George v Ballarat City Council (Ruling)
[2024] VCC 74
•16 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-04591
| KAREN GEORGE | Plaintiff |
| v | |
| BALLARAT CITY COUNCIL (ABN 37 601 599 422) | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2024 | |
DATE OF RULING: | 16 February 2024 | |
CASE MAY BE CITED AS: | George v Ballarat City Council (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 74 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – extension of time application
Legislation Cited: Limitation of Actions Act 1958 (Vic), s5(1), s27K
Cases Cited:Tsiadis v Patterson (2001) 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Winter-Cooke v Winter-Cooke [2022] VSCA 264; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Transport Accident Commission v Murdoch [2020] VSCA 98; Delai v Western District Health Service [2009] VSC 151; Davies v Nilsen [2015] VSC 584; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Ruling:Leave granted to extend time.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Johnstone | Carbone Lawyers |
| For the Defendant | Ms C Alden | Minter Ellison |
HER HONOUR:
Introduction
1The plaintiff, Karen George, commenced a common law proceeding for pain and suffering damages and economic loss damages with respect to injuries she alleges she sustained on 24 March 2018.
2The cause of action is subject to the provisions of the Limitation of Actions Act 1958 (Vic) (“the Act”) and s27D(1), which sets a three-year limitation period.
3The proceeding was issued in this Court on 28 October 2022.
4The parties agreed that the limitation period expired on 23 March 2021.
5The proceeding was issued one year and seven months after the expiration of the limitation period.
6The proceeding is listed for hearing in this Court on 7 May 2024 as a jury trial with an estimate of ten days.
7The plaintiff has applied for an extension of time in which to bring the proceeding (“the application”).
8At the hearing of the application on 1 February 2024, Mr Phillip Johnstone of Counsel appeared on behalf of the plaintiff and Ms Coral Alden of Counsel appeared on behalf of the defendant.
The incident
9The plaintiff alleges that she was injured on 24 March 2018 when she was riding a bicycle along Wendouree Parade, Lake Wendouree (“the incident”).
10In her Statement of Claim dated 28 November 2022, the plaintiff alleges that she rode into a pothole which caused her to fall and sustain injury. This description of the accident differs from the description in her affidavit filed in this application which are referred to later in this Ruling.
11The plaintiff alleges that the defendant was responsible for the maintenance and repair of the road and owed her a duty of care.
12It is alleged that the defendant breached its duty of care and was negligent.
13The defendant denies the allegations.
What is the dispute?
14The parties agree that the claim is statute barred.
15The dispute is whether it is just and reasonable to extend the period of limitation.
What are the legal principles?
16Section 27K of the Act is the legislative provision that enables an application to be made to the Court. It permits the Court to extend the limitation period provided that it is just and reasonable to do so, subject to regard being made of all the circumstances of the case including the non-exhaustive list of matters set out in s27L of the Act.
17In determining whether the plaintiff has discharged her onus, the Court is required to consider all the circumstances of the case and to synthesise all relevant considerations, including those set out in s27L of the Act.[1]
[1] Tsiadis v Patterson (2001) 4 VR 114 (“Tsiadis”) at paragraph [33] (per Buchanan JJA)
18Section 27L relevantly provides:
“27L Matters to be considered in determining applications for extension of limitation period
(1) In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.
(2) To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a) whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff’s loss; and
(c) the nature of the defendant’s conduct.
… .”
19The fundamental rationale and purpose of limitation periods is set out in the oft-cited statement of McHugh J in Brisbane South Regional Health v Taylor,[2] which was recently summarised as follows by the Court of Appeal in Winter-Cooke v Winter-Cooke:[3]
“The first observation is that there is a general public interest in ensuring that litigation is brought, prosecuted and resolved in a timely manner. A statutory limitation period represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within that period, notwithstanding that the enactment of that period may result in a good cause of action being defeated. The discretion to grant an extension of time should be seen as requiring the person applying for it to show that his or her case is a justifiable exception to the rule that the welfare of society is best served by the limitation period in question. Statutory limitation periods advance the administration of justice because they ensure that members of the public are able to order their personal and business affairs on the basis that, once the limitation period has expired, their rights and interests are no longer at risk of litigation.[4]
(Footnotes omitted.)
[2](1996) 186 CLR 541 (“Brisbane South”) at 552-553
[3][2022] VSCA 264 (“Winter-Cooke”)
[4]Winter-Cooke at paragraph [89] (per Kyrou, Macaulay JJA and J Forrest AJA)
20It is noted that in Griffiths v Nillumbik Shire Council,[5] it was said that:
“To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”
[emphasis added]
[5][2022] VSCA 212 (“Griffiths”) at paragraph [66]
21The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to her common law proceedings.
