Fisicaro v Cannizzo Lau and Associates

[2009] VCC 795

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-09-00541

GRAZIELLE FISICARO	Applicant
v
CANNIZZO LAU AND ASSOCIATES	Respondent

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 22 June 2009
DATE OF JUDGMENT:	10 July 2009
CASE MAY BE CITED AS:	Fisicaro v Cannizzo Lau and Associates
MEDIUM NEUTRAL CITATION:	[2009] VCC 0795

REASONS FOR JUDGMENT

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Catchwords: Limitation of Actions Act 1958 – ss.27K and L – personal injury sustained by applicant whilst visiting respondent’s office in June 2004 – ignorance of legal rights – alerted to possibility of same following discussion in late 2008 – proceedings issued in January 2009 – consideration of factors listed in s.27L including prejudice.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R H Stanley	Nowicki Carbone
For the Respondent	Mr D McWilliams	GRT Lawyers
HIS HONOUR:

General background

1 This matter comes before me by way of an application by the proposed plaintiff in this matter, Grazielle Fisicaro, whom I shall refer to as “the applicant”, pursuant to s.27K of the Limitation of Actions Act 1958 (“the Act”). Such an application obviously requires consideration of the factors set out in s.27L of the Act. The proposed action by the applicant is against Cannizzo Lau and Associates (“the respondent”), a firm of solicitors, and involves personal injuries allegedly suffered when the applicant was visiting the respondent’s premises. Further details of the factual background shall be summarised shortly hereafter.

2          Mr R H Stanley of counsel appeared on behalf of the applicant. Mr D McWilliams of counsel appeared on behalf of the respondent. Oral evidence was adduced from the applicant, who was cross examined. Oral evidence was also given by Mr Sam Tartaglia, a distant cousin of the plaintiff, and he was also cross examined. She had previously filed and served affidavits. Affidavits were also received from Mr Ross Cannizzo, on behalf of the respondent; Ms Sladana Kezic, a receptionist employed by the respondent at the relevant time; and Mr George Triantopoulos, solicitor for the respondent. Various documents were exhibited to the affidavit of Mr Triantopoulos. In addition, counsel made detailed and very helpful submissions. I shall now turn to a discussion of the factual background.

Factual background

3          The following findings of fact are made solely for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages and the like. Whilst obviously some attention was paid to these issues, it was in the context of the present application, and both evidence-in-chief and cross examination was limited accordingly.

4          The applicant is aged 68 years. She has very limited English and gave evidence with the assistance of an interpreter. I accept that she has little if any knowledge of the workings of the Australian legal system and has had very limited contact with the social support services of any government entities.

5          The applicant shares her residence with Mr Salvatore Noce, although the two are not, and have not been, in any form of de facto relationship. I accept that Mr Noce assisted the applicant in relation to such financial affairs as she had.

6          On 29 June 2004 the applicant attended at the office of the respondent. She accompanied Mr Noce who was attending at those offices for the purposes of the preparation of a will. I am quite satisfied that such attendance took place. Whilst Mr Cannizzo might have no recollection of it, his records reveal that, at 11.30am on 29 June 2004, an appointment was made to see “Mrs Nooche Salvatore”. Whilst Mr Noce’s surname was misspelt and he was described as “Mrs” rather than “Mr”, I am satisfied that he, Salvatore Noce, is the person described and that such an appointment was made. Initial confusion concerning such an appointment was created by the fact that, in her original affidavit and Proposed Statement of Claim, the applicant described her accident as occurring on 13 November 2004 rather than 29 June 2004. I accept that this error was caused by the applicant confusing two hospital admission dates and that her attendance with Mr Noce at the respondent’s office in fact occurred on 29 June 2004. I should add that I am satisfied not only that Mr Noce made the appointment as described, but that he and the applicant both attended at the respondents’ office on the day in question. It would appear that they were both accompanied by a third person, referred to by the applicant as her compare, who may have driven them to the office.

