Gibson, Gary John v Bennett, Rachel

[1999] TASSC 56

[1999] TASSC 56

CITATION                  Gibson v Bennett [1999] TASSC 56

PARTIES:  GIBSON, Gary John
  v
  BENNETT, Rachel

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M220/1998
DELIVERED ON:  19 May 1999
DELIVERED AT:  Hobart
HEARING DATES:  13 May 1999
JUDGMENT OF:  Underwood J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Applicant:  S J Cooper
             Respondent:  D J Gunson
Solicitors:
             Applicant:  Ogilvie McKenna
             Respondent:  Gunson Pickard & Hann

Judgment Number:  [1999] TASSC
Number of Paragraphs:  20

Serial No 56/1999
File No M220/1998

GARY JOHN GIBSON v RACHEL BENNETT

REASONS FOR JUDGMENT  UNDERWOOD J

19 May 1999

1. The issue on this application is whether "in all the circumstances of the case it is just and reasonable" to extend the period limited by the Limitation Act 1974, s5(1) for the bringing of an action by the applicant against the respondent for damages for negligent driving.

1. The relevant events occurred in the early hours of New Year's Day 1993.  The applicant, then aged 31 years, had been drinking beer and wandering around the area of the waterfront in Hobart in common, no doubt, with many other New Year's Eve revellers.  He was in the company of a number of friends.

1. At some time between about 2am and 4am that morning, the applicant was standing at the intersection of Macquarie and Argyle Streets, waiting to cross the latter in an easterly direction.  Two of his companions were with him.  The others were a little distance up Macquarie Street.  According to the applicant's affidavit, the three men started to cross the street when the green walk light came on.  When the applicant reached the centre lane, he and his two friends were hit by a car travelling north up Argyle Street and over the Macquarie Street intersection.  The applicant was thrown over the car and onto the ground.  Later than night one of his companions died from the injuries he sustained, but neither the applicant, nor the third young man, appeared to have been seriously injured in the accident.

1. Although the applicant went to the hospital, he received no treatment.  He deposed that he could recall telling the staff at the hospital that he was a "bit sore".

1. In his affidavit in support of the application, he deposed:

"15I noticed that I had suffered an injury to my left shoulder, but I put up with it.  I received no treatment.  I knew that my arm was crook, it used to lock up, but it was getting weaker and weaker.  First, however I found out that I had suffered a substantial injury [sic] is when my then solicitor received the report annexed hereto and marked with the letter 'A' from Mr P S H Browne, Orthopaedic Surgeon in July."

1. The applicant was and is a rigger by trade.  At the time of his accident in 1993, he was well aware of the existence of the Motor Accidents Insurance Board and, generally speaking, its statutory function.  On 10 May 1987, he suffered an injury in a motor cycle accident.  This accident occurred when he was following another motor cycle around a corner.  The leading bike went out of control on the loose gravel and the applicant, whilst manoeuvring his bike to avoid a collision, also lost control and suffered injury.  He was off work for quite some time.  He made a claim against the Motor Accidents Insurance Board.  It was accepted.  Medical expenses and statutory compensation for lost earnings were paid.  On 8 December 1988, the Board, on the advice of a medical practitioner, gave notice of intention to stop payments.  The applicant went to see a solicitor to ascertain his entitlement to "compensation".

1. The advice the applicant received was that he had "no case" because the accident was a single vehicle accident.  The solicitor lodged an appeal to the Motor Accidents Compensation Tribunal against the decision to terminate payment of statutory benefits, but the appeal was not pursued.

1. In addition to his dealings with the Board following his motor cycle accident, the applicant was aware from his employment as a rigger, that employees injured in the workplace could recover damages from the employer if those injuries had been caused by the carelessness of the employer.

1. The applicant conceded, and I find, that at the time of his accident on 1 January 1993, he knew that if he was injured in a motor vehicle accident as a result the negligence of another, he could sue to recover damages.  I also find that the applicant then knew that an appropriate first step to taking such action was to consult a legal practitioner, just as he had done after his 1987 motor cycle accident.

1. However, the applicant did not see a solicitor, nor take any step to recover damages for injuries sustained on 1 January 1993 within the time limited by the Limitation Act, s5(1).

1. In his cross-examination on this application, the applicant elaborated on the reason given in par15 of his affidavit (set out above) for not taking any action to recover damages.  He said that in the accident he suffered a sore left hand and shoulder.  He said he did not lodge a claim with the Motor Accidents Insurance Board because he thought he would "come right".  He said that until he saw Dr Browne in June 1998 and obtained the report referred to in his affidavit, "now and then I had problems with my shoulder."  He added, "it was there and I put up with it."  He said that the disability in the left shoulder did not prevent him going to work, but it did stop him doing some of the things he was required to do as a rigger when at work.

1. I find that at the time of the accident and subsequently, the applicant knew that he had the right to sue the respondent to recover damages for the injury sustained to his shoulder.  However, I have no reason to doubt his evidence that he was unaware of any time limit within which to commence such action.  I find that prior to his visit to Dr Browne in June 1998, the applicant decided not to commence proceedings, nor to make any claim with respect to his shoulder.  I find that the reason for that decision was at first because he thought the injury would heal and then because it was not a major source of concern to him.

