Curnow v Roman Catholic Trust Corporation Diocese of Melbourne
[2006] VSC 364
•6 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5336 of 2006
| MARK WILLIAM CURNOW (a person under a disability, by his Litigation Guardian, Stephen Hamilton Curnow) | Plaintiff |
| v | |
| ROMAN CATHOLIC TRUST CORPORATION DIOCESE OF MELBOURNE | Defendant |
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JUDGE: | HANSEN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2006 | |
DATE OF JUDGMENT: | 6 October 2006 | |
CASE MAY BE CITED AS: | Curnow v Roman Catholic Trust Corporation Diocese of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 364 | |
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Limitation of actions - Personal injury – Extension of time within which to bring action - Infant plaintiff injured in 1995 – Limitation period originally to expire in 2013 – Retrospective amendments to legislation in 2003 had effect of barring claim on and from 1 October 2003 – Extent of prejudice to defendant - Factors relevant to exercise of discretion – Limitation of Actions Act 1958, s 27K.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Smith | Arnold Thomas & Becker |
| For the Defendant | Mr S K McGregor | TressCox |
HIS HONOUR:
Introduction
This is an application by Mark William Curnow (“the plaintiff”), by his father and Litigation Guardian, Stephen Hamilton Curnow (“Mr Curnow”), pursuant to s 27K of the Limitation of Actions Act 1958 (“the Act”) for an extension of the period of limitation in respect of a cause of action for damages for personal injury suffered by the plaintiff when, in 1995 as a five year old student at St John Vianney’s, a primary school operated by the defendant, he was struck in the eye by an object thrown by another student. The plaintiff suffered a permanent loss of vision in his right eye. On 23 March 2006 the plaintiff filed a writ alleging that his injury was caused by the defendant’s negligence, including its failure to provide adequate supervision of the students’ activities, and claiming damages. His injuries were particularised as follows:
“Injury to the right eye with severe laceration to the front of the eye, resulting in loss of contents of the eye including vitreal fluid. Resultant severe and permanent loss of vision of the right eye. Associated vulnerability to the development of glaucoma. Pain, suffering and shock.”
It is common ground that the plaintiff’s injury is a “significant injury” within the meaning of s 28LF of the Wrongs Act 1958[1].
[1]This means that an approved medical practitioner has certified, for the purposes of s 28LN of the Wrongs Act 1958, that the degree of impairment resulting from the plaintiff’s injury is more than 5%. The certificate of assessment was served on the defendant who, having failed to respond in writing to the assessment within 60 days, is deemed to have accepted the assessment.
The defendant filed a defence on 31 May 2006 by which it denied negligence, alleged contributory negligence and, further, alleged that in any event the plaintiff’s cause of action is barred by s 27E of the Act because “the date upon which the cause of action was discoverable arose more than 6 years before the commencement of the action”. I refer below to the relevant parts of the legislation.
By a summons filed on 13 July 2006, the plaintiff sought an order that the relevant limitation period be extended pursuant to s 27K of the Act. The application is supported by three affidavits sworn by Mr Curnow and an affidavit sworn by the plaintiff’s solicitor, Anne Shortall.
In opposing the application, the defendant relied on an affidavit sworn by Robert Scanlon, the Principal of St John Vianney’s, and two affidavits sworn by the defendant’s solicitor, Jason Rossiter Newman.
None of the deponents nor any other person gave oral evidence or was cross-examined. The plaintiff was in Court and available to give evidence but counsel for the plaintiff chose not to call him. There were some areas of disputed fact as I refer to below. In addition, counsel for the defendant emphasised that the plaintiff’s version of events surrounding the incident was not direct evidence of the plaintiff but rather a hearsay account, being Mr Curnow’s evidence of what he was told by his son. Nevertheless, counsel accepted that hearsay evidence was admissible, the application being interlocutory in nature[2].
[2]See r 43.03(2) of the Supreme Court (General Civil Procedure) Rules 2005. Counsel for the plaintiff also referred to Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 1) [1987] VR 261.
Background facts
The plaintiff was born on 15 May 1989, and is now aged 17 years. At the time of the incident, 21 March 1995, the plaintiff was aged 5 years.
As to the circumstances of the injury, Mr Curnow deposed as follows. The plaintiff told Mr Curnow that he was playing with a group of boys on or near the school oval. The game involved throwing a key-ring as far as possible and then running to get it. Attached to the key-ring was a Hawthorn Football Club plastic hawk mascot with a long, sharp beak. The boys played the game for a number of minutes[3] without any teacher intervening to prevent this activity. In the course of the game the key-ring was thrown and struck the plaintiff in the eye. The plaintiff was then taken to the school sick bay by a teacher whose identity the plaintiff does not remember. Mr Curnow was contacted and attended at the school as soon as possible. He was told by Ms Colleen Minio, the Vice-Principal, that the plaintiff’s injury appeared to be a small cut which she did not think was very serious. No medical attention had been obtained at that time. However, on inspecting the eye he could see there was blood and thought the injury was more severe than the school thought. Mr Curnow immediately drove the plaintiff to a General Practitioner, Dr D Warnock, who examined the plaintiff and immediately arranged for an urgent admission to the Eye and Ear Hospital. Mr Curnow immediately drove the plaintiff to the Hospital where he received medical attention.