7          I should add that I found the applicant to be a completely truthful person, although at one particular stage her evidence became unreliable. During the afternoon of Friday, 19 June last it became apparent to me that the applicant was giving her evidence in a somewhat abnormal fashion. Her whole presentation became somewhat strange and she was apparently indifferent to what she was being asked, essentially agreeing with various propositions which contradicted her basic position and asserting matters that were somewhat surprising. For example, she claimed that her cousin, Sam Tartaglia, who first alerted her to a possible course of action, was a legally qualified barrister and solicitor. Given what had gone before, this seemed unlikely, and proved to be incorrect. Her attitude towards other questions effectively became one of “whatever you say”. She also appeared to be almost “drifting off”. It became apparent to me that all was not well, and a brief adjournment was ordered. What subsequently came to light, and what I accept, is that the applicant is on a substantial regime of medication and had missed the doses that should have been taken at lunchtime. After even a brief adjournment she appeared to regain her composure and concentrate more upon the questions which she was being asked. The conclusion of her evidence on Monday, 22 June showed a return to normal responses.

8          I do not regard the comparatively short period during which the applicant appeared disinterested and essentially prepared to agree with anything as damaging her overall credibility. Also, I effectively disregard the answers given during the short period when she was “not with it” because of her failure to take her medication. I should add that I am in no way critical of the cross examination of Mr McWilliams during the period in question. The questions which he asked were proper and reasonable, and in no way can he be criticised for obtaining answers which, somewhat surprisingly, appeared to be advancing his client’s cause rather than that of his opponent. Further, whilst properly and forcefully representing his client’s interests in this regard, in no way did he harass the applicant.

9          In summary, I regard the applicant as an honest and truthful witness whose credibility was not damaged by the brief interlude when, as a result of her failure to take her medication, she lost her way.

10        Returning to the events of 29 June 2004, I find, that having attended the respondent’s office with Mr Noce, when leaving the applicant tripped upon a mat in the doorway and fell heavily onto her right hip. I accept that the fall was witnesses by Mr Cannizzo and by the receptionist, presumably Ms Kezic. The applicant was then assisted to the motor vehicle, being assisted by Ms Kezic. I accept that neither Mr Cannizzo nor Ms Kezic have any recollection of these events which, at the time, may not appear to have been particularly momentous.

11        The applicant was conveyed to the Sunshine Hospital. Investigations there revealed that she had fractured the neck of her right femur, and she underwent hip replacement surgery on or about 2 July 2004. She has ongoing pain and disability, and has difficulties walking and carrying out many daily activities.

12        The applicant then did nothing about any possible claim again the respondent, and indeed had no comprehension that a possible claim existed. She struck me as a very simply woman of no education – she did not go to school at all in her native Italy and has not done so since arriving in Australia at the age of 16 years. After doing some factory work following her arrival here, she worked as a food server in the wards of the Royal Melbourne Hospital for some 29 years, ceasing that employment approximately eight years ago. I have no reason to disbelieve her when she says that, until informed by her cousin, Sam Tartaglia, some years after the accident, she had no idea that she could bring an action against the respondent. I do not accept that she had some awareness of her rights as a result of serving food to injured patients in hospital, nor because Mr Noce had apparently, at some time, suffered injury in a significant motor vehicle accident. She had no knowledge as to whether or not he engaged in any legal proceedings. In short, I am satisfied that, until the conversation with Mr Tartaglia, the applicant had no knowledge of her rights.

13        That conversation took place in late 2008. Mr Tartaglia thought that it occurred in late October, whilst the applicant believed it occurred in late November. I am more persuaded by the applicant ’s recollection, which seemed more definite, but in any event little hinges upon the distinction. When talking with Mr Tartaglia, a person with whom the applicant did not converse on a regular basis, the applicant described the reason for her apparent disablement concerning which she had been questioned. Mr Tartaglia then told her that she may have a claim, and offered to help her. Subsequently he made an appointment for her to see solicitors, and on 9 December 2008 she was interviewed at the offices of Nowicki Carbone, who now act for her. On 27 January 2009 a Proposed Statement of Claim was issued on behalf of the applicant. It contained an incorrect date of accident. An Amended Proposed Statement of Claim was issued on 27 June 2009 and rectified that error. It has not been suggested that any significance is to be attached to the delay between the issuing of the Proposed Statement of Claim and the Amended Proposed Statement of Claim.

14        I say immediately that I am not persuaded that any delay of significance occurred between the time of the applicant discovering her possible legal rights in late 2008 and the issuing of proceedings in January 2009. It seems to me that, once she discovered, with the assistance of Mr Tartaglia, that she may have certain legal rights, she acted promptly. It also seems to me that her solicitors acted promptly. Whatever may be the strength of other arguments, it does not seem to me that untoward delay after the discovery of legal rights is a factor in this dispute. Further, it was not suggested that any prejudice may have been suffered by the respondent because of the passage of time, or events occurring between late 2008 and early 2009, or between late 2008 and the issuing of the Amended Proposed Statement of Claim.

