Gill v Woolley

[1990] TASSC 105

Serial No B28/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Gill v Woolley [1990] TASSC 105; B28/1990

PARTIES:  GILL, Nicholas J
  v
  WOOLLEY, Thomas W

FILE NO/S:  MA54/1989
DELIVERED ON:  18 June 1990
JUDGMENT OF:  Neasey J

Judgment Number:  B28/1990
Number of paragraphs:  8

Serial No B28/1990
List "B"
File No MA54/1989

NICHOLAS J GILL v THOMAS W WOOLLEY

REASONS FOR JUDGMENT  NEASEY J

18 June 1990

1. This is an appeal from a decision of the Master made on 12 May 1989, whereby he extended the time fixed by the Limitation Act 1934 for the making of a claim for damages by the respondent in respect of injuries sustained by him on 10 December 1982. The general basis upon which the appeal has been argued is that the Master made the wrong decision in all the circumstances as to whether it was just and reasonable as between the parties to extend time. No specific error was alleged in the Master's understanding of the facts or his application of correct principles of law.

1. The respondent is a police officer holding the rank of Inspector of Police at the time this application was initiated. He was sitting in a police vehicle on a public street at Howrah on the night when the accident occurred. The police vehicle was correctly parked at the side of the road when another vehicle ran into its rear. The respondent's head was jerked back by the force of the impact and he felt immediate pain in his neck, which persisted thereafter. There could presumably be no doubt about the liability of the driver of the vehicle who collided with the police car because that driver was in due course convicted of having a blood alcohol content at the time the impact occurred well beyond the statutory limit.

1. The applicant was examined at the hospital soon after the accident and given some treatment. On the following day, he completed a notice of accident form in  accordance with police standing orders. On the form he indicated that whether he intended to make a claim for benefits under the Motor Accidents (Liabilities & Compensation) Act 1974 depended upon the outcome of his injury. Thereafter, the respondent attended medical practitioners on a total of nineteen occasions between the date of the accident and October 1987, because of pain in his neck. He was given treatment on these occasions, which was partially successful, and he needed to take only two days or so of time off work as a result of the accident. Towards the end of July 1987, he experienced increasing pain in the neck, and other symptoms.

1. On 23 October 1987 the respondent wrote a letter to the officer in charge of his division, in support of an application which he was then making for seven days' sick leave, due to the pain and other symptoms he was experiencing. In that letter, the respondent set out details of the progress of his injury, and of treatment and the like, and concluded by saying, "I bring this matter to your notice in case my condition deteriorates in the near future and also whether this matter should be brought to the notice of the Motor Vehicle Accident Insurance Board". It appears that the respondent's letter wended its way slowly through police channels, and that he did not receive a reply until 13 October 1988, nearly a year later. This reply was in the form of a letter from the Assistant Commissioner advising him that he might have a common law claim, but that there was a six year limitation period during which he could maintain his action, and that he should immediately seek legal advice.

1. This the applicant did. His evidence, all of which was accepted by the Master, was that he did not learn of the three year limitation period until he had this consultation with a solicitor. The respondent deposed that he had always had a belief, derived from advice his father had given him as a child, that there was a seven year period during which a claim could be made for injuries suffered in an accident, and he had never had occasion to question that belief. Notwithstanding the fact that he had attained the rank of Inspector of Police, his background was relatively unsophisticated, and the nature of the work he had done as a police officer had also been relatively routine, and it had not brought him into contact with details of motor accident cases, nor with claims made by persons injured in such cases, including police officers. Also, he said, it was not unusual in his experience for delays of the kind which he had experienced in this matter to occur in relation to correspondence going through the Police Department. The learned Master referred to the respondent as "a prisoner of the (police) system", and it seems that there is substance in that observation in the sense meant.

1. I am in agreement with the manner in which the Master approached the issues in this case, and his application of the relevant principles of law to it, and accept that the considerations which he reviewed are all relevant matters to take into account. I appreciate of course that an appeal to a judge from a decision of the Master requires that the judge make his own independent evaluation of the case, and reach his own conclusion thereon, giving such weight to the Master's decision as he thinks it should be given. Therefore I do not propose to canvass in detail the matters to which the Master referred, but, in addition to the agreement with the Master which I have stated, only to express my own view of the justice of the case in general terms.

1. It is clearly established here that the respondent was in genuine ignorance of the existence of a three year limitation period, and had a genuine belief that the actual period was seven years. It might be argued that it was excessively naive for an inspector of police to be in such a state of ignorance about the law in relation to a limitation of time to commence an action at common law in respect of injuries sustained in an accident. But when it is reflected that ordinary experience indicates that ignorance of the limitation period in Tasmania is not uncommon, and that even the Police Department solicitor in the present case believed at the time of swearing her affidavit that the actual limitation period was six years, the point made about the respondent's ignorance of the law loses much of its force. I think that it is a matter of some importance that the limitation period of three years in Tasmania is a relatively short period, and that although the policy apparent in this aspect of the Act is that it is in the public interest that the great bulk of claims of this sort should be commenced within the three year period, nevertheless it is also recognised that there will be cases where it is just to extend time to make a claim for up to three years beyond the expiry of that time. I also think it is a matter worth some weight that there was in this case a genuine ignorance of the existence of the three year limitation period. In fact this application was made only about a month before the expiration of the six years, but it would no doubt have been made many months earlier had the respondent's letter to his superior in the Police Department not taken such a long time to elicit a reply.

1. In all the circumstances, I agree with the Master in reaching the conclusion that it would be just and reasonable to extend time as he did. Accordingly, this appeal will be dismissed.