The proceeding
22The plaintiff relied on an affidavit sworn by her on 3 November 2023, together with exhibits. Parts of the affidavit were redacted during the hearing.[6]
[6]Affidavit of the plaintiff, Karen George, sworn 3 November 2023 (as redacted) with exhibits - plaintiff’s exhibit 1
23In addition, she also relied on an affidavit of her solicitor, Jennifer El Khoury, sworn on 6 November 2023, together with exhibits. Parts of that affidavit were also redacted during the hearing.[7]
[7]Affidavit of the plaintiff’s solicitor, Jennifer El Khoury (as redacted), sworn 6 November 2023 with exhibits - plaintiff’s exhibit 2
24The defendant did not rely on any affidavits.
25For this ruling, I have considered the evidence and the oral submissions made.
Affidavit of the Plaintiff
26The plaintiff’s affidavit sets out in detail the treatment she received after the incident.
27Immediately after the incident, the plaintiff was transported to the Ballarat Base Hospital. Although her affidavit is silent on this point, I have inferred that she was taken from the incident site to the hospital by ambulance.
28She had an x-ray at the hospital and was prescribed Targin and Endone.
29A right proximal humerus fracture was diagnosed.
30On 27 March 2018, she consulted her general practitioner, Dr Neil Livingston, and was referred to an orthopaedic surgeon, Mr Shaun English.
31She first saw Mr English on 29 March 2018. She attended him on three more occasions.
32She had a further seven x-rays of her right shoulder – conducted on 29 March 2018, 3 April 2018, 16 April 2018, 15 May 2018, 18 June 2018, 16 October 2018 and 30 November 2020.
33She had four CT scans of her right shoulder - conducted on 29 March 2018, 22 November 2018, 28 November 2018 and 28 October 2021.
34She had an ultrasound of her right shoulder on 18 June 2018.
35She had an ultrasound-guided right shoulder injection on 21 June 2018.
36In September 2018, she was referred to a second orthopaedic surgeon, Mr Luke Spencer.
37She consulted Mr Spencer in October 2018. He recommended an MRI scan and a right shoulder hemi-arthroplasty.
38She had two MRI scans - conducted on 16 October 2018 and 9 December 2020.
39In November 2018, she was referred to a third orthopaedic surgeon, Mr Ashley Carr.
40On 20 December 2018 she had a right shoulder hydrodilatation.
41It is not clear from her affidavit what, if any, treatment she had between December 2018 and November 2020.
42In November 2020, she attended her GP again and a further x-ray was performed.
43In December 2020, she was referred to a fourth orthopaedic surgeon, Mr Shane Barwood.
44On 9 February 2022, she had a right shoulder replacement operation.
45By early 2022, the plaintiff says that she felt she had exhausted all forms of treatment. She was continuing to suffer from ongoing shoulder pain and restrictions.
46She says that she contacted the defendant about the incident. She says that there were a series of letters sent to her by the defendant responding to her complaints. She annexed the correspondence to her affidavit.
47The plaintiff believes that the defendant’s responses were unsatisfactory.
48She consulted her current solicitors on 26 October 2022.
49She says she was not aware of the three-year time limit until she consulted solicitors in October 2022.
50She says she has ongoing pain and restrictions with her right shoulder.
51The injuries have interfered with her capacity to work, but she has been able to work effectively on a full-time basis apart from an unspecified period following the incident.
52She was employed with Ambulance Victoria as a Records Management Officer at the time of the incident.
53She changed employment in November 2021 and again in October 2022.
54She is currently employed as a social worker on a full-time basis. She says her duties are sedentary in nature.
Affidavit of Jennifer El Khoury
55Jennifer El Khoury is the plaintiff’s solicitor.
56She confirmed that she received instructions on 26 October 2022 and that proceedings were issued on 28 October 2022.
57There were significant parts of the solicitor’s affidavit which could be more properly identified as submissions and I have treated them as such.
Section 27L considerations
(a) Section 27L(1)(a): The length of and reasons for the delay on the part of the Plaintiff
Plaintiff’s submissions on delay
58The following submissions were made on behalf of the plaintiff:
· the plaintiff was under the mistaken impression that she had to exhaust all forms of treatment prior to bringing a claim;
· the plaintiff had hoped that she was going to make a recovery from her injuries earlier;
· it was only in early 2022 in the context of having a total shoulder replacement, that the plaintiff realised her condition was more significant than she originally thought;
· once the plaintiff realised that her medical condition was not improving, she engaged with the defendant in relation to this claim;
· while she was engaging with the defendant, she was unaware of her legal rights and what steps she should be taking;
· the plaintiff was unaware of the three-year limitation period until she attended solicitors in October 2022 – at which time she was advised that the limitation period had expired;
· steps were taken speedily once the plaintiff instructed solicitors – the generally endorsed Writ was issued two days after the first consultation, a Statement of Claim was drawn in November 2022 and the Writ and Statement of Claim were served on the defendant on 2 December 2022.