[3]Counsel for the defendant noted that in his affidavit sworn 24 August 2006 Mr Curnow said “the game had been going on for some time”. Counsel said it was not clear whether anything turned on the difference in expression. In my view, nothing turns on the difference.
Mr Curnow stated that, as a result of the injury, the plaintiff has lost the vast bulk of vision in his right eye. The plaintiff was absent from school for three months and suffered severe psychological reaction, both as a result of his injury and as a result of the reaction of other children when he went back to school.
Mr Curnow exhibited to his affidavit a report dated 19 December 2005 from Dr James Elder of Melbourne Children’s Eye Clinic to the plaintiff’s solicitors. Dr Elder first examined the plaintiff in September 1995 when the case was transferred to him by the Eye and Ear Hospital. After setting out the relevant clinical history, Dr Elder summarised the plaintiff’s diagnosis as:
“a.Severe penetrating injury; right eye, with extensive corneal scarring.
b.Severe loss of vision, right eye.
c.Anterior iris synechiae (adhesions of the iris to the inner cornea).
d.Traumatic cataract.
e.Secondary convergent squint.”
Dr Elder stated that the plaintiff is reviewed on a two yearly basis, as his right eye is comfortable and he is not concerned about cosmesis. It is possible that in the future he may require surgery to improve his ocular alignment. He may wish to be fitted with a cosmetic contact lens to improve the appearance of his eye, and there is a small chance he may develop degenerative changes in his eye. These may include glaucoma (raised pressure) or ultimately phthisis (shrinkage of the eye) although there was no evidence of those problems. He gave an estimate of the costs of future treatment and advised that the plaintiff’s vision had stabilised with no likelihood of improvement. He concluded that the prognosis for his vision was poor.
In approximately May or June 1997 Mr Curnow sought legal advice from a firm of solicitors, Kenna Croxford & Co, in relation to the plaintiff’s injuries. As part of that process, the plaintiff and his father were referred to a barrister with whom they had an interview. During the interview, the plaintiff became very frightened and distressed. Mr Curnow described the plaintiff as “psychologically very fragile in any event at that time, as a result of his injuries, and my wife and I were anxious not to upset him further if it were not absolutely necessary to do so”.
Mr Curnow was advised by the solicitor (correctly[4]) that an action for personal injury could be commenced against the school at any time up to six years after the date of the plaintiff’s 18th birthday, that is at any time up to 15 May 2013. Mr Curnow deposed that “Accordingly, we thought that we should wait until Mark had matured and was able to deal with the stresses of litigation”.
[4]Counsel conceded that this advice was correct. I explain below why the advice was correct in terms of the legislation as it then stood.
Unbeknown to Mr Curnow, the Act was amended in 2003, the amendments coming into effect on 21 May of that year. I refer below to the amendments in detail. For present purposes it is sufficient to say that the effect of the amendments was that the plaintiff could have commenced his action at any time up to 1 October 2003, but on and from that date his cause of action was barred.
In approximately November 2005 Mr Curnow was consulting Goddard Elliott solicitors in relation to matters unrelated to the plaintiff’s injuries when, in the course of discussion, he was advised that the time limit to issue proceedings in personal injury matters had changed and that he should seek the advice of specialist personal injury solicitors. He was referred to his present solicitor, Ms Anne Shortall of Arnold Thomas & Becker. Mr Curnow contacted her in late November to arrange an appointment, and first saw her on 1 December 2005.
Ms Shortall deposed that the plaintiff’s father instructed her to act on that day. On 12 December 2005 she requested the medical records from the Eye and Ear Hospital, and requested medical records and a report from the plaintiff’s treating General Practitioner and the plaintiff’s specialist Dr Elder. She also wrote to Kenna Croxford & Co, requesting the plaintiff’s file. Finally, she wrote to the Catholic Church Insurances Ltd advising that she acted for the plaintiff and was instructed to pursue a claim on his behalf.
On 14 December 2005 Kenna Teasdale Lawyers (as Kenna Croxford & Co were then known) responded by letter, stating that they did not have any record of acting for the plaintiff. A further letter from Kenna Teasdale dated 20 January 2006 stated that “…the file has been destroyed and we cannot help you any further”.
On 23 January 2006 Ms Shortall returned from annual leave. On 24 January 2006 she briefed counsel to draw a statement of claim On or about 31 January 2006 Ms Shortall requested funding from Mr Curnow to obtain medical reports and pay the fee on filing the writ. Due to financial difficulties suffered by Mr Curnow that funding had not been provided when Ms Shortall swore her affidavit on 24 August 2006. In the circumstances Ms Shortall’s employer funded the costs.
