v ALFRED CURTIS
and NEIL JOHNSON & CO PTY LTD

REASONS FOR JUDGMENT  HOLT AsJ

22 December 2010

The applications

1. The plaintiff suffered personal injury in a motor vehicle accident on 8 September 2003.  Although not an employee of the second defendant, he was working at the second defendant's premises at Glenorchy.  A forklift truck driven by an employee of the second defendant ran over his foot.  It is common ground that pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973, the Motor Accidents Insurance Board is required to indemnify the forklift driver for any liability which he may have to the plaintiff in respect of the injury suffered in the accident.  The plaintiff, who at the time of the accident was aged 30 years, has not been able to return to paid employment and since May 2004 has been receiving a disability support pension.

1. The plaintiff first consulted solicitors Hilliard & Associates in March 2004.  He mistakenly advised his solicitors that the accident had occurred on 14 September 2003.  On 26 July 2006 he instructed his solicitors to commence proceedings against the driver and the employer of the driver.  A writ issued on 12 September 2006 against the driver and a company wrongly identified as the employer.  The principal of the firm, Mr Brian Hilliard, allowed the six month period during which the writ was effective for service to pass by without attempting to serve the driver.  He did not tell the plaintiff that the writ had not been served and that it had become ineffective for service.  He knew that the second defendant had been wrongly named and was not the forklift driver's employer.  He took no steps to rectify the situation.  In his affidavit he said that in September 2007 he decided not to pursue the forklift driver for reasons including that:  "He would most likely be impecunious".  He did not tell the plaintiff that he had made this decision.

1. On 13 October 2008 a new writ issued against the forklift driver and this time correctly named the employer as second defendant.  In late 2008 the defendants delivered a defence claiming the protection of the three year time bar imposed by the Limitation Act 1974, s5.

1. On 17 June 2010 an application in the following terms was filed on behalf of the plaintiff in the 2006 proceedings: 

"1That the period within which this application to renew the writ dated 11 September 2006 is made be extended to the date of the application

2That the writ be renewed for a period of 7 days from the date of any order to renew;

3That the writ dated 11 September 2006 be amended in the form annexed hereto and marked with the letter A;

4That time be extended for the bringing of action number 390 of 2006 for a period of 7 days from the date of any order to renew the writ."

1. The amendment sought in par3 of the application was to substitute "8 September 2003" as the date of the accident. 

1. On 6 July 2010 an application was lodged in the 2008 proceedings seeking an order:

"That time be extended for bringing the action number 906 of 2008 for a period of 7 days from the date of any order."

1. An order was made that the applications be heard and determined at the same time.

1. No purpose would be served by renewing the 2006 writ unless the time within which that action could be commenced is extended. Accordingly, the focus of the hearing of the applications was on the discretion to extend time under the Limitation Act.

1. Although the 2006 writ issued only a few days after the three year limitation period had expired, account is to be taken of the whole of the period from the accrual of the cause of action up until the making of the extension of time applications (see Norris v McGeachey [2010] TASFC 4 at par26). As both extension of time applications were filed in mid 2010 no point of distinction arose in the consideration of the applications.

The approach

1. The first step is the identification of the considerations which apply where a plaintiff seeks an extension of time for the commencement of proceedings. 

1. The power relied upon by the plaintiff is contained in the Limitation Act, s5(3), which authorises an extension of up to six years from the accrual of the cause of action if in all the circumstances of the case the extension is just and reasonable.

1. The applicant for an extension of time must show that his or her case is a justifiable exception to the requirement to commence proceedings within the primary limitation period.  There must be a positive demonstration that the justice of the case requires the extension (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541).

1. In Hill v Iluka [2002] TASSC 113, the Full Court said at par 23 that it is clear that in considering the circumstances of the case the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor. The Court said that, in most cases, regard must also 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 to the defendant.

Has delay made the chances of a fair trial unlikely?