1. In October 1997, the applicant was working as a contract rigger at the Savage River Mine.  There he hurt his back.  He had an accident insurance policy and made a claim against the insurer because the injury to his back prevented him working.  Some dispute arose with respect to this claim, so the applicant consulted Mr Rainbird, solicitor.  Mr Rainbird sent the applicant to see Mr Patrick Browne, orthopaedic surgeon, to obtain a report on the nature, extent and cause of the back injury.  In the course of taking a patient history, and in the course of examination, Mr Browne discovered the disability in the applicant's left shoulder.  Mr Browne wrote a report.  In the main, it is concerned with the applicant's back disability.  I set out below all the references to the applicant's shoulder injury in Mr Browne's report and accompanying letter:

"Mr Gibson told me that some 6 years ago he was involved in a road traffic accident when he was a pedestrian knocked down by a car.  One of his friends who was with him was killed in this accident.  He told me that at the time his main injury was to his left shoulder and arm.  However he was so concerned with his friend that he did not seek any medical advice and I understand that he had no particular time off work.  He told me that he has had some occasional problems with his left shoulder since this accident.
…

On examination of the left shoulder I noted that abduction movement was only to 80 degrees and flexion movement to 105 degrees.  External rotation movement was very limited.  Internal rotation movement was slightly limited.  The girth of the left upper arm was one centimetre less than that on the right side (Mr Gibson is right handed)."

"I note that Mr Gibson had a car accident some 6 years ago.  He appears to have significant problems with his left shoulder which at present are undiagnosed.  I consider that Mr Gibson will have problems finding work in the future.  He has managed to work with his left shoulder as it is for many years, but he might well find that in the future this shoulder lesion combined with the lesion he has in his back could make it very difficult for him to find work.  Unfortunately I think it unlikely that any particular treatment for the left shoulder would help him at the present time."

1. As a result of Mr Browne's letter, the applicant asked Mr Rainbird to do what he could to recover damages for injury sustained to the shoulder.  As Mr Rainbird had apparently represented the respondent at the inquest into the death caused in the accident on 1 January 1993, or in some related proceedings, the applicant was referred to his present legal adviser.

1. There is no suggestion that his present legal adviser did not act promptly.  The writ and this application were filed on 19 August 1998, almost five years and seven months after the cause of action arose and less than six months before the right to commence proceedings was absolutely extinguished.

1. The principles upon which the statutory discretionary power is properly exercised are very well settled.  The applicant carries an onus to establish that it is reasonable in the circumstances of the case to extend the time within which proceedings may be commenced.  See Klein v DomusPty Limited (1963) 109 CLR 467. In considering whether that onus has been discharged, it must be borne steadily in mind that in the enactment of the Limitation Act, s5, the legislature expressed the view that "the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated", per McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553. A few sentences later, his Honour said:

"A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.'  Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635. But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. 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."

1. In the present case, the period of delay is very long.  By reason of it, the respondent has suffered prejudice in the sense articulated by McHugh J in the Brisbane South Regional Health Authority case at 551 - 552. In particular, the respondent will have great difficulty marshalling evidence to refute a claim that the applicant's present disability in his shoulder is causally related to the 1993 accident. The disability in the left shoulder is presently undiagnosed. In between the date of the accident and the applicant consulting Mr Browne, that shoulder has, no doubt, been frequently subjected to the stresses and strains that are of necessity, part of the daily work of a rigger. As the applicant has not sought medical treatment since the accident, there is no radiological evidence of the condition of the shoulder immediately after the accident in 1993. Indeed, on the critical issue of causation, ascertainment of what has happened to that shoulder over what is by now a period of almost seven years, appears to be entirely dependent upon the applicant's sketchy memory. In support of the application, Mr Cooper submitted that it was not until receipt of Dr Browne's report in 1998 that the applicant realised the significance of the shoulder injury. Whilst I accept that there is some force in this submission, there was no suggestion in the evidence that the symptoms and disabilities in the shoulder were any worse in 1998 than they had been earlier and they were not considered sufficiently significant by the applicant to warrant him consulting a medical practitioner or otherwise doing anything about them.

1. It is beyond doubt that on the issue of liability, the applicant has established a very strong prima facie case, but that alone is insufficient to enable him to discharge the onus he carries of showing that it is just as between the parties to enable this litigation to proceed, notwithstanding the very substantial lapse of time.

1. Although the applicant was unaware of any limitation provision, he was well aware of his right to take proceedings to recover damages with respect to his shoulder injury and, for reasons which seemed best to him, he decided not to pursue that remedy.  As a result of that decision, the period within which he was entitled as of right to commence proceedings expired almost two and a half years before this application was filed and it is now unjust as between the parties, particularly having regard to the prejudice flowing from delay, to permit the applicant to now agitate a claim that has been brought to an end by the provisions of the Limitation Act. 

1. In all the circumstances the applicant has not discharged the onus that lies upon him.  The application is dismissed.