Counsel duly returned a statement of claim to Ms Shortall on 15 February 2006. On 21 February 2006 the defendant’s insurer wrote advising that it was making enquiries concerning the accident. The writ was filed on 23 March 2006 and served on the defendant on 6 April 2006. Subsequently, Dr Elder signed a Certificate of Assessment certifying that the degree of impairment resulting from the plaintiff’s injury is more than 5%. The Certificate was served on the defendant on 26 May 2006 and, for the reasons set out earlier, the plaintiff is deemed to have a “significant injury”.
On or about 31 May 2006 Ms Shortall received the defence. On about 5 June 2006 she briefed counsel to draw the present summons and affidavit in support. On or about 4 July 2006 she received the summons and affidavit from counsel. As mentioned earlier, the summons was filed on 13 July 2006.
I now turn to set out the somewhat contradictory affidavit evidence as to the identity and availability of witnesses to the incident. Counsel focused on this issue as it went to the question of the nature and extent of the prejudice likely to be suffered by the defendant if the limitation period were extended.
In his affidavit sworn on 21 August 2006 the principal of St John Vianney’s, Robert Scanlon, deposed to the following matters. He was principal at the school at the time of the incident. From school records, he had ascertained that there were two yard duty teachers in the area where it is alleged the plaintiff was injured. One was a teacher’s aid who worked at the school until August 2003 but who died in January 2004, while the other, Rosemary Keir[5], left the school on 30 June 1998. He deposed that “The school has no knowledge of her current address. I am instructed by my solicitors and believe that attempts have been made to contact Rosemary Keir to speak with her in relation to the circumstances of the accident however, they have not been able to contact her to date”. The school did not take any statements from the yard duty teachers following the accident. Mr Scanlon said that the defendant was prejudiced “in that it has no knowledge and is unable to ascertain the yard duty teacher’s version of events surrounding the incident”. The school did have a system in place at the time of the accident where a “yard duty book” was used to record incidents which occurred in the playground, but the yard book has since been destroyed, at a date unknown to Mr Scanlon. He recalled that Mr Curnow contacted the school approximately five years after the incident to make further investigations and “we provided him with a copy of the accident report”. Following the investigations, Mr Curnow again contacted the school and indicated that he did not intend to pursue the matter further. The school retained the key ring which it is alleged hit the plaintiff for a number of years however, as no further action had been taken by the plaintiff for many years the key ring was thrown out, at a date Mr Scanlon could not recall. Further, a search of the school records has ascertained that it holds no documentation which provides details of the other students who were playing with the plaintiff at the time of the incident or who threw the key ring as alleged. In short, given the lapse of more than 11 years since the incident and approximately six years since the school had had contact with the plaintiff or Mr Curnow, the school has no records in relation to the incident save for the accident report form, and is currently unable to obtain a statement from the yard duty teacher or any student who witnessed the incident. In the circumstances, there will be extensive prejudice to the defendant if the limitation period is extended.
[5]It appears that her correct name is Rosemarie Keir, although nothing turns on the spelling of her first name.
On 24 August 2006 Mr Curnow swore a further affidavit, in which he responded to Mr Scanlon’s affidavit. First, as to the whereabouts of Mrs Keir, her telephone number and home address (which he stated) were listed in the White Pages. He attempted to contact Mrs Keir by telephone on 22 August 2006 but the phone was not answered. He attended the premises that evening and nobody was home, but a young man who lived in the neighbouring property advised that Mrs Keir is his mother, that she lives next door and did teach at St John Vianney’s in 1995. The young man also advised Mr Curnow that Mrs Keir now teaches at another catholic school in the Melbourne Archdiocese being the Holy Eucharist Primary School at Malvern. Secondly, as to the time at which he contacted St John Vianney’s to make further investigations, Mr Curnow deposed that he did this at the time Kenna Croxford & Co were acting for the plaintiff, which was in or about August 1997, approximately two years after the date of the accident rather than the approximately five years stated by Mr Scanlon. Thirdly, he did not advise Mr Scanlon that he did not intend to pursue the matter. Fourthly, as to the school having retained and then thrown out the key ring, Mr Curnow, who often dropped the plaintiff at school and collected him, observed a school bag with a Hawthorn Football Club key ring hanging from it. The plaintiff advised him that the schoolbag belonged to Timothy Collins or Chris Collins and the key ring was (or was identical to) the one which had caused the injury. Further, three of the students who were involved in and witnessed the incident are Timothy Collins, Chris Collins and Darren Kennett.
On 5 September 2006, the defendant’s solicitor, Jason Rossiter Newman, swore an affidavit. He exhibited correspondence he had sent to the plaintiff’s solicitor (to which he had received no reply at the time of swearing the affidavit) giving notice that the defendant would apply to have certain paragraphs of Mr Curnow’s affidavits struck out on the basis that they did not comply with Rule 43.03(2) of the Supreme Court (General Civil Procedure) Rules 2005. In essence, the complaint was that in giving hearsay evidence as to the incident, the deponent did not identify the nature and source of the statements of information and belief contained therein. Mr Newman also exhibited to his affidavit a copy of an accident report dated 21 March 1995, completed by Colleen Minio regarding the accident. This is the report which Mr Scanlon referred to in his affidavit.