1. In Brisbane South Regional Health Authority v Taylor (supra), Toohey and Gummow JJ accepted at 547 that it is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice. Kirby J at 567 said that the burden of persuading the court on the issue of specific prejudice lies on the party making the suggestion.

1. The defendants did not adduce evidence to the effect that the forklift driver, or other witnesses to the accident are unavailable.  No evidence was adduced to indicate that the incident had not been documented or that witness statements had not been taken at about the time of the occurrence.  If such evidence existed, the defendants would have an interest in finding it and presenting it.  I infer and, accordingly, find that a fair trial can still occur on the question of liability.

1. Counsel for the defendants submitted that a fair trial on the question of the quantum of the damages is no longer possible because of the delay.  Counsel referred to the report of an occupational physician dated 5 August 2004 in which it was said that assessment is difficult as a result of cognitive problems with the plaintiff due to a closed head injury suffered in 2000.  There was a report from the plaintiff's general practitioner dated 11 August 2004 which records that due to the 2000 head injury the plaintiff had a diminished capacity to "retain things and his memory is poor".  There may be problems with obtaining a precise medical history from the plaintiff, but the only evidence as to these problems attributes them to the head injury and not to the passage of time.  In any event, there is no medical evidence to indicate that there are insufficient available records of medical investigations, treatments and consultations for the cause, nature and consequences of the injury to be properly assessed.  I conclude that the chances of a fair trial on the question of quantum have not been lost because of delay. 

An arguable case

1. After considering whether there can still be a fair trial, the next of the matters to which regard must generally be had, as set out in Hill v Iluka, is the question of whether the plaintiff has an arguable case. 

1. The plaintiff was a pedestrian and the first defendant drove a motor vehicle over his foot.  There is nothing to suggest that this does not give rise to an arguable claim against the first defendant.  Counsel for the defendants conceded that there was an arguable case against the first defendant for which the second defendant as the employer might be vicariously liable. 

1. It was submitted, however, that the employer could not successfully be sued.  Part X of the Workers Rehabilitation and Compensation Act 1988 was relied upon. At the time of the injury the legislation prevented a worker from making a damages claim unless there had been an election to bring proceedings following an agreement or determination that the degree of permanent impairment arising from the injury is a percentage of the whole person of not less than 30%. The plaintiff cannot satisfy this precondition.

1. Section 138AA provided that the relevant provisions applied to an injury suffered by a "worker".  Section 3 defined "worker" as meaning a person who works under a contract of service or training agreement and any person taken to be a worker for the purposes of the Act.  There is evidence that the plaintiff was being paid for his work by a company in the business of providing labour.  The contract between the plaintiff and the labour provider specified that the plaintiff was not an employee, but self-employed.  The contract also said that the plaintiff was responsible for supplying his own equipment and carrying his own accident insurance.  Section 4B(2) provided that a contractor who takes out his own personal accident insurance is taken not to be a worker whilst the insurance remains valid.  Although in his statement of claim the plaintiff says that he was employed, there is nothing in the context of the plea to indicate that this is a reference to a contract of service.  Counsel for the defendants did not make submissions as to the basis upon which it would be demonstrated, if there was a trial, that the plaintiff was a worker within the meaning of the Act. 

1. The plaintiff has provided prima facie evidence of an arguable case against both defendants and I am unpersuaded by the second defendant's submission that the plaintiff has no prospect of success against it. 

Delay

1. The next matter to be considered is the length of the delay.  The accident occurred on 8 September 2003.  The first either defendant heard of the claim was when the 2008 writ was served in late 2008. The extension of time applications were not made until the middle of 2010. 

1. This delay needs to be considered in the context that in 2000 the plaintiff suffered a closed head injury.  In medical reports sent to Hilliard & Associates in August 2004 the plaintiff is described as having "cognitive problems" and a poor memory. 

