Fabijan v GPT Re Limited (trading as Dandenong Plaza) (Ruling)
[2015] VCC 529
•8 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-00906
| JOE FABIJAN | Plaintiff |
| v | |
| GPT RE LIMITED (trading as DANDENONG PLAZA) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2015 | |
DATE OF RULING: | 8 May 2015 | |
CASE MAY BE CITED AS: | Fabijan v GPT Re Limited (trading as Dandenong Plaza) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 529 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to s27 Limitation of Actions Act 1958 – negligence – personal injury – whether limitation period should be extended under s27K – nature and extent of the knowledge of the plaintiff – general and specific prejudice
Legislation Cited: Limitation of Actions Act 1958, s27K
Cases Cited:Bell v SPC Limited [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ruling: Leave to the plaintiff to extend the period within which the Writ be issued.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Kumar | Nowicki Carbone Lawyers |
| For the Defendant | Mr D J Deller | Hunt & Hunt |
HIS HONOUR:
Preliminary
1 This is an application brought by the plaintiff, Joe Fabijan, by Summons dated 13 April 2015 for an extension of the period within which the Writ may be issued pursuant to s27K of the Limitation of Actions Act 1958 (“the Act”).
2 The Writ was filed on 26 February 2014 and served on the defendant on 17 September 2014, together with an Amended Statement of Claim. Mr Fabijan alleges the defendant, GPT Re Limited (trading as Dandenong Plaza) (“GPT”), the occupier of premises known as the Dandenong Plaza Shopping Centre (“the premises”), was negligent and/or breached its statutory duty of care to Mr Fabijan, when he slipped on wet and slippery tiles at the food court at the premises when it flooded on 4 February 2011 (“the incident”). Mr Fabijan claims damages for injuries he suffered, in particular to his low back and shoulder.
3 By its Amended Defence filed 28 April 2015, GPT pleads that Mr Fabijan’s claim is statute barred pursuant to s27D of the Act on the basis that the cause of action alleged against it was discoverable more than three years prior to the date on which Mr Fabijan’s proceeding was issued.
4 Counsel for Mr Fabijan conceded that the cause of action was discoverable by Mr Fabijan at the time of the happening of the incident and that the cause of action became statute barred on 4 February 2014. The Writ was therefore issued 22 days after the expiry of the limitation period.
Applicable legislation
5 The application is brought pursuant to the provisions of s27K of the Act, which provides:
“(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)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
6 Section 27L sets out the matters to be considered in determining an application for an extension of the 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 subsection (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)In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4)In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”
The evidence
7 The following affidavits were tendered on behalf of Mr Fabijan:
· Affidavits of Mr Fabijan sworn 16 February and 28 April 2015 – Exhibit 1
· Affidavits of Richard James Furnell, Mr Fabijan’s solicitor, sworn 16 February and 13 March 2015 – Exhibit 2.
8 Mr Fabijan was the only witness called to give evidence and be cross-examined in this application.
9 Mr Fabijan is a fifty-year-old plumber who lives in Narre Warren. At the time of the incident he was unemployed and recovering from a hernia repair, which had taken place at the end of 2010. According to Mr Fabijan’s affidavit sworn 28 April 2015, he has had a problem with drug addiction over a considerable period. Although he was not taking heroin at the time of the incident, he resumed taking heroin some months after.
10 In evidence, Mr Fabijan said that he arrived at the premises at about 5.00pm on 4 February 2011, where he met with three friends at a coffee shop called ‘Grain’. Some time before 6.00pm, Mr Fabijan briefly went shopping at a supermarket and then returned to Grain. At approximately 7:50pm, as he was leaving the defendant’s premises, he slipped on wet and slippery tiles and fell.
11 Immediately after the incident, Mr Fabijan felt pain in his low back and right shoulder. He also had a headache from hitting his head on the floor and suffered some immediate but temporary memory problems. He provided his contact details to security staff and rested briefly at the premises. He was not provided with an incident report. He said none of the defendant’s staff contacted him about the incident.
12 Mr Fabijan drove himself to the Emergency Department at Dandenong Hospital seeking treatment for the headache. He arrived at between 8:30pm and 9:00pm. He did not report his back and shoulder symptoms. He left the Dandenong Hospital approximately two-and-half hours later, and his headache eventually subsided.
13 Mr Fabijan said that a month or two after the fall, he presented to a general practitioner at the Narregate Clinic with back and shoulder pain. He was told to take Panadeine, and the clinic organised some x-rays. He subsequently returned to the clinic for more tablets on a few occasions.
14 On 7 December 2011, ten months after the incident, Mr Fabijan was conveyed by ambulance to Dandenong Hospital and admitted with a range of medical issues. In cross-examination, he said the main reason he went to hospital was because of shoulder pain. According to the Southern Health Discharge Summary dated 20 December 2011,[1] at the time of his discharge from hospital, he was diagnosed with infective endocarditis, MSSA bacteremia and hepatitis C.
[1]Exhibit JF1 to affidavit of the plaintiff sworn 28 April 2015
15 Mr Fabijan said that during this hospital admission, he was transferred from Dandenong Hospital to the Monash Medical Centre, where he underwent an ultrasound on his right shoulder which showed bursitis. He said he did not ask hospital staff whether his right shoulder was likely to get better or be permanent. He said he had back pain at the time but he did not seek treatment for it. He said that he ceased taking heroin and was commenced on a Methadone treatment program. On being discharged, he was advised to continue treatment with his general practitioner.