It is to be noted that the accident report is on a form headed “Catholic Church Insurances Ltd” and at the foot thereof is a direction that “In case of serious injury top copy to be forwarded to Catholic Church Insurances Ltd. Otherwise completed forms to remain in book.” The form was completed with the following details: name of the school, and the name, age, grade and address of the plaintiff; the accident was on 21 March 1995 at 11.00am on the oval; brief details of the accident were “Hit in eye with child’s key ring (football mascot); the injuries were “Cut from inner corner of right eye approx. 1 cm to below centre eye. Some secondary bleeding suspected from within lower lid”; treatment is simply stated as Eye and Ear Hospital; and “Findings (if known)” as “Loss of sight in effected eye. May gain some sight in future”; the form then requested the identify of witnesses as to which “Rosemarie Keir (teacher) was written; then Ms Minio and Mrs Cathy Clarke were identified as teachers in the sick bay. Finally, it was indicated that the teacher (Sue Grose) and the plaintiff’s father had been notified. I interpolate that there was no evidence before the Court as to whether the accident report had been provided to Catholic Church Insurances Ltd.
Mr Newman swore a further affidavit on 5 September 2006, in which he deposed to matters concerning the availability of Mrs Keir and other witnesses. On 1 September 2006 Mr Newman received an e-mail from Talei Wright, Senior Loss Adjustor with Echelon Australia Pty Ltd. Ms Wright informed Mr Newman that she had telephoned Mrs Keir’s place of employment on four or five occasions between March and August 2006, and had left messages containing her contact details and requested that Mrs Keir return her call on each occasion. Mrs Keir did not return any of Ms Wright’s calls until 28 August 2006. Ms Wright then met with Mrs Keir and obtained a signed statement from her on or about 31 August 2006. Ms Wright had informed Mr Newman that Mrs Keir was a teacher on duty at St John Vianney’s school on 21 March 1995 when the plaintiff suffered the injury to his eye. Mr Newman had not seen a copy of Mrs Keir’s statement at the time of swearing the affidavit. On about 1 September Ms Wright met with Timothy Collins, who was one of the students playing with the plaintiff at the time of the incident, and obtained from him “a copy of a signed statement previously provided to [Mr Curnow]”. Mr Newman had not seen a copy of Timothy Collins’ statement at the time of swearing the affidavit. Finally, Ms Wright had not yet spoken to the other two student witnesses, Chris Collins and Darren Kennett, although she had left messages for them to return her calls.
On 6 September 2006 Mr Curnow swore a further affidavit. He deposed that he had not seen the “accident book” (which clearly is a reference to the accident report) exhibited to Mr Newman’s affidavit until it was shown to him by his solicitor following service of the affidavit. Thus, Mr Scanlon was incorrect in saying that he was given a copy of the accident report. He also denied Mr Scanlon’s statement that he (Mr Curnow) had contacted the school and indicated that he did not intend to pursue the matter. At no time did he say to any person connected with the school that he did not intend to pursue the matter further.
The legislation
It is now convenient to refer to the relevant legislation in some detail.
Before the amendments made to the Act in 2003, the plaintiff’s position was as follows. Being a minor, the Act treated him as a person under a disability. Under s 23, the relevant limitation period did not expire until six years after the date when he ceased to be under a disability; that is six years after the date of his 18th birthday, namely 15 May 2013.
Unknown to the plaintiff and his father, the position changed when the Act was amended by the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003[6] which inserted a Part IIA in the Act, entitled “Personal Injury Actions”. The relevant sections in the new Part IIA provide as follows:
[6]Act No. 60 of 2003. The relevant sections of the amending act commenced to operate on 21 May 2003.
“27E. Limitation period for personal injury actions – persons under a disability
(1)This section applies to a cause of action to which this Part applies which is founded on a personal injury to a person who was under a disability at the date of the act or omission alleged to have resulted in the personal injury.
(2)An action in respect of a cause of action to which this section applies shall not be brought after the expiration of whichever of the following periods is the first to expire –
(a)the period of 6 years from the date on which the cause of action is discoverable by the plaintiff;
(b)the period of 12 years from the date of the act or omission alleged to have resulted in the personal injury with which the action is concerned.
27F.Date cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts -
(a)the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) …
(3) …
(4) …”
As counsel for the plaintiff noted, Part IIA introduced the concept of a limitation period commencing to run when the cause of action became discoverable. While previously the limitation period would not begin to run against a person injured as a child until that person reached the age of 18, the amendments mean that the limitation period will begin to run as soon as the cause of action is discoverable, unless the person is under a legal incapacity as provided in s 27J. The effect of s 27J is that a minor is not under a legal incapacity “while the minor is in the custody of a capable parent or guardian”. In the present case, it is agreed that the plaintiff is not under a legal incapacity.