1. The plaintiff first contacted Hilliard & Associates in March 2004. In May 2004 a senior solicitor at that firm prepared a memorandum and submitted it to Mr Hilliard. In the memorandum she commenced by correctly noting that: "It appears to be a simple case of negligence on the part of the driver …". The memorandum then goes on, in highly confusing terms, to suggest that a claim cannot be made as the plaintiff cannot overcome a requirement in the Workers Rehabilitation and Compensation Act, that before commencing proceedings, the worker must make an election following an agreement or determination that he has suffered a degree of permanent impairment being a percentage of the whole person of not less than 30%. The memorandum concludes with the solicitor recommending to Mr Hilliard that the firm should not take up the plaintiff's claim.

1. The plaintiff provided Hilliard & Associates with documents and information showing that he was an independent contractor carrying his own accident insurance and not a worker within the meaning of the Workers Rehabilitation and Compensation Act. The 30% impairment threshold imposed by the Act applied only to claims by workers. In addition, as the plaintiff was not a worker, he was not person in respect of whom a policy of insurance was required to be maintained under the Act, s97(1). This being so, the driver of the forklift was entitled to be indemnified in respect of any liability which he had to the plaintiff for damages for personal injury by the Motor Accidents Insurance Board pursuant to the Motor Accidents (Liabilities & Compensation) Act 1973, s14. 

1. Accordingly, on the face of it, the plaintiff had a simple claim against the forklift driver. 

1. There was no reason why proceedings should not have been instituted promptly.  However, the affidavits prepared by Hilliard & Associates, who continue to act for the plaintiff, record that on 5 August 2004 the plaintiff issued an instruction to Mr Hilliard that he did not wish to pursue the claim against the forklift driver until Hilliard & Associates had investigated the incident in 2000 when the plaintiff had suffered a severe closed head injury and a hip injury after falling down some stairs at a nightclub.  No explanation for this instruction is given in the affidavits.  The plaintiff was asked in cross-examination for the reason, but said he could not recall.  In the affidavits prepared by Hilliard & Associates no information is given as to the content of any communications which led to the instruction and no information is given as to whether the instruction was based upon legal advice. 

1. The affidavit of Mr Hilliard states that on 26 July 2006 the plaintiff instructed him to discontinue proceedings in respect of the nightclub fall and instructed him to bring a damages claim against the forklift driver and the employer.  In his affidavit the plaintiff says that he was told by Mr Hilliard at the time he issued the instruction to commence proceedings that such an action had to be commenced within three years of the date of his accident.  On the same day that the instruction was issued, Mr Hilliard handed the file, including the confusing diary note of May 2004 to a junior solicitor in his office.  The solicitor found the address of the forklift driver in the telephone directory.  She issued correspondence to the company which she thought may have been the employer of the forklift driver seeking confirmation that the company was in fact the employer.  There was the plaintiff's initial instruction that the accident had occurred on 14 September 2003 and so on 8 September 2006, being the third anniversary of the accident, the primary period of limitation passed by unnoticed. 

1. On 8 September 2006 the solicitor received advice from the company which she thought may have been the employer of the forklift driver that it was not the employer.  Time had run out and so on 11 September 2006 a writ issued against the forklift driver and the wrong company.  On 26 September 2006 the solicitor posted the writ to the registered office of the company. On 19 October 2006 she received an email from the company once again advising that it had not been the employer of the forklift driver and stating that if the action was pursued the company would seek to recover its costs of defending the claim. 

1. The solicitor had made no attempt to serve the forklift driver and on 20 October 2006 she returned the file to Mr Hilliard with a note advising him that the forklift driver had not been served and that the second defendant claimed to have been wrongly named in the writ.  The note went on to alert Mr Hilliard to the fact that the writ would only be effective for service for a limited period.  In the note the solicitor said to Mr Hilliard:  "The matter is now in your hands".  The file stayed with Mr Hilliard, but he did nothing.  On 10 March 2007 the writ became ineffective for service on the forklift driver.  On 26 April 2007 Mr Hilliard sent the file to another solicitor in his office.

