Gesmundo v City of Canning - [2000] WADC 179

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: GESMUNDO -v- CITY OF CANNING [2000] WADC 179

CORAM: COMMISSIONER REYNOLDS

HEARD: 26 APRIL, 18 MAY, 8 & 15 JUNE 2000

DELIVERED : Delivered Extemporaneously on 23 JUNE 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIVO 250 of 1999

BETWEEN: PAUL GESMUNDO
Plaintiff
AND
CITY OF CANNING
Defendant

Catchwords:

Application pursuant to s 47A of the Limitation Act to commence proceedings - Reasonable cause - Material prejudice - Turns on own facts.

Legislation:

Limitation Act 1935-78 as amended

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr M N Zusman
Defendant: Mr C C Rimmer

Solicitors:

Plaintiff: Bradford & Co
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Alcoa of Australia Ltd v The State Energy Commission of Western Australia, unreported; SCt of WA; Library No 940109; 9 March 1994
Howe v City of Nedlands & Ors, unreported; SCt of WA; Library No 980128; 23 March 1998
Wilder v Karratha College [1999] WASCA 241

COMMISSIONER REYNOLDS: Before me for determination is an application by the plaintiff for leave pursuant to s 47A of the Limitation Act 1935-78 as amended ("the Act") to commence an action against the defendant for damages in respect of an accident which occurred on 26 September 1996.
The plaintiff has filed three affidavits in support of his application and the evidence I refer to is contained in his affidavits unless I indicate otherwise.
In 1992 the defendant, at the plaintiff's request, modified the off-road driveway in front of the plaintiff's house from bitumen to cement. After the modification was completed the plaintiff noticed a ridge about six inches high and running about six metres in length on both sides of the driveway between the roadway and the front of his house. The plaintiff says that he complained to the defendant about the ridge but nothing was done. He also says that as time passed by grass on the side of the driveway grew over the ridge.
On 26 September 1996 the plaintiff was helping his son load groceries into his son's car which was parked on the street in front of the plaintiff's house. As the plaintiff was walking back to his house he turned back and looked towards the car and noticed his grand-daughter's balloon drifting away and so he chased after it. He ran across his driveway and tripped on the ridge along one of the sides of the driveway, lost balance and then landed heavily on the driveway of his next door neighbour. As a result of the fall he injured his left eye and was bleeding from the eye, nose and mouth.
The plaintiff has had deteriorating vision since 1982 and in 1996 his general practitioner diagnosed cataracts on both eyes and in mid-1996 referred the plaintiff to an ophthalmologist, Mr Wham.
On 11 September 1996 a cataract was removed from the plaintiff's left eye.
Following the accident on 26 September 1996 the plaintiff has undergone a number of operations on his left eye.
The plaintiff says that he didn't form an intention to commence proceedings until early 1999 because up until then he had never truly realised the severity of the injury to his left eye. He said it wasn't until the beginning of 1999 that his medical advisers told him that there was really nothing more they could do for his left eye and that his vision would remain in that extremely deteriorated state.
The plaintiff says that the defendant will not be prejudiced because the ridge hasn't changed much since it was put there. Phillip Cumming who has mowed the lawn at the plaintiff's house since 1992 stated in his affidavit sworn 24 January 2000 that the ridge remains pretty much the same as it was when it was first constructed.
The defendant opposes the application and submits that there is no reasonable cause for the delay and that it would be materially prejudiced in its defence if leave was granted.
Shane Purdy, an employee of the defendant, stated in his affidavit sworn 10 January 2000 that the first notice the defendant received of the accident was by way of a letter from the plaintiff's solicitors dated 5 October 1999, about three years after the date of the accident.
Mr Purdy stated in his affidavit that the defendant is materially prejudiced by not having had the opportunity of having the plaintiff medically examined in relation to his eye injury closer to the time of the accident by a medical practitioner of its choice.
Mr Purdy also stated that the defendant would be materially prejudiced because its supervisor at the time of the modification of the driveway no longer works with the defendant and the concreter responsible for the work has died.
For leave to be granted pursuant to s 47A of the Act the court must be satisfied that the applicant's failure to give the required notice or delay in bringing the action was occasioned by any one or more of the following three things:
•mistake, or
•any other reasonable cause, or
•that the defendant would not be materially prejudiced in its defence,
AND in addition to any one or more of those three alternatives that it is just to grant leave.
A number of medical reports are attached to the plaintiff's first affidavit.
In a report dated 22 October 1996 from Dr Giubilato, Ophthalmology Registrar to Dr North at Royal Perth Hospital, he stated that the plaintiff was diagnosed with a ruptured cataract extraction wound and left inferior retinal detachment. The plaintiff underwent an operation. On the second day after the operation it was necessary to take him back to theatre for further repair. He was required to lie face down as much as possible.
On 5 February 1997 Dr D'Souza, of Royal Perth Hospital, reported that the plaintiff underwent gas fluid exchange on 16 December 1996 for persistent retinal detachment. He was discharged on 27 December 1996 for follow up in the Eye Clinic.
On 20 May 1997 Dr Burvill, of Royal Perth Hospital, reported that the plaintiff was re-admitted to hospital on 12 May 1997. He stated that the plaintiff has had a complicated course following a cataract wound rupture. Dr Burvill also stated that the plaintiff now has a retinal detachment requiring a vitrectomy and silicone oil instillation. The plaintiff was an inpatient from 19 May to 22 May 1997 when this procedure was performed and was then referred to outpatients.
Dr Giubilato further reported on 10 September 1997. His report shows that the plaintiff was further hospitalised on 4 August to 6 August 1997 for removal of silicone oil in his left eye with the requirement for follow-up in the outpatients' clinic.
On 11 October 1999 Mr Wham reported to the plaintiff's solicitors. He had first seen the plaintiff in relation to his cataracts on 26 July 1996 and he performed the cataract surgery in September 1996. He reported that had the accident not occurred the plaintiff's prognosis for normal vision was excellent. On examination on 6 October 1999 the plaintiff had no useful vision in his left eye with no likelihood of his left visual acuity improving.
The plaintiff has stated very little at all in his affidavits about his visual capacity or incapacity from about the end of 1997 until February 1999 save that he had been receiving medical treatment for his injuries until February 1999. In particular the plaintiff has given no indication at all on when and how long he has had no useful vision in his left eye.
Having regard to what evidence is before me, which includes the medical reports to which I have referred, I am far from satisfied that the plaintiff would not have realised before 1999 that he had a serious problem with his left eye as a result of his fall on 26 September 1996. On the evidence before me I am not satisfied that there is a reasonable cause for the plaintiff's failure to give the required notice under s 47A of the Act.
Given the medical attention that the plaintiff has been receiving I do not think that it could be reasonably suggested that the defendant would be materially prejudiced because of not being able to require the plaintiff to attend on a medical practitioner of its own choice at an earlier point in time.
The other aspect of material prejudice in this case relates to the defendant's inability to carry out its own investigation or cause an investigation to be carried out by someone else on its behalf of the scene of the accident proximate to the time of the accident including in particular an inspection of the driveway and taking photographs of it. Notice was not given until just over three years after the accident. It is the loss of being able to promptly inspect after the accident in circumstances where the driveway had been modified several years before the accident rather than simply because the supervisor of the works no longer working for the defendant or to the concreter having died that gives rise to material prejudice in this case.
There is no suggestion in this case that the plaintiff's failure to give notice was occasioned by a mistake.
Given these findings and the way that s 47A is drafted it is not necessary for me to consider whether or not it would be just to grant leave.
For all of these reasons the plaintiff's application is refused.