A transitional provision, s 27N, was inserted in the Act. Section 27N(1) provides that the new Part IIA applies to causes of action where the act or omission that resulted in personal injury occurs on or after 21 May 2003. On that basis the new provisions did not apply to the incident that gave rise to the plaintiff’s action. But s 27N(2) provides that “On and from 1 October 2003” the new Part IIA applies to causes of action where the act or omission that resulted in personal injury occurred before 21 May 2003. In effect, the amending legislation gave the plaintiff (and others in the same position) a period from 21 May to 1 October 2003 in which to bring an action in respect of his cause of action. If no action was so brought, on 1 October 2003 the new Part IIA applied retrospectively. In this case, it is common ground that the plaintiff’s action was brought more than six years from the date on which the cause of action was discoverable by the plaintiff. Counsel for the plaintiff conceded that the cause of action was probably discoverable in 1997 when Mr Curnow sought legal advice from Kenna Croxford & Co. Hence, by reason of s 27E the limitation period expired in 2003 at the latest.
The Court can extend the limitation period even though the period of limitation has already expired[7]. The relevant provisions are as follows:
[7]Section 27M(1)(a).
“27K. Extension of limitation periods
(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2)Subject to section 27L, the court -
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3) …
27L.Matters to be considered in determining applications for extension of limitation period
(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following -
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in sub-section (1) include the following –
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b)the nature and extent of the plaintiff’s loss; and
(c)the nature of the defendant’s conduct.
(3) …
(4) …”
Counsel addressed the above criteria in light of the relevant background facts.
Submissions
Plaintiff
Counsel submitted that in all the circumstances it was just and reasonable to extend the limitation period. He referred to the Second Reading Speech for the amending legislation where the Premier stated that “The government recognises that the transitional arrangements may have an adverse impact on persons who suffered an injury prior to 21 May 2003 and who do not, for whatever reason, commence proceedings before 1 October 2003”[8]. The present case was precisely this. Further, the Premier said, it was recognised that “In the interests of justice the court will retain a discretion to extend any of the limitation periods set out in Part IIA”[9].
[8]Hansard, Legislative Assembly, 21 May 2003, p 1785.
[9]Ibid.
As to the factors in s 27L(1), counsel submitted the following. As to the length of and reasons for the delay, counsel submitted that there was some difficulty as to identifying the relevant period of delay; while on the one hand October 2003 might be taken as a starting point, he referred to authorities for the proposition that one must look at the delay overall, between the date the cause of action arose and the date of issue; in this case, from 1995 to 2006. The plaintiff’s father sought and received correct legal advice within about two years from the accident, to the effect that the plaintiff could bring his claim at any time on or before 15 May 2013. Mr Curnow, not unreasonably, considered it appropriate to wait until the plaintiff had matured and was better able to cope with the stresses of litigation. It was understandable that the plaintiff was upset by the injury and self-conscious of his injury. It was perfectly understandable that a parent in those circumstances would not bring legal proceedings and thus further draw the child’s attention to the fact of the injury, at least if it was not necessary to do so at that stage. Further, the effect of the loss of vision on the plaintiff’s academic achievement, employment opportunity, and recreational activities would be far clearer then than it would have been in 1997.
The plaintiff’s father only became aware that the law had changed in late 2005, well within the original limitation period. It would not be reasonable to expect the plaintiff or his father to make ongoing enquiries of Kenna Croxford & Co. Nor was there any ongoing duty on Kenna Croxford & Co to keep the plaintiff up to date on changes to the law. Even if the firm was to blame for not advising Mr Curnow of the changes to the law, the sins of the solicitors should not be visited upon the client in circumstances where the client not unreasonably leaves the matter in the hands of apparently competent solicitors. When Mr Curnow became aware of the amendments, he promptly sought legal advice, which led to the bringing of the proceeding and, following the defence, the present application.
As to the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant, counsel submitted the following. There is likely to be minimal if any prejudice to the defendant. The defendant still has the “accident report”, bearing the date of the accident, in addition to the “school records” to which Mr Scanlon referred in his affidavit. Although the “yard duty book” was destroyed, Mr Scanlon did not explain what information that book was likely to have contained additional to that in the contemporary accident report. Similarly, there is no suggestion that the school has been prejudiced by its disposal of the key ring which caused the injury. The witnesses could adequately describe the item.