1. On 31 August 2007 the file was returned to Mr Hilliard without it having been advanced in any material way.  In September 2007 Mr Hilliard decided, without consultation with the plaintiff that the claim would not be pursued against the forklift driver.  In his affidavit Mr Hilliard said that a reason was that the forklift driver could not be located.  There was no basis for this assertion.  Mr Hilliard also said that a reason was that the forklift driver "would most likely be impecunious" but this was, of course, irrelevant because of the obligation of the Motor Accidents Insurance Board to indemnify drivers at fault.  The plaintiff was not informed of the decision.

1. In February 2008 Mr Hilliard requested a review of the file by a solicitor in his office.  The solicitor ascertained the correct name of the employer of the forklift driver from documents which had long since been contained on the file.  A letter was sent to the employer.  On 21 February 2008 a response was sent confirming that the company employed the forklift driver and that the plaintiff was not an employee, but a contractor. 

1. The solicitor then wrote several letters to the plaintiff between February and May 2008 seeking his instructions as to whether the action was to be pursued.  The letters went unanswered as the house to which they had been sent had been destroyed by fire approximately a year earlier.

1. In June 2008 the plaintiff telephoned his solicitors and an appointment was made for him to see Mr Hilliard on 18 June.  The plaintiff was told by Mr Hilliard that the writ had not been served on the forklift driver and that the wrong company had been named as second defendant.  The plaintiff asked Mr Hilliard to do whatever was needed to rectify the problems. 

1. On 3 October 2008 the plaintiff received a letter from his solicitors advising that a new writ should be issued and requesting that the plaintiff advise if he was willing to pay a filing fee of $418.40.  The new writ naming the forklift driver as first defendant and the forklift's driver employer as second defendant issued on 13 October 2008.  On 29 October 2008 the plaintiff received a letter advising that the writ had issued.  The plaintiff said in his affidavit that he believed:  "that the proceedings were on track and that I needed to just wait to hear what the position on liability was". 

1. In late 2008 defences were received claiming the protection of the three year time bar contained in the Limitation Act. In December 2008 the file was back in the hands of Mr Hilliard, but he did not tell the plaintiff of the content of the defence nor the need to apply for an extension of time. The plaintiff was told by a solicitor at Hilliard & Associates in April 2010 that there was a limitation plea and that an extension of time would need to be obtained.

1. In mid 2010 the applications and supporting affidavits were filed. The hearing commenced on 15 September 2010, but had to be adjourned after the plaintiff's counsel formed the view that the affidavit evidence was insufficient.  In particular, there was no evidence as to why the 2006 writ had not been served on the forklift driver.  Further affidavits were filed and the balance of the evidence was received in November.  The matter finally came back to court for the completion of submissions on 8 December.

1. There is one aspect of the explanation for the delay which has been provided which requires further mention.  In 2004 the plaintiff instructed his solicitors to defer instituting proceedings and no reason has been given for the issue of that instruction.  In many cases this would count strongly against a favourable exercise of the discretion to extend time.  However, here the plaintiff had within a few months of the accident engaged solicitors and provided sufficient information for them to recognise that this was a simple motor vehicle accident claim in respect of which the forklift driver would be entitled to be indemnified by the Motor Accidents Insurance Board.  The solicitors perceived complexity and problems where none existed.  If the matter had been properly considered and the plaintiff properly advised there would have been no reason for him to countenance the delaying of the bringing of his claim.  He had a simple case.  He had a serious injury which prevented him from working and he had become dependent on a disability support pension.  I infer that if the plaintiff had been properly advised and properly represented the writ against the forklift driver would have been issued and served within about a year of the accident.  Accordingly, the 2004 instruction to defer proceedings will not carry the degree of adverse weight that such an instruction would usually carry on an extension of time application.