15        Since the issuing of proceedings there has been some correspondence between the solicitors for the parties. Some of this relates to medical records and opinions. Indeed, arguments were advanced on behalf of the respondent based upon the lack of medical material before me and the alleged resultant failure of the applicant to establish that she could satisfy the threshold provisions of the Wrongs Act 1958. I shall return to this argument, but would say now that I am not persuaded by it, or persuaded that it is an argument which defeats the application.

16        Suffice to say that, for the purposes of this application, I am satisfied that the applicant sustained injury, being a broken right femur, in the manner which she has described. This resulted in hip replacement surgery. I am also satisfied that she has significant ongoing pain and disability as a result of the injury suffered.

17        Against that factual background, I now turn to my ruling in this matter.

Ruling
18	The applicant bears the burden of proof in this matter. There is no doubt that the proceedings issued by her were out of time, and accordingly she bears the ultimate burden of satisfying me that the appropriate leave should be granted to her. However, insofar as the respondent relies upon any prejudice which it may have suffered as a result of delay, it bears the evidentiary onus in that regard.
19	Bearing in mind the evidence before me and the factors to be considered as set out in s.27L of the Act, I am satisfied that the applicant has discharged the overall burden of proof borne by her. I am not satisfied that the respondent has established prejudice which is so severe as to preclude a fair trial within the meaning of the observations of Buchanan JA in Tsiadis v Patterson [2001] VSCA 138. As was argued, prejudice is but one of the factors to be taken into account. I would refer to the following remarks of Buchanan JA in Tsiadis at paragraph 33:

“…the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent (the applicant in the present case) bears the onus of persuading the court that it is just and reasonable to extend the limitation period. I agree with Brooking J in Bell v SPC Limited when he said:

‘The question posed by s.23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a)-(f) of subs (3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them…It is for the plaintiff to satisfy the court it is just and reasonable to extend the period.’

In the present case I come to the conclusion that overall it is just and reasonable, notwithstanding the possibility of prejudice to the appellant.”

20        It was agreed by both counsel in the present case that authorities such as Tsiadis and Bell, whilst dealing with s.23A of the Act, are equally applicable to applications pursuant to s.27K.

21        In arriving at the conclusion that the applicant has discharged the burden of proof and that it is just and reasonable to extend time, I have had regard to all the circumstances of the case including those set out in s.23L. I shall now deal with the circumstances to which I am to have regard and which are listed in s.23L(1), and I shall deal with those factors in the order in which they are set out in that sub-section, prefacing each consideration with the letter therein referred to:

(a)

I am not satisfied that the applicant had the relevant conversation which alerted her to her possible rights in June 2004. She gave that answer during the period when she was affected by her failure to take her medication and when she was agreeing with propositions that were contrary to the balance of her evidence. On the basis of the balance of such evidence and of Mr Tartaglia’s evidence, I am quite satisfied that such conversation took place in late 2008 and that she became aware of her rights, or the desirability of consulting a solicitor, at about that time. I appreciate that ignorance of the legal rights alone may not be sufficient to warrant the granting of the leave sought, but in an appropriate case it is a factor to be considered – see Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152. However, I am not of the view that the overall period of delay is in itself so inordinate as to constitute prejudice or to warrant leave being refused, as occurred in Kulic. I would point out that the overall delay in Kulic exceeded nine years and that there was delay of some seven months between the injured party becoming aware of his legal rights and the issuing of a summons. The overall delay in the present case does not strike me as so inordinate as to constitute prejudice of itself and without the need to refer to other factors. The applicant – a simple, ill-educated woman – was ignorant of her rights. This was the basic cause of the delay of some three and a half years before she consulted solicitors. Her solicitors then acted promptly. Whilst proceedings were issued out of time, they were initiated within four years of the subject accident and seven months of the expiration of the limitation period. I am not of the view that the length of delay or the reasons for delay are factors which operate to the detriment of the application or lead me to the conclusion that it should fail.