16 Mr Fabijan went to Mediclinic on approximately six occasions in 2012 and 2013 for back and shoulder pain. He was initially prescribed ibuprofen, which he found inadequate at treating the pain, and then increased doses of Methadone.
17 On 20 September 2012, Mr Fabijan underwent a CT scan of his lumbar spine ordered by his general practitioner, Dr Oliver. The scan showed a prolapsed disc at L4-5 and a disc bludge at L3-4.[2]
[2]Exhibit JF1 to the affidavit of the plaintiff sworn 16 February 2015
18 Mr Fabijan returned to work in around November 2012. Because of back and shoulder pain, he was only able to return in a supervisory capacity. He is currently employed as supervisor.
19 Mr Fabijan said in about February 2014, he heard an advertisement on radio by Nowicki Carbone Lawyers. He said the advertisement made him realise that his injuries were getting worse and not better, and he thought he should see a lawyer.
20 Approximately one week after hearing the advertisement, Mr Fabijan attended the Dandenong office of Nowicki Carbone, where he was referred to Richard Furnell, a solicitor at the firm’s Melbourne office. He spoke to Mr Furnell on 26 February 2014 and was told that a three-year time limit applied to his claim.
21 Mr Fabijan said he did not know about the three-year time limit before he met with Mr Furnell. He said he did not see a solicitor earlier because he was still hoping to get better. He said friends had told him that because there was no incident report, “there was nothing that could be done”[3]. Mr Furnell advised that a claim could be made even without an incident report.
[3]Exhibit 1 – Affidavit sworn 28 April 2015 at paragraph 10
Summary of relevant legal principles
22 The Court may make an order extending the time for commencement of a proceeding if it decides “it is just and reasonable to do so”.[4] In exercising the power under s27K, the Court shall have regard to all the circumstances of the case (including but not limited to) the factors set out in s27L(1) of the Act.
[4]Section 27K(2)(b)
23 Mr Fabijan has the onus of satisfying the Court that it is just and reasonable to extend the limitation period.[5]
[5]Bell v SPC Limited [1989] VR 170 at 174
24 In determining an application for an extension of time, the Court should synthesise the competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that Mr Fabijan bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[6]
[6]Tsiadis v Patterson (2001) 4 VR 114 at 116 and 123
25 The delay referred to in s27L(1)(a) is the delay between the accrual of the cause of action and the making of the application for an extension of time.[7]
[7]Koumorou v State of Victoria [1991] 2 VR 265 at 271
26 The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on it.[8]
[8]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555
27 In relation to the passage of time and any resulting prejudice, consideration is to be given as to whether the passage of time has prejudiced a fair trial of the claim.
Conduct of Mr Fabijan
28 Mr Fabijan explained the delay in terms of being unaware of the limitation period, being hopeful that his injuries would improve and a belief that a claim could not be brought without an incident report and significant health issues, including heroin addiction.
29 Having observed Mr Fabijan in cross-examination, I assessed him as an unsophisticated but honest witness. I accept his evidence that a Nowicki Carbone radio advertisement prompted him to obtain legal advice one week later, that is, at a time when the limitation period had already expired. On learning of the limitation period, he acted promptly to commence his claim by instructing Mr Furnell to issue a writ immediately.
30 I note that the defendant did not significantly challenge Mr Fabijan’s honesty.
31 In the circumstances, in particular Mr Fabijan’s misguided belief that he could not prosecute a claim without an incident report, I consider that he may be excused for commencing proceedings after the expiry of the limitation period.
Conduct of Mr Fabijan’s solicitor
32 Mr Deller submitted that there was no satisfactory explanation for the delay in the period between the issue of the Writ (26 February 2014) and service of the proceedings on the defendant (17 September 2014). I note that Mr Furnell filed two affidavits in support of Mr Fabijan’s application, neither of which disclosed the date of service of the Writ nor gave an explanation for the seven-month delay. Mr Kumar conceded that this delay is not adequately explained.
33 While I consider the seven-month delay by Mr Fabijan’s solicitor to be undesirable, it is not, in my view, an unreasonable delay.
34 As for the delay between service of the proceedings and this application, Mr Kumar explained that the parties had agreed to a timetable which included this application.[9]
[9]Transcript 38, L9
General and specific prejudice
35 The real issue to be determined in this application is the extent to which GPT suffers general and/or specific prejudice in defending Mr Fabijan’s claim. It did not file an affidavit setting out any particular prejudice to it in the conduct of its defence. Mr Deller said that GPT had no evidence of any specific prejudice rather, it “suffered the prejudice that all defendants suffer by the effluxion of time”.[10]
[10]Transcript 34, L22
36 This is not a case where it can be said that classical prejudice has occurred such as witnesses having died or gone missing, or important documents lost. In the present case, the delay between the incident and this application is some four years and two months, a period of time, in my judgment, too short to be considered inordinate.
37 While I accept that GPT faces some modest prejudice by reason of the passage of time, it was aware of the occurrence of the incident from the outset, and I am not satisfied that the prejudice amounts to any significant impediment to the proper defence of the claim.
38 In my view, it is just and reasonable, taking into account all of the matters referred to in s27L of the Act, to extend the time within which the Writ may be issued.
39 I shall hear the parties as to further orders.
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