Further, while Mr Scanlon states that from the school records he ascertained that there were two teachers on yard duty in the area of the accident, the accident report only identifies one teacher witness, namely Mrs Keir. She is alive and well and apparently still teaching in the employ of the defendant. Further, she has provided a signed statement to a loss adjuster retained, the Court should infer, by the defendant or its insurer. There is no suggestion that Mrs Keir is unable to recall the relevant events. The contents of Mrs Keir’s statement are not before the Court and it can be inferred that if it contained any indication of prejudice to the defendant, that evidence would have been placed before the Court. Similarly, the defendant knows the identity of the three boys who were playing with the plaintiff at the time of the accident. The loss adjuster has a signed statement from Tim Collins which also has not been placed before the Court. There is no suggestion that the statement indicates prejudice to the defendant. Although the loss adjuster has not yet been able to speak to the other two boys, there is no suggestion that they will not be able to give evidence at trial. Regardless of any question of delay, the fact remains that the defendant cannot oblige prospective witnesses to speak with them before the trial.
Counsel emphasised that the facts here are quite different from cases where the effluxion of time makes it difficult if not impossible for a defendant to assess what injuries have been caused by its tortious conduct. In contrast to the psychiatric injury allegedly suffered by the plaintiff in Clark v McGuinness[10] the nature of the plaintiff’s injuries here is non-contentious. The defendant can have the plaintiff’s eyesight tested if it wishes to do so. The real issue in the case is whether there was adequate supervision of the children playing. There is no suggestion from Mr Scanlon that he does not know what systems of supervision were in place in March 1995, or that the defendant will be unable to call evidence from educational experts as to what would constitute an appropriate level of supervision in the circumstances.
[10][2005] VSCA 108 at [27], [47] and [50].
Even if the defendant were to suffer prejudice as a result of the extension, that is not determinative. It is merely a factor to consider in the overall balance.
Counsel then addressed the remaining factors in s 27L(1). Paragraph (c) was not relevant. As to (d), the plaintiff was and still is an infant. The plaintiff himself could not be expected to play any role in the decision as to who, when or if to sue. As to (e), the cause of action was discoverable probably in 1997, but that has no relevance here. As to (f), counsel said that the plaintiff’s father acted promptly and reasonably in initially seeking legal advice and again once he learned of the change to the law. And although the paragraph refers to action taken by “the plaintiff”, the legislature seemed to have forgotten that in a case like the present the relevant person would be the responsible adult looking after the plaintiff. As to (g), the plaintiff received correct advice that he had until May 2013 to bring proceedings.
As to s 27L(2), counsel said the following. The matter in (a) was dealt with by the earlier submissions as to prejudice. As to (b), the plaintiff’s injury was very serious. As to (c), counsel conceded that it was debatable what was meant by “the nature of the defendant’s conduct”, but submitted that the Court is entitled to take into account the conduct of the defendant’s insurers and solicitors. As to this, he submitted that certain paragraphs in Mr Scanlon’s affidavit as to the whereabouts of Mrs Keir were a deliberate attempt to mislead the Court, in giving the impression that Mrs Keir could not be found when, as evidenced by the affidavits of Mr Newman, the defendant knows where Mrs Keir is. Counsel accepted that “it’s not a killer point and I don’t pretend it is” yet it was something the Court was entitled to consider under s 27L(2)(c).
Defendant
Counsel agreed with the plaintiff’s submissions as to the operation of the legislation. He submitted that the defendant was seriously prejudiced in responding to the plaintiff’s claim because of the loss of evidence, the paucity of the plaintiff’s evidence, the absence of witnesses and the effluxion of time.
Counsel began with some propositions of law, namely that the plaintiff bears the onus of proof, as to which he referred to Burk v The Commonwealth (No 2)[11] where Bongiorno J discussed[12] the relevant authorities, including the decision of the Court of Appeal in Tsiadis v Patterson[13] and the decision of the High Court in Brisbane South Regional Health Authority v Taylor[14]. Counsel drew attention to the statement of McHugh J in Brisbane South that[15]:
“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”
[11][2002] VSC 464.
[12]At [15].
[13](2001) 4 VR 114.
[14](1997) 186 CLR 541.
[15]At 553.
Counsel referred to the general prejudice that arises with the elapse of a number of years. He referred to the statement of McHugh J in Brisbane South that[16]:
“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.”
Counsel submitted that the present was such a case, with the elapse of 11 years putting the defendant in a difficult position to identify what is no longer there, or in effect to prove a negative. He referred to the decision of Young CJ in Tavsanli v Philip Morris (Australia) Ltd[17] where his Honour refused an application for an extension of time sought 10 years after a workplace accident and to the statement in the course of his reasons that “No particular prejudice has been shown but the delay itself is in total sufficiently long to infer substantial prejudice”.
[16]At 551.
[17]Unreported, Supreme Court of Victoria, Young CJ, 18 September 1989.
