Garforth v Surf Livesaving Australia Ltd and 3 Ors
[1999] NSWSC 972
•24 September 1999
CITATION: Garforth v Surf Livesaving Australia Ltd & 3 Ors [1999] NSWSC 972 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20165/99 HEARING DATE(S): 22 September 1999 JUDGMENT DATE:
24 September 1999PARTIES :
Clinton Garforth
(Plaintiff)Surf Lifesaving Australia Limited
(First Defendant)Surf Lifesaving Queensland Incorporated
(Second Defendant)Kurrawa Surf Lifesaving Clud Incorporated
Kurrawa Surf Lifesaving Club Supporters Association
(Third Defendant)
(Fourth Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr K Andrews
Mr G Hickey
(Plaintiff)
(Third and Fourth Defendants)SOLICITORS: Ms M Penney
Ms L Timbs
Keddies
(Plaintiff)
Sparke Helmore
(Defendants)CATCHWORDS: Extension of limitation period ACTS CITED: Choice of Law (Limitation Periods) Act 1993
Limitation of Actions Act Queensland 1974CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
Do Carmo v Ford Excavations Pty Limited (1983) 154 CLR 234DECISION: See para 21
11
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
FRIDAY, 24 SEPTEMBER 1999
20165/99 - CLINTON GARFORTH v
JUDGMENT (Extension of limitation period)
SURF LIFESAVING AUSTRALIA LIMITED
& 3 ORS2 For the purposes of this application I find the following facts.
1 MASTER: By notice of motion filed 21 June 1999 the plaintiff seeks an extension of time within which to commence proceedings against the third and fourth defendant, leave to join the proposed third and fourth defendants as defendants, leave to file a further amended statement of claim, discovery and interrogatories. Paragraphs (2) and (3) of the notice of motion (discovery and interrogatories) are stood over generally with liberty to restore on 7 days notice. The plaintiff relied on his affidavits sworn 17 July 1999 and 14 September 1999 and that of his solicitor Melinda Penney sworn 17 June 1999. The defendant did not rely on any affidavit evidence. The deponents were not cross examined.
(1) The plaintiff was born on 24 October 1975.(2) On 30 March 1996 the plaintiff attended the Australian Surf Life Saving Championships at Kurrawa Beach Queensland. He attended a social function held in the beer compound area. The beer tent was full and a ball game commenced in the tent. The plaintiff was walking to the bar area when one of the persons involved in the ball game collided with the plaintiff causing him to suffer a fracture of the right fibula and dislocation of the ankle.
(3) Up until 17 December 1998 the plaintiff was unaware of his entitlement to commence proceedings against the organisers of the event until he consulted Keddies solicitors. He had assumed that this incident was simply an accident and that he would not be able to claim damages from anyone as he was not aware of the obligations on the persons who organised the event to ensure that alcohol was not served to persons under the influence of alcohol nor was he aware of the defendant’s obligation to protect him from the risk of injury which occurred in the beer compound area.
(4) On 5 February 1999 the plaintiff’s solicitor wrote to Kurrawa Surf Club requesting particulars to establish the correct defendant in these proceedings.
(5) On 19 March 1999 as the plaintiff’s solicitor had not received a response to the above letter, she forwarded a reminder letter by facsimile to Kurrawa Surf Club.
(6) On 19 April 1999 the plaintiff’s solicitor received a telephone call from Michael Smith a solicitor who advised that Kurrawa Surf Club Incorporation was a separate entity to Surf Lifesaving Queensland Incorporated.
(7) On 29 March 1999 a statement of claim was filed.
(8) On 20 April 1999 an amended statement of claim was filed.
(9) On 31 May 1999 the plaintiff’s solicitor contacted the Queensland Liquor Licensing Board and ascertained that the license held by Kurrawa Surf Club was in fact held by Kurrawa Surf Lifesaving Club Supporters Association.
(10) On 21 June 1999 the notice of motion seeking an extension of the limitation period was filed.
The law
3 The parties agree that the case is governed by Queensland legislation and any cause of action the plaintiff may have occurred, in Queensland.
4 Section 5 Choice of Law (Limitation Periods) Act 1993 applies. It reads:5 The plaintiff relies on s 30(a(ii) and s 31(1) and (2) of the Limitation of Actions Act Queensland 1974 (the Act). The relevant portion of s 30(a)(ii) states:
“If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.”
6 Section 31(1) and (2) of the Limitation of Actions Act Queensland 1974 states:
“Interpretation
30 For the purposes of this section and sections 31, 21, 33 and 34 -
(a) the material facts relating to a right of action include the following -
(i) …
(ii) the identity of the person against whom the rights of action lies;
…”
“(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limited for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”
7 Section 31 confers a discretionary power, and in addition to satisfying the provisions of s 31(a) and (b), the plaintiff must show that it is in the interests of justice to extend time. The onus of satisfying the court that the discretion should be exercised in favour of the plaintiff, rests on the plaintiff (see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1
8 In Do Carmo v Ford Excavations Pty Limited (1983) 154 CLR 234 Dawson J (with whom Brennan J agreed) said that s 58(2) (which is similar to s 31(2)) involves a three step process. His Honour said:
“The first step is to inquire whether the facts of which the appellant was unaware were material facts: s 57(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s 57(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s 58(2).