Defendant’s Submissions on delay
59No submissions were made by Counsel for the defendant on this issue.
Findings on delay
60In an ideal world, a plaintiff would have been expected to be more proactive during the three-year period immediately after the incident.
61While some may form the view that the plaintiff has been a little cavalier in protecting her own interests, given the nature and the extent of the medical treatment she was undertaking during the three-year period, I have formed the view that her explanation for the delay is reasonable.
62It was reasonable that the plaintiff, whilst undergoing active medical treatment, was hopeful that her condition would either improve significantly or be ameliorated.
63There may be differing views as to whether a delay of one year and seven months is significant.
64In my view, in this case it is not, as the defendant had been put on notice of the alleged incident and had, according to its own correspondence, conducted an inspection of the area in question shortly before the alleged incident.
65For those reasons, I do not find the delay was significant, and I accept the plaintiff’s explanation in that regard.
(b) Section 27L(1)(b): The extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
Plaintiff’s submissions on prejudice
66The plaintiff submitted that the defendant had not identified any prejudice.
Defendant’s submissions on prejudice
67The sole submission made by the defendant was that it would lose the benefit of the statutory defence if the application to extend time was granted.
Relevant principles on assessing prejudice
68In considering the question of prejudice, I have applied the following principles:
(a) the relevant period of delay for the purpose of assessing prejudice commences from the accrual of the cause of action rather than the expiry of the limitation period;[8]
[8] Transport Accident Commission v Murdoch [2020] VSCA 98 at paragraph [83]
(b) it is inherent in the requirement to assess the “extent to which there is [or is]likely to be prejudice”, and the Court must consider not just established prejudice but also potential prejudice. The Court is not limited to considering only prejudice which is more probable than not to occur. Possible prejudice, and the likelihood it will occur, is also a relevant factor;[9]
(c) there is a general presumption of prejudice that arises when proceedings are commenced outside a statutory limitation period, particularly where there has been a long delay.[10] As said by McHugh J in Brisbane South:
“… sometimes, perhaps more often than we realise, the deterioration in the quality [of justice] is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. … it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing the proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[11]
(d) when a defendant relies upon specific prejudice, it bears the evidentiary onus.[12] If the defendant satisfies that evidentiary onus, the burden rests upon the plaintiff to establish that it is nevertheless just and reasonable to grant an extension of time;
(e) the gravity of the prejudice suffered by the defendant may be linked to the question of whether a fair trial can be had. In Davies v Nilsen,[13] J Forrest J cited the following passage from his earlier decision in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[14]
“… in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair.’ A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”[15]
[9] Tsiadis at 120, paragraph [23]
[10] Brisbane South at 556 per McHugh J
[11]Brisbane South at 551 per McHugh J, applied in Delai v Western District Health Service [2009] VSC 151 at paragraph [24]; Tsiadis at 123, paragraph [32]
[12] Brisbane South at 547 and 555-556
[13] [2015] VSC 584 (“Davies”)
[14] [2007] VSC 517
[15] Davies at paragraph [108]
Extent of prejudice
69By the time the proceeding was issued in 2022, a period of four years and seven months had elapsed since the incident.
70Even though the defendant did not refer to any prejudice, other than the loss of the statutory defence, memories may have faded.
71There is no requirement on the defendant to identify evidence which has been lost; it is the very nature of the prejudice that it may not be possible to know how much has been lost. This is the presumed general prejudice suffered by the defendant by reason of the delay.
72The loss of the statutory defence is a loss that every defendant faces in an application such as this. It is not determinative of the issue of whether it is just and reasonable to grant an extension of time. It is one of the factors that the Court will consider.
Findings on prejudice
73As mentioned, the defendant did not assert either general or specific prejudice.
74Given the relatively short period of delay in this case, the Court finds that there is no appreciable prejudice occasioned.
(c) Section 27L(1)(c): The extent, if any, to which the Defendant had taken steps to make available to the Plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the Defendant
75It is not necessary for the Court to make any specific findings under this subsection as neither party made submissions on this.
(d) Section 27L(1)(d): The duration of any disability of the Plaintiff arising on or after the date of discoverability
76This subsection is not relevant to the application.
