Geary v Connolly

[1988] TASSC 110

Serial No B42/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Geary v Connolly [1988] TASSC 110; B42/1988

PARTIES:  GEARY, Michael Gerard
  v
  CONNOLLY, Lawrence Gordon

FILE NO/S:  BDR M12/1988
DELIVERED ON:  16 November 1988
JUDGMENT OF:  Cox J

Judgment Number:  B42/1988
Number of paragraphs:  9

Serial No B42/1988

List "B"

File No BDR M12/1988

MICHAEL GERARD GEARY v LAWRENCE GORDON CONNOLLY

REASONS FOR JUDGMENT  COX J

16 November 1988

1. Application for extension of time under s5(3) of the Limitation Act 1974.

1. The applicant was involved in a motor vehicle accident at Burnie on the 23 March 1982 when his vehicle was allegedly struck from behind by one driven by the respondent. He reported the matter immediately to the local police and then attended at the hospital complaining of a sore neck for which he was given a collar. The following day, finding it uncomfortable, he consulted his own general practitioner, Dr Gameau, who referred him to a physiotherapist, Mr Hennessy. Dr Gameau rendered his account for that consultation to the MAIB and received payment from it.

1. Within a few days the applicant consulted a member of a firm of solicitors concerning the damage done to the car which was owned by the family company which employed him and to obtain advice about payment of any medical expenses he might incur. He did not then regard himself as having any injury of any real significance and his main concern was to ensure that any medical or physiotherapy expenses would be covered. As the solicitor to whom he spoke did not usually deal with such matters, he referred the file to another solicitor in the firm, Mr Guest.

1. By about May 1982 the applicant had seen Mr Guest who, I infer, was taking whatever action was necessary in relation to the damaged car but, as the applicant had incurred no expenses which had not been met, it does not appear that any other action was then required by Mr Guest other than to transmit a claim form signed by the applicant to the MAIB on about the 20 August 1982.

1. The applicant has been a keen athlete competing at professional meetings. In January 1983 his condition deteriorated to the extent that he received two months‘ physiotherapy treatment from Mr Hennessy. It is alleged that this condition was brought about as the result of the accident. Mr Hennessy, at the conclusion of that course of treatment, submitted his account to the MAIB which rejected it and it was sent to the applicant in about May 1983 for payment. The account amounted to about $150 and was paid by the applicant. Thereafter he saw Mr Guest and enlisted his help to recover that sum. Over the next three years the applicant made periodic contact with Mr Guest concerning this amount but it has still not been recovered.

1. The applicant continued to engage in his sporting pursuits and in about April 1986 suffered a torn quadricep muscle while competing in Melbourne. He consulted a Melbourne physiotherapist, Mr Salter, and has subsequently received treatment on at least 15 occasions for his leg and back. It is alleged that the need for this treatment was caused by the initial accident. Mr Salter referred the applicant to a Dr Dalzeil and in April 1987 he conducted an operation in his rooms which likewise is said to have been necessitated by that accident. The applicant incurred expenses of about $3,000 in fees, air fares and accommodation as a result of the various treatments received in Melbourne.

1. At some time between April 1986 and April 1987, after the applicant learned that the MAIB would not accept responsibility for the payment of these expenses which he met himself, he consulted Mr Guest again. It would seem that this interview took place early in 1987. According to the applicant Mr Guest told him that he was out of time for getting money for any pain and suffering, but reassured him that the Board would be responsible for any reasonable medical and other expenses associated with his treatment in Melbourne and to therefore keep all vouchers such as air tickets and accommodation receipts. It is clear that prior to this time the applicant’s only concern had been recovery of his out pocket expenses and he had not sought advice, nor been concerned to inquire, whether he might have any further claim to damages at large. In cross–examination on his affidavit he agreed that when Mr Guest told him he was out of time for making any such claim he was still not concerned or worried because he had never intended to make a claim of that sort and did not then think of doing anything else, such as seeking advice from another solicitor.

1. As the result of a conversation on a social occasion in November 1987 with another solicitor, the applicant learned that an application for extension of time could be made within six years of the accident. About two months later he collected his file from Mr Guest, took it to that solicitor and the present application was lodged on the 15 March 1988, eight days before the expiration of six years from the date on which the cause of action arose.

1. I am satisfied that there is a prima facie case of negligence and, so far as prejudice is concerned, no special prejudice is alleged by the defendant. Nevertheless, in my opinion, the delay in this matter has not been satisfactorily explained and I am in no doubt that it would not be just and reasonable in all the circumstances of the case to grant the extension of time sought. Throughout the first three years following the accident, when action could have been instituted as of right, the applicant chose only to seek repayment of his out pocket expenses and did nothing beyond making periodic enquiries to force the issue. He adopted this attitude because he did not regard his injuries as being particularly significant. When he encountered a need for more prolonged treatment, about four years after the accident, he was still only concerned to ensure that his out pockets would be met and still did not contemplate any action for damages. Furthermore, he did not seek advice on his rights. It is said that this is because he was ignorant and relied upon his solicitor to tell him the relevant law. However, he is reasonably well educated and has a position of standing with his father‘s car retailing company and there has been no reason shown why, if he had any concern that payment of only his out pocket expenses would still leave him substantially disadvantaged by the accident, he did not seek such advice. I think it is clear that such problems as he had before the bulk of his treatment had been concluded were regarded mainly as nuisance value only. If they did get to a stage of any severity he knew by April 1987 that no action had been taken by his solicitor to institute an action which would result in an award of general damages and that the time for such an action had expired. If he felt aggrieved at that time he did nothing to query the adequacy or otherwise of his solicitor’s conduct of his case and, even when he learned from another solicitor in November 1987 that an application to extend time was still open to him, although time for it was fast running out, he still delayed a further two months at least before instructing that solicitor to proceed with the application. The application will be refused. Notwithstanding the dismissal of this application, the applicant‘s rights under Schedule 1 of the Motor Accidents (Liabilities and Compensation) Act 1973 to payment of all the expenses reasonably incurred by him for the provision of the treatment required by him as a result of the injury will remain intact.