Counsel then referred to specific prejudice in the present case, arising as one of the factors to consider in s 27L(1)(b). First, real evidence had been lost, namely the key-ring and the “yard book”. The latter was a significant document and “one would imagine that would be crucial to experts coming back over the scene, and trying to work out what the appropriate standard of care was here”. The content of the yard book would now never be known. Secondly, one supervising witness had died, although counsel conceded from the bar table that he had been instructed that the surviving witness, Mrs Keir, does recall the incident. Thirdly, the defendant was able to speak to one of the three child witnesses and obtain a statement from him (although counsel was not sure whether he recalled the incident), but had not been able to speak to the other two child witnesses. Fourthly, the plaintiff has not given direct evidence on affidavit of the incident, which might have assisted the defendant to overcome the prejudice. And although the hearsay account of the incident provided through Mr Curnow was the usual course on an interlocutory application, the fact remained that the defendant did not have the benefit of the plaintiff’s (better) direct evidence. Fifthly, there were no contemporaneous eye-witness statements. Indeed, the affidavits revealed conflicting recollections as to relevant events. For example, Mr Scanlon recalls giving Mr Curnow a copy of the accident report, which Mr Curnow denies. Also, Mr Scanlon recalls that Mr Curnow contacted the school and indicated that he did not intend to pursue the matter further, which Mr Curnow denies. Further, there is the matter of the length of time during which the boys were playing, referred to at [7] and in foot note 3 above.
Sixthly, the writ makes a claim for injury, particulars of which include pain, suffering and shock, and Mr Curnow deposes as to his belief that the plaintiff suffered psychological injuries, yet there is no evidence of any actual psychological treatment history, or psychological injury, apart from the evidence as to the plaintiff’s distress during the interview with the barrister. Nor did the defendant have notes or reports from the Royal Victorian Eye and Ear Hospital or the original treating surgeon, Dr Barry Nicholls, or notes or reports from the plaintiff’s General Practitioner. The report of Dr Elder, exhibited to Mr Curnow’s affidavit, refers to an optometric assessment of the plaintiff done before the accident and which documents normal vision in both eyes, but the defendant does not have a copy of that assessment.
Seventhly, the defendant is prejudiced in its ability to investigate the plaintiff’s claim for economic loss as there is a lack of specific allegation in the statement of claim. Also, the defendant has not been provided with relevant material such as a vocational assessment, or evidence as to the plaintiff’s career intentions, or a secondary school record regarding his aptitude.
As to the other factors in s 27L, counsel noted as to s 27L(1)(c) that although the matter was disputed, Mr Scanlon had deposed that he provided a copy of the accident report to Mr Curnow. In short, there was no assistance sought by the plaintiff of the school which was refused. As to s 27L(1)(d) counsel accepted that the plaintiff’s age was his disability, but said that there was no material as to the plaintiff suffering a psychological disability that prevented the earlier bringing of the case. As to s 27L(1)(g) counsel noted that the legal advice received by the plaintiff’s father was correct at the time. As to s 27L(2)(b) the plaintiff had provided a paucity of material as to the nature of his loss, namely the medical report of Dr Elder which only dealt with one aspect of his loss. As to s 27L(2)(c), counsel submitted that the conduct of the defendant in the drafting of the affidavit as to the whereabouts of Mrs Keir lay outside the scope of the provision, but even if it was a relevant factor, the affidavit was carefully worded and not inaccurate.
Counsel submitted that although the legislature acknowledged that retrospective amendments to the Act would be harsh on certain plaintiffs such as the present one, the amendments represented a policy decision as to what was thought to be an appropriate balance between the rights of individuals and the need to ensure the availability of insurance.
Finally, although he did not press it strongly, counsel submitted that the plaintiff’s remedy was to sue Kenna Croxford & Co and that whether or not the plaintiff has a remedy against the firm is a relevant factor for the Court to consider in deciding whether to extend the limitation period; see Tsiadis v Patterson[18].
[18](2001) 4 VR 114 at 121, [27] per Buchanan JA.
Decision
It is convenient to deal at the outset with the last point raised above. In my view there is no support in the facts for the proposition that the plaintiff has a remedy against Kenna Croxford & Co. The firm provided Mr Curnow with correct advice in 1997. There is no suggestion, and no basis on which to suggest, that the firm was under an ongoing retainer to keep Mr Curnow updated on the state of the law. On the facts presented, there was no duty on the firm to advise Mr Curnow in 2003 as to the amendments to the Act.
I now consider the factors in s 27L.
As to s 27L(1)(a), the length of and reasons for the delay on the part of the plaintiff, I note the following. As to the length of the delay, I note the frank concession of counsel for the plaintiff to the effect that delay must be looked at overall between 1995 and 2006 and not just between the time the limitation period expired and the time of issue. In that sense, there was a delay of two years between the time of the accident and the time when Mr Curnow sought legal advice. After receiving correct legal advice in 1997, to the effect that the plaintiff could wait until 2013 to bring a claim, Mr Curnow took no further steps until 2005. But in light of the circumstances obtaining at the time he received the advice from Kenna Croxford & Co, to which sufficient reference is made in the plaintiff’s submissions above, Mr Curnow made a reasonable decision not to pursue litigation at that stage. He only became aware that the limitation period had been amended retrospectively in late November 2005, which was still within the original limitation period. He then acted promptly in obtaining advice and issuing the present proceeding. It might be said that the legislature gave the plaintiff a window of opportunity (between 21 May and 1 October 2003) to issue his proceeding, but that assumes that the plaintiff’s father was aware of the situation. He was not. In my view, any delay in this case was minimal and understandable in the circumstances.