(e) Section 27L(1)(e): The time within which the cause of action was discoverable
77This subsection is not relevant to the application.
(f) Section 27L(1)(f): The extent to which the Plaintiff acted promptly and reasonably once she knew that the act or omission of the Defendant to which the injury of the Plaintiff was attributable, might be capable, at that time, of giving a rise to damages
78Given the state of the medical intervention, I accept it was reasonable for the plaintiff to delay consulting a solicitor until 26 October 2022.
79I accept that the solicitors acted promptly after receiving instructions. A generally endorsed Writ was issued on 28 October 2022 and the Statement of Claim is dated 28 November 2022.
80Neither party made submissions under this sub-section.
(g) Section 27L(1)(g): The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice, and the nature of any such advice that she may have received
81The medical history is set out above and I will not repeat it here.
82There is no suggestion in this case that there is a potential cause of action against any former solicitors.
83The plaintiff did not seek legal advice earlier as she was under the mistaken impression that she had to exhaust all forms of treatment prior to bringing a claim. She was not challenged on this.
84As previously stated, once the plaintiff consulted solicitors in October 2022, steps were taken quickly.
(h) Section 27L(2)(a): Whether the passage of time has prejudiced a fair trial of the claim
85A consideration of this subsection overlaps with the discussion above regarding s27L(1)(b).
86As discussed earlier, the relevant test is whether a defendant can have a fair trial, not a perfect trial.
87There is no evidence before the Court to suggest that the defendant would not be able to have a fair trial.
(i) Section 27L(2)(b): The nature and extent of the Plaintiff’s loss
88No medical material was filed in this application.
89The only information before the Court about the nature and extent of the plaintiff’s loss is found in the plaintiff’s affidavit. She has not been challenged on any of those issues.
90Consequently, without making a formal finding, it appears to the Court that the plaintiff suffered a shoulder injury in the incident which has necessitated medical treatment including surgery.
(j) Section 27(2)(c): The nature of the Defendant’s conduct
91Despite the affidavit material referring to some discontent about the response of the defendant to the plaintiff’s complaints in 2022, no submissions were made by either party relevant to this subsection.
Synthesising the competing considerations
92The granting of an extension of time involves the synthesising of factors including those detailed in s27L of the Act.
93In doing so, the Court should exercise its discretion if satisfied it is just and reasonable to do so.
94There is a conflict in the material as to the precise circumstances of the incident.
95The plaintiff says in her affidavit that she was cycling along Lake Wendouree and attempted to move from the road to the footpath in a safe manner and as she was crossing over the tram tracks, she lost traction and fell off her bike.[16]
[16]Plaintiff’s exhibit 1 at paragraph [2]
96This version of events is replicated in the plaintiff’s solicitor’s affidavit.
97The Court notes that this is a different version from that which is pleaded in the Statement of Claim.
98Whether the plaintiff was injured when her bicycle went into a pothole or whether she lost traction whilst crossing the tram tracks, is not relevant to this application. The Court makes no finding as to the circumstances of the incident.
99For the reasons detailed above, the Court makes no criticism of the plaintiff for not bringing her claim sooner.
100The Court is conscious that if an extension of time is not granted, the plaintiff will be precluded from seeking common law damages.
101As part of the synthesising process, it is often necessary to consider whether the defendant’s presumptive and specific prejudice is so great that a fair trial is not possible.
102It is relevant that the defendant did not rely on prejudice other than the general loss of the limitation defence currently available to it.
103Consequently, I consider any prejudice, if it exists, is of little or no significance.
104The Court notes that the incident was reported to the defendant in early 2022 and the subsequent period of delay is minimal.
Conclusion
105The factors set out in s27L of the Act are not exhaustive. The decision to extend the period of limitation is to be based on all relevant circumstances of the case.
106There is no doubt that there are important policy considerations underlying limitation periods.
107Limitation periods have a purpose and are a formidable hurdle, and adopting the Griffiths’ analysis, “not just an easily movable line in the sand”.[17]
[17] Griffiths at paragraph [66]
108Having said that, the line is also not a fixed line in the sand. The question is whether it is just and reasonable to move it.
109I place particular significance on my findings that the plaintiff has provided a reasonable explanation for her delay and that an acceptably fair trial is likely, notwithstanding the delay.
110Any prejudice to the defendant arising from the delay is not such that the defendant would not be able to adequately defend itself against the claim.
111In this case, having carefully considered all the above circumstances, I am satisfied that it is just and reasonable to grant an extension of time under s27K.
112I will hear from the parties in relation to the appropriate form of order.
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