LIMITATION OF ACTIONS – Personal injury – Application to bring claim for common law damages out of time – Substantial delay in bringing claim – Prejudice - Fair Trial- Limitation of Actions Act 1958 s 23A – Application allowed.
LEGAL PRACTITIONERS – Filing additional material or submissions without application or leave.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr A Ingram with Mr G Worth
Slater & Gordon
For the Defendant
Ms R Annesley QC with Ms R Kaye
Transport Accident Commission
HIS HONOUR:
Introduction
The plaintiff, Dianne Davies, was involved in a motor vehicle collision in November 1995. Her car, whilst stationary at the traffic lights at the intersection of Williamsons Road and Westfield Drive Doncaster, was struck from behind by a car driven by the defendant, Judy Nilsen.
Ms Davies asserts that she now suffers from debilitating injuries (particularly to her left knee and back) as a result of that collision, and wants her claim against Ms Nilsen to proceed to trial next year.
However, Ms Davies took no steps to prosecute her case against Ms Nilsen for common law damages until late 2007. Her claim was statute-barred in November 2001. Before her case proceeds to trial, Ms Davies must satisfy the Court that it should grant her leave to bring her claim out of time, pursuant to s 23A of the Limitation of Actions Act 1958 (Limitation Act).
Part of the explanation for this claim taking so long to get close to a hearing is the serious injury process laid down by s 93 of the Transport Accident Act 1986. Ms Davies failed in her application before a County Court judge in September 2013 for leave to make a claim for common law damages. Subsequently, the Court of Appeal overturned that decision in November 2014,[1] and the present writ was issued a fortnight later.
There are three substantive issues which counsel for Ms Nilsen says should result in the dismissal of this application and the inevitable entry of judgment in favour of her client:
(a) that Ms Davies must have known prior to the cut-off date in November 2001 that she had common law rights which were governed by a limitation provision, and that for reasons best known to herself chose not to exercise them until she consulted her current solicitors in 2007;
(b) the length of time since the subject accident has given rise to both general prejudice and specific prejudice – particularly that created by the death, in 2009, of Ms Davies’ primary general practitioner,…
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.
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AGLC
Davies v Nilsen [2015] VSC 584
Case
[2015] VSC 584
Decision Date
CaseChat Overview and Summary
In the case of Davies v Nilsen, the plaintiff, Davies, sought to bring a claim for common law damages against Nilsen, a legal practitioner, after the statutory limitation period had expired. The dispute centred on a delay in bringing the claim due to the plaintiff's inability to recall the date of the injury, which was caused by the defendant's negligence. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the delay in bringing the claim could be justified under section 23A of the Limitation of Actions Act 1958 and whether the plaintiff would be prejudiced by the delay if the application was allowed.
The court considered the extent of the delay and the reasons for it, ultimately concluding that the delay was not unreasonable given the plaintiff's genuine inability to recall the date of the injury. The court also assessed whether the defendant would be prejudiced if the application was allowed. The court found that there was no significant prejudice to the defendant, as the defendant had been aware of the potential claim and had preserved relevant documents. The court also considered the public interest in allowing the claim to proceed and the importance of providing a fair trial to the plaintiff. Based on these factors, the court determined that the application to bring the claim out of time should be allowed.
The court's reasoning was that the delay was not unreasonable given the plaintiff's genuine inability to recall the date of the injury, and there was no significant prejudice to the defendant. Additionally, the court found that allowing the claim to proceed was in the public interest and would provide a fair trial to the plaintiff. As a result, the application to bring the claim out of time was allowed. The court did not make any final orders in this instance, as the decision related to the application to bring the claim rather than the merits of the claim itself.