As to s 27L(1)(b), namely the question of prejudice, I have regard to everything that counsel said and the written submissions. It is true that some evidence has been lost, namely the key ring and the yard book. As to the yard book, its contents are not known. However, the defendant has provided no evidence as to what it is that might be expected to have been found in the book additional to that in the accident report. In my view, it is not unreasonable to suppose that anything significant in the yard book would have been included in the accident report. As to the key ring, the defendant did not say what it was about the key ring that made it necessary to its defence. There is no suggestion that an equivalent key ring could not be obtained, or at least the relevant specifications ascertained, or the key ring otherwise described by witnesses. In my view any consequential additional time and expense that might be caused to the defendant is relatively minor considered as a matter of prejudice.
It is to be noted that apart from the accident report, the defendant did not take any statements from persons who Mr Scanlon referred to as the yard duty teachers at the time of the incident. The failure to take statements at the time is prejudice entirely of the defendant’s own making. It was a failure in circumstances of an evidently serious injury. The failure had nothing to do with any conduct of the plaintiff or the lapse of time. At the time of the accident, it must be taken that the defendant knew that the plaintiff had until 2013 to sue. Even with the amendments, the plaintiff had until 1 October 2003 to sue, yet at no time between 1995 and 2003 did the defendant obtain a statement. It chose not to do so. Moreover Mr Scanlon’s reference to the yard duty teachers is to be considered in light of the fact that the accident report identified only Mrs Keir as a witness. It does not refer to the deceased teacher’s aid.
As to the availability of witnesses, I note that Mrs Keir is said to recall the incident and that she is available to give evidence. She has provided a signed statement to a loss adjuster associated with the defendant. The contents of Mrs Keir’s statement were not in evidence but, as counsel for the plaintiff submitted, it can be inferred that if it contained any indication of prejudice to the defendant, the evidence would have been before me. Also, the defendant knows the identity of the three boys said to have been playing with the plaintiff at the time of the accident. The loss adjuster has obtained a signed statement from Tim Collins and there is no suggestion that it indicates prejudice to the defendant. Although the loss adjuster has not yet been able to speak to the other two boys, there is no suggestion that they will not be able to give evidence at trial. I note that counsel for the defendant did not request that the hearing be stood over until they were interviewed. Finally, I note that the accident report identifies two teachers as present in the sick bay. Regarding the circumstances overall I am not satisfied that there is or is likely to be substantial prejudice to the defendant in terms of relevant witnesses being unavailable to give evidence or suffering inadequate memory.
As to s 27L(1)(c), (d) and (e), it is sufficient to refer to what counsel said about these matters above.
As to s 27L(1)(f), I note counsel for the plaintiff’s observation that the provision is drafted in terms of considering the extent to which the plaintiff acted promptly and reasonably, even though the provision applies to cases such as the present where the plaintiff was five years old at the relevant time. Nothing turns on this. Where the plaintiff is a minor the relevant acting must be that of his or her parent or guardian, together with any relevant acts of the minor. That is consistent with the fact that the limitation period runs against a minor only where the minor is in the custody of a capable parent or guardian. In this case the plaintiff acted by his father. For the reasons mentioned in the discussion on s 27L(1)(a), I am of the view that Mr Curnow acted reasonably and promptly in relation to seeking advice, both in 1997 and again in 2005 upon discovering that the law had changed.
As to s 27L(1)(g), I reiterate what I have said above, and add that there was no suggestion that the plaintiff and his father had not sought appropriate advice.
In the above discussion I have borne in mind the factors in s 27L(2). I do not find it necessary to say anything as to the interpretation of s 27L(2)(c) which was raised in the course of the submissions. The point arose out of the plaintiff’s contention that Mr Scanlon’s affidavit was misleading. Whatever impression the affidavit gave, or was intended to give, it ultimately became clear that Mrs Keir could give evidence. I do not take any misleading impression into account in determining the application.
I have regard to all of the factors set out above and all that counsel said. The question I have to decide is whether, in all the circumstances and having regard to the factors in s 27L, it is just and reasonable to extend the period of limitation. That is to be determined on a consideration of the facts and circumstances of the case considered overall. In addition to the factors discussed above, it is important to bear in mind the nature of the injury in this case. It is, essentially, a physical injury which depends on objective medical examination[19]. Although the writ refers to shock, the main issue is physical rather than psychological injury. In my view the defendant will not be unfairly prejudiced in its ability to have access to an independent and objective medical evaluation of the plaintiff’s injury.
[19]Burk v Commonwealth (No 2) [2002] VSC 464 at [69].
In all the circumstances and for the reasons stated above, I am of the view that the limitation period applicable to the plaintiff’s cause of action should be extended to 24 March 2006, pursuant to s 27K of the Act. I will hear counsel on the form of the order and as to costs.
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