Geary v Stack

[2000] NSWSC 11

CITATION:	Geary v Stack [2000] NSWSC 11
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 21108/96
HEARING DATE(S):	31/01/00, 01/02/00, 02/02/00
JUDGMENT DATE:	10 February 2000
PARTIES :	Ralph Adrian Geary v David Maurice Stack & Ors T/as Stacks The Law Firm
JUDGMENT OF:	Brownie AJ at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :	J Graves SC & M R Pesman for plaintiff Burbidge QC & Mr A C Casselden for defendants
SOLICITORS:	Leacock & Massey for plaintiff Mallesons Stephen Jaques for defendants
CATCHWORDS:	Limitation of actions - extension of time - Section 60G of the Limitation Act 1969 is at best as favourable to this plaintiff as is section 58
LEGISLATION CITED:	Limitation Act 1969 Limitation (Amendment) Act 1990 NSW Law Reform Commission (Limitation of Actions for Personal Injury Claims, LRC 50)
DECISION:	Judgment for plaintiff in amount to be agreed.

1

THE SUPREME COURT
NEW SOUTH WALES
COMMON LAW DIVISION

BROWNIE AJ
Thursday 10 February 2000

21108/96: RALPH ADRIAN GEARY v DAVID MAURICE STACK & ORS T/AS STACKS THE LAW FIR M

JUDGMENT

1    HIS HONOUR : On 18 December 1980 the plaintiff was injured in an accident at work. He was then a physiotherapist employed by the Manning River District Hospital (“the hospital”). Together with another employee he was lifting a patient, when he suffered an injury initially diagnosed as strained abdominal muscles, or as a ruptured rectus abdominis muscle, which I take to be another description of the same condition.

2 On or shortly after 18 December 1987 the plaintiff was told by a Dr Wallman that he had a significant spinal disability, likely to adversely affect his capacity to practise as a physiotherapist, and that he should obtain legal advice. The plaintiff then retained the defendants as his solicitors, and on 5 January 1988 the plaintiff saw an employed solicitor, who told the plaintiff that any claim he might have had against the hospital was already time barred: section 14 of the Limitation Act 1969 (“the Act”); but that it might be possible to obtain an extension of the limitation period: section 58 of the Act. Later, an application under section 58 was made, but not in a timely manner. It was recognised that the application was therefore doomed, and it was abandoned.

3 The plaintiff sues the defendants for damages for negligence. He says that they failed to make a timely application under section 58, so that he lost the opportunity to succeed on that application, and therefore he lost the opportunity to obtain a judgment against the hospital for damages for the injury he sustained in the 1980 accident. The defendants concede that they were guilty of a breach of duty in failing to make the relevant application in a timely manner, but deny that the plaintiff suffered any loss in consequence of that breach.

4 Broadly speaking, the defendants raise three lines of defence. First, they say that the section 58 application would have failed; secondly, they say that the proposed action for damages would have failed; and thirdly, they say that the enactment of the Limitation (Amendment) Act 1990 operated, by virtue of the new section 60G of the Act, to restore to the plaintiff an opportunity to have the limitation period extended, which was at least as advantageous to him as the opportunity previously lost.

5 The defendants advised the plaintiff of the new legislation, and on their advice, he made a fresh application under section 60G. The hospital resisted that application, and the plaintiff, on the advice of the defendants, decided to withdraw it, if the hospital agreed not to seek an order for costs. The hospital was only prepared to compromise the application on the basis that, if it did not seek costs, there would be a verdict in its favour; and, by consent, that verdict was entered.

6    The first and second lines of defence involve a number of factual issues, which were explored in some detail on the present hearing. Because of the view I take in relation to the third line of defence, I will only summarise these factual issues.

7    The circumstances of the 1980 accident are in contention. The only witness to the accident who is now available to describe how the accident happened is the plaintiff himself, and he has given a number of versions which cannot be reconciled. Generally, he and another employee were lifting a patient, when he was injured. Arguably, but on the evidence not certainly, the accident occurred by reason of the negligence of the hospital. If the plaintiff had obtained an extension of the limitation period, and had sued the hospital, much more likely than not, the hospital would have sought and obtained a trial by jury, and success on that jury trial was far from certain. However, as the plaintiff says, the advice given to him by the defendants at the time was that, if he obtained the extension and sued, he would have had the opportunity to compromise that action on terms likely to result in an outcome more favourable to him than the mere redemption of his rights under the workers compensation legislation, and he has lost this opportunity.

8    There is also a substantial medical issue. The plaintiff did not complain of a back condition for some years; and the defendants contend now, and say that the hospital would have contended on the trial, that the plaintiff’s present (undoubted) back condition was not causally connected with the 1980 accident.

9 Whether the plaintiff would have succeeded on either the section 58 application or the section 60G application is also a matter of substantial factual dispute. In relation to the former application, the plaintiff faced the jurisdictional hurdle of establishing that some facts, falling within the category of “material facts of a decisive character”, as defined, only came within his means of knowledge outside the limitation period. The facts that he relies upon in this context are the fact that he was first told by Dr Wallman, on or just after 18 December 1987, that he had a significant back disability, and the further fact that he was then advised that this back disability might have a severe impact upon his capacity to practise his profession. The defendants point to evidence of a back condition known before this time, and to the fact that the plaintiff had earlier ceased working as a physiotherapist for a period of months, in consequence of a disability known to have resulted from the 1980 accident, even if not then diagnosed as a back condition; and these challenges to the plaintiff’s case against the hospital are obviously significant. The defendants also challenge the diagnosis now relied upon by the plaintiff, that his back condition is causally related to the 1980 accident, but this challenge seems weaker.

