Davie v The State of Tasmania
[2002] TASSC 65
•10 September 2002
[2002] TASSC 65
CITATION: Davie v The State of Tasmania [2002] TASSC 65
PARTIES: DAVIE, Troy Charles
v
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 789/2000
DELIVERED ON: 10 September 2002
DELIVERED AT: HOBART
HEARING DATES: 4 September 2002
JUDGMENT OF: Master S J Holt
CATCHWORDS:
Limitation of actions - Extension of time - Arguable Case - Explanation for delay - Exercise of discretion.
Limitation Act 1974 (Tas), s5.
Aust Dig Limitation of Actions [55]
Torts - Joint or several tortfeasors - Satisfaction.
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635 followed.
Aust Dig Torts [13]
REPRESENTATION:
Counsel:
Plaintiff: J A V Buckley
Defendant: P Turner
Solicitors:
Plaintiff: Butler McIntyre & Butler
Defendant: Director of Public Prosecutions
Judgment Number: [2002] TASSC 65
Number of Paragraphs: 6
Serial No 65/2002
File No 789/2000
TROY CHARLES DAVIE v THE STATE OF TASMANIA
REASONS FOR JUDGMENT MASTER S J HOLT
10 SEPTEMBER 2002
By his writ issued 13 November 2000, the plaintiff claims that the defendant is vicariously liable for damages for personal injuries resulting from negligently administered medical treatment on King Island in November 1996. There is a three year time limit for the commencement of such proceedings[i] subject to the court having a discretion to extend the period for up to a further three years if in the circumstances it is just and reasonable to do so[ii]. This is an extension of time application.
On 8 November 1996, the plaintiff whilst in the course of his employment as a slaughterman at the King Island Meat Company Abattoir injured his right hand. He was using a stun gun which is designed to release a bolt at high velocity for the purpose of stunning animals ready for slaughter. The gun discharged into the palm of his hand causing a contusion type injury. There was also a breaking of the skin. The plaintiff was taken to the King Island Medical Centre where he received treatment from a doctor. The treatment included suturing the wound. According to the plaintiff's medical witnesses the outcome would have been better had there been no sutures. Closing the wound resulted in a build up of fluids and pressure under the skin with a resultant inhibition of blood supply and consequently less healing and compression of the nerves contributing to a less than optimum outcome for the plaintiff. If there had been no sutures fluid from the wound could have drained and the build up of pressure could have been alleviated. Although the plaintiff's expert witnesses conceded that it was not common knowledge amongst general medical practitioners that wounds were often best left unsutured, there was some evidence that the injury was such that there ought to have been immediate referral to a specialist and if this had occurred it was unlikely that the specialist would have inserted sutures. The plaintiff has been left with a functional impairment of his right hand. The defendant does not dispute that it will be vicariously liable if damages are recoverable in respect of the treatment administered. Despite the fact that a body of reputable general medical practitioners would have administered the same treatment a contention that the standard of care was breached by the failure to refer the patient to a specialist cannot having regard to the preliminary nature of the evidence before me be categorised as obviously hopeless[iii].
The plaintiff carries the overall onus of persuading the court that the justice of the case rests with the grant of the extension[iv]. Obviously, a plaintiff who does not demonstrate, at least in an appropriately preliminary way, the apparent viability of his claim cannot expect to persuade the court that any injustice will occur if the time bar is left in place. Here the plaintiff has already taken common law proceedings against his employer in respect of the hand injury. On 10 February 2000 he recovered judgment by consent in those proceedings for $86,176.70 for damages. Full satisfaction is what a plaintiff agrees as such regardless of whether there were other tortfeasors or is what a court has assessed[v]. A plaintiff who has already obtained full satisfaction for his injury against one tortfeasor cannot obtain recovery in respect of the same injury from another[vi]. In addition to this the defendant submits that judgment having been entered and satisfied in respect of the damage arising from the injury against the employer the Wrongs Act 1954, s3(1)(b), precludes further recovery by this action. The plaintiff has not suggested that the earlier judgment was in respect of different damage and so this submission must prevail.
The plaintiff's only contention on the point was that I should infer that the agreed award was inadequate compensation for pain and suffering because of the following extract from some particulars annexed to the plaintiff's affidavit:
"CLAIM
(a)The Plaintiff has received a payment in settlement of his workers compensation and common law claims against his former employer, S.B.A. Foods Pty. Ltd. trading as King Island Meat Company. Components of that settlement sum included payment to the Plaintiff of all past and future medical expenses, earnings loss including superannuation, and special damages.
(b)For the purposes of this claim the Plaintiff seeks a sum to compensate him for general damages arising as a result of his loss of enjoyment of life."
There is no evidence as to the quantum of the claim against the employer and absent that information there is no basis upon which the claim can be compared to the compensation paid and so there is no basis for supposing that there has been less than full compensation for pain, suffering and loss of amenities. In this circumstance the application must inevitably fail.
Even if I had been persuaded that it was arguable that the agreed judgment sum was not intended to be full compensation; that the right to pursue others had been preserved; and that it was arguable that the claim is for damage other than that the subject of the consent judgment I would still not have extended time. Although fault, on the part of the prospective plaintiff in the late institution of proceedings is not necessarily fatal to the application[vii], where the delay is not fully and frankly explained a favourable exercise of the discretion cannot be expected[viii]. Where the court is deprived of the reason for the failure to commence in time it is also deprived of the ability to properly consider where the justice of the case lies making it impossible, except perhaps in extraordinary circumstances, for the plaintiff to satisfy his onus. Here the plaintiff has not given a satisfactory, that is to say, a full and frank explanation for the failure to commence in time. His writ issued out of time because he allowed an earlier writ against the defendant issued within time to go stale. I do not accept his explanation as to why service of the original writ was withheld. The first writ issued on 5 November 1999. In August 2000 the plaintiff said that he met with his solicitor to discuss serving the writ. He said:
"At that meeting we also discussed needing to obtain some further advice about the current state of my condition and whether or not I was performing any work at that time. We also discussed at that meeting that there was further information which needed to be gathered prior to proceedings being instituted and we agreed that we did not want proceedings instituted until we were in a position to be able to provide all documentation requested by the defendant immediately."
In fact on 8 November 1999, a medical specialist had provided an extremely detailed report to the plaintiff's solicitor setting out the nature of the injury and impugning the initial medical treatment as having had a prejudicial effect upon the plaintiff's ultimate outcome. I have not been told what further medical information was required. I have not been told why the solicitor could not have ascertained at that meeting whether or not the plaintiff was then working. The solicitor already had the plaintiff's medical records relating to the initial treatment of his injury on King Island and had acted in the settlement of the workers compensation and common law claims against the employer. I have no idea why there was not already to hand most if not all the discoverable documents. I am left not knowing why instructions did not issue for the service of the writ at the August 2000 meeting. Without that matter having been explained in satisfactory detail I would not be prepared to conclude that the justice of the case rested with lifting the time bar which presently protects the defendant.
For these reasons and notwithstanding that no prejudice is claimed by the defendant, I am unpersuaded that this case is a justifiable exception to the rule that personal injuries actions be commenced within three years. The application is dismissed.
[i] Limitation Act 1974, s5(1)
[ii] Limitation Act 1974, s5(3)
[iii] Rogers v Whitaker (1992) 175 CLR 479
[iv] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544, 547, 551 and 567
[v] Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
[vi] Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
[vii] Knight v Smith (1975) Tas SR 83 at 91
[viii] Hall v Nominal Defendant (1966) 117 CLR 423 at 435
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