Fury v Doedens

[1987] TASSC 72

Serial No B2/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Fury v Doedens [1987] TASSC 72; B2/1987

PARTIES:  FURY, MICHAEL
  v
  DOEDENS, DANNY

FILE NO/S:  MA 111/1986
DELIVERED ON:  9 February 1987
JUDGMENT OF:  Cox J

Judgment Number:  B2/1985
Number of paragraphs:  11

Serial No B 2/1987
List "B"
File No MA 111/1986

MICHAEL FURY v DANNY DOEDENS

REASONS FOR JUDGMENT  COX J

9 February 1987

1. This is an appeal from a decision of the Master granting, pursuant to S.5(3) of the Limitation Act 1974, the respondent to the appeal an extension of time within which to commence proceedings at common law against the appellant for damages for personal injuries arising out of an accident which occurred on 11th September 1980.

1. The respondent was a passenger in a motor vehicle being driven by the appellant on that day on the Southern Expressway between Hobart and Kingston. The appellant who was travelling at the maximum speed limit braked heavily and swerved suddenly to avoid a possum crossing the highway. The road was damp and the appellant lost control of his vehicle. As a result the vehicle left the road surface and rolled (bonnet to boot) down an embankment. The respondent said that he suffered two fractured vertabrae in the upper cervical spine, a fractured collar bone and other less serious injuries. He said that he injured his head in the collision and still suffered pain, but that it was not bad enough to prevent him from engaging in employment. At the conclusion of the hearing before the Master, counsel for the appellant conceded that there was prima facie an arguable case of negligence against his client. That concession has been repeated before me.

1. The injury suffered by the respondent did not require his hospitalisation but he was unable to work for a period of some weeks. On 25th September 1980 having been told to do so by “medical personnel” he filled out and submitted to the Motor Accidents Insurance Board an application for benefits. In it he gave details of his injuries as “fractured vertabra – fractured collar–bone”, advised that he had received Outpatient treatment at the Royal Hobart Hospital and stated that his probable term of disability for work (as a salesman) was four weeks. Details of the accident were given sufficient to alert the Board to the possibility at least of a claim that the appellant had been negligent. The Board received and paid an ambulance account for $32.80 and an account from the Royal Hobart Hospital for X–rays to chest, shoulder and spine amounting to $89.80 and paid to the respondent a disability allowance of $428.57 in respect of the period 18th September 1980 to the 12th October 1980.

1. Nothing further was heard by the appellant or the Board until 3rd July 1986 when the respondent’s solicitor wrote to the Board advising that he intended to claim damages. At the time of the accident the respondent was 20 years of age and his parents were in Papua New Guinea (for how long does not appear). He did not consult a solicitor and only became aware of any right to sue for damages shortly before July 1986 while talking with friends concerning the continual discomfort that he experienced with his back. As a result he made a telephone call from Victoria where he now lives to his brother in Tasmania who on 24th June 1986 contacted the respondent‘s solicitors. They in turn promptly contacted the respondent, wrote to the Board and initiated these proceedings without delay.

1. Although the respondent referred to his continual pain, it is clear from the notes of his cross–examination before the Master that he received no treatment for it for nearly six years, attending a chiropractor only in June 1986. He conceded that he had engaged in the interim in a variety of jobs all of them being “reasonably heavy”. Nevertheless he claimed that he had had pain “all the way through – especially in winter”. His explanation for not seeking medical attention was merely that he did not think anything could be done for his fractured vertabrae, this opinion being based on the fact that he had “worked in a hospital”.

1. I now have to determine in the exercise of my own discretion whether or not in all the circumstances of the case it is just and reasonable to extend the time up to a period not exceeding six years from the time when the cause of action arose. In other words, I have power to extend time to the 11th September 1986 by which date I understand a Writ was in fact issued.

1. Applications of this kind are constantly coming before the Courts and the relevant cases are well known and do not require repetition. It is sufficient to say as Neasey J. on behalf of the Full Court said in Knight v. Smith (1975) Tas.S.R.83 at p.93 that “the ultimate question for the judge is whether it is just and reasonable to extend time”. In making that determination all the circumstances must be considered. It is for the applicant to make out a positive case for extending time.

1. In my view the respondent to this appeal (the original applicant) has failed to make out a positive case. No evidence was adduced from which it might be inferred that he was misled into a belief that a claim against the Board for loss of wages and medical or hospital expenses was the limit of his entitlement. If, as distinct from an absence of belief in the existence of any right to claim damages, he did have a positive belief that he had no such entitlement (and the Master so found, but with respect I see no basis in the evidence for making such a finding) it was a belief based only on an assumption born out of ignorance and not out of anything said to him. There is no evidence that prior to June 1986 he sought advice from his parents while they were out of the country or when they returned, from older relatives or friends, employers or indeed from any other person at all. He was he says continuing to suffer pain but he sought no medical treatment either. Again this is not satisfactorily explained. At the end of three years his claim had prima facie been put to rest by the expiration of time (Klein v. Domus Pty. Ltd. (1963) Vol. 109 C.L.R. 467 at p.474). Only after the lapse of a further two years and nine months was any step taken by him to ascertain his rights.

1. In his cross–examination he claimed that he was “pretty naive in those days”, that is, at the time of his accident. There is however no reason to suppose that he was lacking in normal intelligence and even an initially naive young man suffering continual pain over the years following his accident could be expected to make some enquiry concerning amelioration of his condition and recompense for his sufferings. Naivety alone does not seem a plausible explanation nor in my view having regard to all the other circumstances, is it a satisfactory one. Ignorance of the law while a factor to be taken into account is not necessarily decisive.

1. Prejudice to the proposed defendant is also a material consideration in applications such as this. No specific prejudice was alleged and no affidavit material submitted by the appellant. Nevertheless the general prejudice arising from lengthy delays in litigation should not be ignored. Furthermore, there is clearly a potential for prejudice in the fact that the delay in commencing proceedings has deprived the appellant of the opportunity of obtaining advice on the respondent’s medical condition at a much earlier time and possibly ensuring his earlier rehabilitation. The Board could be expected in the circumstances to have regarded the respondent‘s injuries as minor fractures leaving no long term ill effects. Since the accident he has engaged in a variety of strenuous occupations some of which could have exacerbated his injuries or even caused the complaints which he now has. The inability of the appellant and his insurer to give consideration to these possibilities at an earlier time is in my view a matter of some potential prejudice and should be taken into account.

1. Having regard to all the circumstances it is my opinion that it would not be just and reasonable to extend the time to so late a stage. The appeal will be upheld and the application for an extension of time refused.