9 And in relation to “material facts” Dawson J said:
“It seems to me that the reference to material facts in para (i) of s 57(1)(b) does not include a reference to a cause of action in negligence but is rather a reference to the facts which constitute the acts or omissions, including those facts which are necessary to show the negligent character of those acts or omissions, upon which such a cause of action might be founded.”
10 From the facts stated earlier, the plaintiff’s solicitor did not ascertain the identity of the third defendant until 20 April 1999 and the identity of the fourth defendant until 31 May 1999. The plaintiff only became aware that the defendants had an obligation to protect him from the risk of injury on 17 December 1998. On 31 May 1999 the plaintiff became aware of the identities of the third and fourth defendants who are alleged to be organisers of the event when he was advised by his solicitor. The identity of the third and fourth defendant are material facts of a decisive character as defined in s 30(a)(ii) of the Act. The plaintiff was required to have obtained this knowledge no earlier than 21 June 1998. He acquired this knowledge within the time period stipulated by s 31(2).
11 In relation of s 31(2)(b), the third and fourth defendants submitted that there was no evidence to establish a right of action. The plaintiff’s evidence is that he was attending a social function held in the beer compound area at Kurrawa Surf Club. A ball game commenced to be played. The plaintiff was walking to the bar area when a person involved in the ball game collided with him. It is alleged that each of the defendants promoted, conducted, organised, co-ordinated and ran a surf carnival at Kurrawa Beach Queensland and activities associated with the carnival including providing facilities, food and alcoholic beverages. It is alleged that the fourth defendant held the liquor license for the event.
12 The further amended statement of claim alleges that the defendants were negligent in that they failed to take any reasonable precaution for the safety of the plaintiff; failed to take any or any reasonable steps to monitor, supervise and control persons within the enclosure; failed to suspend sales of beer, prevent and/or forbid the contest or take any or any reasonable steps to prevent the contest; failed to take any or any reasonable precaution to eject persons who were intoxicated and/or otherwise likely to be involved in the contest; failure to provide security guards or put in place other reasonable security precautions; selling beer to persons who were intoxicated; failed to prevent violent physical contest being waged in close proximity to members of the public including the plaintiff and failed to comply with such licensing and/or other regulatory protocol governing the sale of beer within the said enclosure. It also alleges that they breached their statutory duties which are particularised. He suffered injuries and was unfit for six months namely a fracture of the right fibula and dislocation of the ankle. There is medical evidence that he has suffered damage as a result of the accident. It is my view that there is evidence to establish the right of action. The plaintiff has passed through the s 31 gateway.
13 I turn to consider whether it is just and reasonable to extend the limitation period. In Taylor McHugh J referred to the effects of delay in the now often quoted passage at p 8 which states:14 McHugh J at p 10 continued:
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”
15 and at page 11 he continued:
“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
16 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms.
“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”
“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”
17 The third and fourth defendants submitted that they are prejudiced because Suncorp in its letter of 26 March 1999 states that its insured does not have any record or knowledge of the incident. However, it further states that their investigations have not been completed but preliminary enquiries reveal the event was jointly run by Kurrawa Surf Lifesaving Club and Surf Life Saving Australia. The plaintiff went by ambulance to the Surfers Paradise public hospital and has consulted doctors since the accident. These records are available. The plaintiff is a young man who has suffered an injury which rendered him unfit for work for six months and those injuries may affect his future working life. The defendants did not adduce any evidence to establish that they suffer from actual prejudice. I accept that the defendants will suffer some presumptive prejudice, particularly as some of the witnesses may have been inebriated and their memories may not be as good as they could have been at the time of the accident and those memories may have further faded with the effluxion of time.
18 After taking into account all of these matters I am not satisfied that the chances of the defendant obtaining a fair trial is unlikely. Nor am I satisfied that the defendant will suffer significant prejudice. The plaintiff has discharged his onus and satisfied me that it is just and reasonable to grant leave to commence proceedings.
19 The plaintiff is granted leave to add the proposed third and fourth defendants as defendants to these proceedings. Leave is granted to file a further amended statement of claim within 14 days.
20 Costs are discretionary. It is my view that the appropriate order for costs is that costs be costs in the cause.
21 The orders I make are:
(1) The plaintiff is granted leave to add the proposed third and fourth defendants as defendants in these proceedings.(2) Leave is granted to the plaintiff to commence proceedings against the third and fourth defendant in respect of an accident which occurred on 30 March 1996.
(3) A further amended statement of claim is to be filed and served within 14 days.
(4) Costs be costs in the cause.
(5) Paragraphs (2) and (3) of the notice of motion filed 21 June 1999 are stood over generally with liberty to restore on 7 days notice.**********
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