Other matters

1. The rationales for enacting limitation periods should be considered in deciding whether the justice of the case requires the grant of the extension sought.  They are set out by McHugh J in Brisbane South Regional Health Authority v Taylor at 551 – 553 as follows:

(a)As time goes by relevant evidence is likely to be lost.  The longer the delay the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose.

(b)Allowing actions to be belatedly commenced is oppressive to prospective defendants.

(c)People should be able to arrange their affairs on the basis that claims can no longer be made against them.

(d)There is a public interest in having disputes settled quickly. 

1. Counsel for the defendants argued that the belated notification of the existence of the claim has caused disadvantage.  The first the Motor Accidents Insurance Board knew of the accident and the injury was when the second writ was served in late 2008.  There is a medical report showing that the injury to the plaintiff's hip sustained in the 2000 nightclub fall may have been compounded by the awkward gate which he has adopted as a result of the crush injury to his foot in 2003.  There is evidence that in 2004 the plaintiff required extensive occupational rehabilitation assistance in relation to chronic pain effecting his right ankle.  The Motor Accidents Insurance Board could have facilitated such assistance if it had been made aware of the accident shortly after it had occurred. 

1. Another feature is that any injustice suffered by the plaintiff as a result of a refusal of his application will be diminished by the apparent viability of a claim which he might bring against Hilliard & Associates.  Usually, however, on an extension of time application, the possibility of a claim against negligent solicitors does not attract significant weight.  In Collingwood v Bishop Davies Court [1999] TASSC 94, Evans J said at par14:

"A further relevant factor in the exercise of the Court's discretion is the applicant's potential cause of action against Mr Docking. I agree with the observations of Underwood J in Woolley v Jones (Full Court) A20/1995 at 7, that great caution should be exercised in attaching too much weight to this factor. I add that an alternative cause of action such as this, can present particular difficulties to a plaintiff. To establish liability against the solicitor, the plaintiff must first establish the negligence of the primary tortfeasor. As the primary tortfeasor is not a party to the action, that entity cannot be interrogated and discovery cannot be sought from it. The process of assessing damages can also give rise to difficulties as it involves determining when, in the absence of the solicitor's negligence, the principal action would have come to trial in the ordinary course, and establishing the evidence that would have been available to tender to the court at the time; Johnson v Perez [1988] HCA 64; (1989) 166 CLR 351 and Nikolaou v Papasavas, Phillips & Co [1989] HCA 11; (1989) 166 CLR 394."

1. Some of the difficulties referred to by Evans J do not exist in this case. By reason of recent changes to the Supreme Court Civil Procedure Act and the Supreme Court Rules discovery is now available against non-parties. In addition, there is nothing to suggest that the forklift driver would be unavailable or uncooperative in assisting the plaintiff with a claim against Hilliard & Associates.

Conclusion

1. All of the circumstances of the case must be considered and weighed.  I have concluded that the justice of the case requires the grant of an extension of time.  The factors to which I have attached the greatest weight are that there is an arguable case, a fair trial can still occur and that the failure to promptly commence proceedings and the delay is due to the neglectful conduct of Hilliard & Associates.  I have taken into account that the Motor Accidents Insurance Board has lost an opportunity of facilitating treatment which might have resulted in a better medical outcome for the plaintiff.  I have also taken into account that the delay has been very lengthy and that the quality of justice which can be administered at trial diminishes with the passage of time.  I have taken into account the other rationales underpinning limitation legislation.  I have taken into account that the hardship which the plaintiff would suffer by refusing his application is mitigated by the strong possibility that he could successfully sue his solicitors.  However, in my opinion these factors are outweighed by the conclusions that a fair trial can still be obtained and that the responsibility for the delay lies substantially with the plaintiff's solicitors.

The orders

1. These are the orders:

(1)That the time within which action 906/2008 may be brought is extended to the date of the issue of the writ, namely 13 October 2008.

(2)The application in action 390/2006 is dismissed.