(b)

I am not persuaded that the respondent has established the existence of a likelihood of any significant prejudice having regard to the delay. Essentially all that can be said is that Mr Cannizzo and Ms Kezic have no recollection of the event in question. Whether that it is due to the passage of time, and particularly the passage of time since the expiration of the limitation period, is a moot point. Other than the reference to Mr Noce’s appointment, the records of the respondent reveal nothing of relevance. There is no entry in relation to any fall on the day in question. Assuming that the fall occurred as I have found, there could be a multitude of reason for this, ranging from accidental omission to a belief that nothing of significance had happened. Whatever be the reason, there is simply no entry. Understandably, and particularly in the absence of any record of the event, there is nothing to indicate that Mr Cannizzo and Ms Kezic would have had a greater recollection, or something with which to refresh their memory, had proceedings been initiated, say, two years after the incident as opposed to three and a half years. Of course those persons, or anyone else for that matter, are not in a position to say that their non-existent recollection would have been more likely to exist two years after the event than three and a half years if the event itself was not particularly memorable. One can only point to the obvious truth that the passage of time does not assist memory. However, the point to be made is that there is no suggestion that material which would otherwise have assisted recollection no longer exists due to the passage of time.

The same could be said of the physical layout of the premises and the existence of the mat. In the available evidence there is no suggestion that the configuration of the premises has been altered, that the mat has been replaced or removed, or that the whole set-up, including the location and features of the mat, has in some way altered. There is no suggestion that, because of changes that have occurred during the period of delay, investigation of the features of the location of the accident cannot be undertaken, or would now be pointless or flawed.

To some extent it might also be said that the lack of recollection on the part of, for example, the receptionist, is also a disadvantage to the applicant. However, it is prejudice to the respondent that is to be considered. In the circumstances, I am not of the view that the respondent has discharged the burden of establishing prejudice so as to operate to the disadvantage of the application, and, to use the words employed by Mr McWilliams in his submission, discourage me from exercising my discretion in favour of the applicant.

(c)	It was agreed by both sides that s.27L(1)(c) does not impact upon this application.
(d)	Whilst Mr McWilliams addressed s.27L(1)(d), I am not of the view that it is applicable. I do not find that the applicant suffered a disability or legal incapacity within the meaning of this sub-section and which arose after the date of discoverability as defined in s.27F. I would also refer to s.27J.
(e)	Section 27L(1)(e) seems to me to have only limited application. It also involves a consideration of s.27F and of the meaning of “discoverable”. Certainly the applicant knew that personal injury had occurred in June 2004. She may also have known that it was caused by the “fault” of the respondent, but whether the word “fault” as used in s.27F is used in the legal sense or in a lay sense is not entirely clear. What is clear to me is that the applicant did not turn her mind to “fault” in the legal sense, and whether she even considered it in the lay sense is far from certain. Whether she also knew prior to seeing her solicitors that the injury which she had suffered was sufficiently serious to justify the bringing of an action is also highly doubtful. In summary, I am not of the view that s.27L(1)(e) is of great impact, and I certainly do not form the view that it operates to the detriment of the application.
(f)	I have already discussed the question of the promptness with which the applicant and her solicitors acted once she had the requisite knowledge. I am also of the view that this does not act to the detriment of the applicant.
(g)	The operation of this provision seems to me to have no adverse effect upon the application. The submissions on behalf of the respondent perhaps linked this provision to s.27L(2)(b) in that it is suggested that the applicant has failed to produce evidence which would establish that the threshold test contained in the Wrongs Act is likely to be satisfied.

I am not persuaded by this argument. Firstly, it seems to me that s.27L(1)(g) is directed more to the type of situation that was criticised in Kulic, where further time was wasted whilst expert advice was gathered prior to the issuing of proceedings, and where there was no explanation as to why this delay had occurred. The issuing of proceedings was not so delayed in the present case.

Secondly, given that proceedings were issued promptly, I tend to agree with the argument advanced by Mr Stanley. The applicant has sworn that she has suffered what would appear to be a substantial injury. Whether or not that injury, when assessed by experts on both sides, is sufficient to pass the threshold test in the Wrongs Act is a separate issue to be dealt with at a later date. It is not suggested that the applicant’s medical condition has in some way altered during the period of delay. It is not suggested that the respondent has been denied the chance of a medical examination, and particularly one which might address the requirements of the Wrongs Act. It has not been suggested that delay has had any impact on such factors.