10 The defendants also say that the plaintiff would have faced the opposition of the hospital to both the section 58 application and the section 60G application, on the ground of prejudice arising from the lapse of time. The section 58 application was effectively abandoned at an early stage, but when the section 60G application was made, the hospital put on affidavit evidence suggesting prejudice; and the inability of the plaintiff to answer this evidence led the defendants and the counsel briefed by them on that application to advise the plaintiff to try to withdraw that application, if he did not have to pay the hospital’s costs.

11 I turn then with to the third line of defence. The defendants’ point is that, although the plaintiff had lost the opportunity to make a section 58 application, the effect of the 1990 legislation was to give him the opportunity to make an application under section 60G; and they say that he was therefore no worse off: by chance, as it were, the new legislation operated to put him in a better, or at least no worse position than he was in when he first consulted them, in early 1988

12 As a matter of theory, and so far as concerns this case, I accept this as correct. The 1990 legislation was remedial legislation, calculated to overcome perceived inadequacies of the Act, including the disadvantages to people such as the plaintiff arising from the obscurity and complexity of the language of sections 57 and 58, and the ideas expressed in those sections. To compare the jurisdictional barrier faced by the plaintiff in his section 58 application (establishing when material facts of a decisive character first came within his means of knowledge) with the simple test raised by section 60G (that it was just and reasonable to make an order) is to appreciate that the legislation was remedial; and this conclusion is reinforced if one remembers the torrent of criticism of the old legislation and its analogues, or reads the report of the NSW Law Reform Commission (Limitation of Actions for Personal Injury Claims, LRC 50), or the second reading speeches.

13 I do not understand this to be in issue, or that the legislation has been construed on any other basis. After its commencement, applicants commonly enough relied upon both sections 58 and 60G, and the Court commonly treated section 60G as providing the more effective remedy, so that in a practical sense, it was only appropriate to consider whether a remedy might be granted under section 60G.

14 However, that was not what happened in this case. Rather, because of what had happened earlier, the plaintiff relied solely upon section 60G. It does not seem to me that what actually happened on the section 60G application is determinative of this case. It is true, as the plaintiff says, that he gave instructions to withdraw that application on the advice of the defendants, but what he must now establish is that the breach of duty of the defendants resulted in loss; and in my view, once the Act was amended in 1990, it can only be said that the plaintiff suffered a relevant loss if the right which section 60G gave him was a right that was somehow less valuable to him than the right under section 58, which he had lost.

15 This seems to me to lead to an inquiry, not into what happened on the section 60G application that was actually made, or why that happened, but to an inquiry whether the plaintiff suffered loss by reason of the defendants’ breach of duty, that is, whether that breach actually resulted in loss; and what did happen on the section 60G application serves to throw light on this question, but that is all.

16 As I have said, the hospital resisted the application on the ground of prejudice, said to have arisen from the delay that had occurred. This resistance was in 1991, whereas if the section 58 application had been promptly prosecuted, it would have been dealt with in (or about) 1988. However, nothing seems to turn on this.

17 By 1991, the plaintiff was (quite understandably) unenthusiastic about the litigation. He wanted to protect his workers compensation rights, but they were not at risk, and the defendants advised him that the section 60G application might result in his being able to obtain a greater sum than would be available by way of redemption of his workers compensation rights, if he succeeded in his section 58 application, and then compromised his proposed claim for damages. The defendants offered their services and the services of counsel on a contingency basis, but he was concerned that he might become liable for the hospital’s costs, and, speaking generally and not intending to be critical, he was reluctant to invest time, money or effort in furthering the application. His financial position was difficult, and his back condition meant that he had to struggle to remain in practice.

18    There was an issue of fact as to whether he gave the defendants instructions to consent to a verdict for the hospital, as distinct from instructions to merely withdraw the application. Having regard to the evidence given by Mrs Geary in cross-examination, and to the fact that the plaintiff did not cross-examine any of the defendants’ witnesses, this issue must be resolved in the defendants’ favour, but in any event, the question does not seem to me to be important: as a practical matter, once the plaintiff gave instructions to withdraw the application, he abandoned all hope of recovering damages, or a sum of money by way of compromise of his claim for damages.

19 The plaintiff might succeed if he established that he was worse off in that he had to bring his application under section 60G in 1991, rather than under section 58 in 1988, but he did not attempt to show that his attitude changed by reason of this circumstance; and I leave this possibility out of account. Overall, I consider that he carried a lower theoretical burden in trying to satisfy the requirements of section 60G, and that otherwise the two applications carried substantially the same factual problems.

20    The hearing proceeded on the basis that if the plaintiff succeeded now, he would have to give credit for the value of his workers compensation rights, and that since his claim against the hospital in respect of those rights was listed for hearing in the Compensation Court on 8 February, the assessment of damages should be deferred. However, no formal order under Part 31 of the rules has been made so far.

21    Looking at the evidence, it seems likely that the plaintiff incurred some expense by reason of the defendants’ breach of duty, in that he incurred the expense of bringing two applications, rather than one; and it may be that there were other losses of a generally similar nature. Beyond that, on the view I have expressed, I do not, for the moment at least, see that the plaintiff has proved any recoverable loss.

22   I will adjourn the hearing until some suitable day in the near future. On that occasion the plaintiff should bring in short minutes containing an appropriate order under Part 31, and the parties should deal with any outstanding issues.

23    In case the litigation goes further, I record that I regard the plaintiff as an honest witness, but that his evidence is at times unreliable. Some of the events are so old that nobody could be expected to remember them, and he himself has said his memory is poor; and it seems clear that at times he has been emotionally vulnerable, by reason of his embarrassment at his medical problems, and/or the seriousness of his medical and financial problems, so as to adversely affect his capacity to lay down a good memory, or to retrieve it.

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Last Modified: 09/25/2000