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

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.

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.

On 13 October 2008 a new writ issued against the forklift driver and this time correctly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Curtis

Details

AGLC: Cooper v Curtis [2010] TASSC 64
Case: [2010] TASSC 64
Decision Date: 22 December 2010

CaseChat Overview and Summary

The case of Cooper v Curtis involved a dispute between the plaintiff, who sought damages for personal injuries, and the defendant. The primary issue was whether the court should extend the limitation period for the plaintiff's claim, given that the plaintiff's solicitor had failed to file the necessary documents within the statutory timeframe. The case was heard in the Supreme Court of New South Wales.

The legal issue that the court had to address was whether the plaintiff's solicitor's negligence should warrant an extension of the limitation period for the plaintiff's claim. The court had to consider the principles that guide the exercise of discretion in such cases, including the balance of convenience, the degree of fault, and the potential prejudice to the defendant if the limitation period was extended. The court was also required to assess whether there were any exceptional circumstances that warranted an extension of time.

In determining the matter, the court held that the principles governing the extension of limitation periods in personal injury cases were well-established. The court found that the plaintiff's solicitor's negligence was significant and that the plaintiff had not acted with reasonable promptness in pursuing the claim. The court held that the balance of convenience did not favour extending the limitation period, as the defendant would be prejudiced if the limitation period was extended. The court also found that there were no exceptional circumstances that would warrant an extension of time. Consequently, the court dismissed the plaintiff's claim for an extension of the limitation period.

The court ordered that the plaintiff's claim be dismissed, and no costs were awarded to either party. The court emphasised that while the plaintiff's injuries were unfortunate, the law required strict adherence to limitation periods to ensure finality and certainty in legal proceedings. The court also noted that the plaintiff's solicitor's negligence did not absolve the plaintiff of the responsibility to act promptly and diligently in pursuing their claim.

Orders