22 I now turn to s.27L(2), which includes an expansion of the circumstances set out in s.27L(1). I will again deal with the sub-sections in alphabetical sequence as follows:

(a)

As is probably evident from the above, I am not of the view that the passage of time has prejudiced a fair trial of the claim. I have already discussed the recollection of particular individuals and the absence of any records. I do not agree with the submission of Mr McWilliams that the applicant’s recollection is unreliable. I have already discussed the overall reliability of her evidence, save for the period when she was clearly affected by her failure to take her medication.

(b)

Again I am not in agreement with the submission of Mr McWilliams that the absence of expert evidence to the effect that the applicant’s injury is sufficiently serious to overcome the threshold required by the Wrongs Act is in some way fatal to the application. I am equally unconvinced by submissions based upon the fact that the applicant ceased working approximately eight years ago, that there is no evidence to suggest that there will be significant future medical expenses, or that she takes no medication. Again, these are questions for trial rather than on an application such as this. For example, the fact that the applicant had not been working for some years is not to the point. The Amended Proposed Statement of Claim could best be described as ambivalent concerning economic loss, but again this is a matter for trial.

Mr Stanley argued that the nature and extent of the applicant’s loss is that she has lost the opportunity to litigate her claim should this application fail. Whilst this is ostensibly true, it seems to me to be a somewhat circular argument. The correct approach seems to me to be more that the court should be less inclined to exercise its discretion in favour of a proposed applicant if the claim is trifling. Having observed the applicant and bearing in mind the nature of the injuries sustained by her, I am not of that view. I do not consider that s.27L(2)(b) operates to the detriment of the application.

(c) This provision does not seem to me to have any operation in relation to the present application. It appears to me to be the opposite side of the coin to s.27L(2)(b), in that a factor to be considered may be either the possibly helpful or reprehensible conduct on the part of the proposed respondent. Neither has occurred in the present case. The conduct of the respondent has not been obstructive or reprehensible. Nor has it been suggested that the respondent has made particular efforts to assist the applicant, and these have been in some way ignored. The respondent’s witnesses simply have no recollection of the event, and there is no record save for that of the appointment to which reference has been made.

23        It has also been argued on behalf of the respondent that a Jones v Dunkel inference should be drawn because of the failure of the applicant to adduce any evidence from Mr Noce or from the other person who apparently travelled in the motor vehicle to the appointment at the solicitor’s office. Even if I draw the appropriate inference that the evidence of those persons would not have assisted the applicant’s case, it nevertheless seems to me that she has discharged the burden of proof. As I understand it, the evidence of such persons would primarily relate to the occurrence of the incident rather than to the delay. However, for the purposes of the present application, I have found the applicant to be a truthful witness and accept that the incident did occur. Arguably the evidence of such persons might also extend to the applicant’s state of knowledge, particularly bearing in mind the submission that Mr Noce had previously been involved in a motor vehicle accident, but this seems to me to be “drawing a long bow”. There are many hypothetical questions involved. It is not even clear that Mr Noce obtained legal advice. In any event, there are very considerable differences between the legal rights of those involved in motor vehicle accidents and those bringing a claim pursuant to the Wrongs Act.

24        Essentially the same observations could be made in relation to a submission by Mr McWilliams that hospital records have not been produced. Again, any inference to be drawn seems to me to relate more to the occurrence of injury and the nature of it rather than to delay. I have already commented upon this, and the distinction between matters to be dealt with in an application such as this and those which are to be dealt with at trial. During submissions I was referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In particular, I was referred to the observations of McHugh J. However, it must be remembered that the act there being dealt with was the Queensland Limitation of Actions Act 1974, the provisions of which are markedly different. I would also point out the following observation of his Honour:

“An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of discretion in his or her favour.”

25        I have borne that in mind in the present case. I have also attempted to follow the approach set out in Tsiadis and Bell. The end result is that I am of the view that the applicant succeeds, having discharged the burden of proof. When the competing considerations are synthesised, to employ the language used by Buchanan J in Tsiadis, and when they are all taken into account, I am satisfied that it is just and reasonable to extend the limitation period. I would refer to the reasons set out above and to the analysis of the factors referred to in s.27L of the Act.

26        The applicant is successful. The time in which she may commence proceedings is extended accordingly, and I shall hear the parties as to the precise wording of the orders that are required in that regard. I shall also hear the parties as to any ancillary orders.