Guest v West Tamar Council - [2013] TASSC 1

[2013] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: Guest v West Tamar Council [2013] TASSC 1

PARTIES:  GUEST, Matthew Peter
  v
  WEST TAMAR COUNCIL

THOMPSON & BRETT PTY LTD (ACN 009 584 445)
TRANSPORT COMMISSION, THE

FILE NO: 733/2011
DELIVERED ON: 31 January 2013

DELIVERED AT: Hobart

HEARING DATE: 21, 22 and 23 November 2012 and written submissions received 14 and 21 December 2012 and 21 January 2013.

JUDGMENT OF: Holt AsJ

CATCHWORDS:

Limitation of Actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Principles upon which discretion exercised – Writ filed out of time – Date of discoverability.
Limitation Act 1974 (Tas), s38A.
Aust Dig Limitation of Actions [1085]

REPRESENTATION:

Counsel:
             Plaintiff:  M F J Smith
             Defendant:  S B McElwaine
             First Third Party:  No appearance
             Second Third Party:  No appearance
Solicitors:
             Plaintiff:  C N Dockray Solicitors
             Defendant:  Shaun McElwaine + Associates
             First Third Party:  Murdoch Clarke
             Second Third Party:  Director of Public Prosecutions

Judgment Number: [2013] TASSC 1
Number of paragraphs: 103

Serial No 1/2013
File No 733/2011

MATTHEW PETER GUEST v WEST TAMAR COUNCIL and THOMPSON & BRETT PTY LTD (ACN 009 584 445) and THE TRANSPORT COMMISSION

REASONS FOR JUDGMENT HOLT AsJ

31 January 2013

The application

On 19 August 2011 the plaintiff issued his writ against a Council established under the Local Government Act 1993 claiming damages for personal injuries suffered in a car accident on 8 June 1994 on Rowsphorn Road at Riverside, a public road near Launceston within the municipal area of the Council. The plaintiff was the driver of the vehicle. His two young passengers were killed in the accident. By his statement of claim the plaintiff alleges that the accident was caused by the negligence of the Council. Paragraph 6 is as follows:

"The Defendant, its servants or agents were negligent in that it, he or they:
(a)Failed to warn the plaintiff by way of signage of the steep incline [sic] beyond the crest on Rowsphorn Road at Riverside;
(b)Failed to warn the Plaintiff of the presence of the median strip dividing the two way carriageway over the top of the crest;
(c)Failed to install speed bumps or other measures, including a speed restriction zone, to limit the speed of vehicles, including the Plaintiff's vehicle, as it approached the crest;
(d)Failed to restrict the speed of vehicles to 25 mph [sic] as they approached the crest;
(e)Failed to provide road design sufficient to ensure the safety of persons and vehicles approaching and trafficking the crest of the hill on Rowsphorn Road at Riverside;"

The writ bringing the action, having issued more than 17 years after the accident, was out of time. The Limitation Act 1974, s5(1) relevantly provides that an action for damages for negligence in respect of personal injury occurring before 1 January 2005 shall not be brought "after the expiration of a period of three years from the date on which the cause of action accrued".

The meaning of the words…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] TASSC 1
Decision Date: 31 January 2013

CaseChat Overview and Summary

In the matter of Guest v West Tamar Council, the appellant, Guest, sought to have the limitation period extended for bringing a personal injury claim against the respondent, West Tamar Council. The dispute centred around whether the time frame within which Guest could initiate legal proceedings should be extended, given the late discovery of the injury and its causes. The case was heard in the Supreme Court of Tasmania. Guest argued that the time limit for bringing the claim should be extended due to the delayed discovery of the injury, while the Council contended that the statutory limitation period had expired and should not be extended.

The court was tasked with determining the principles upon which the discretion to extend limitation periods in personal injury matters should be exercised. Specifically, the court had to assess whether the discovery rule, which allows for the limitation period to be extended if the plaintiff did not know, and could not with reasonable diligence have known, of the injury and its causes, was applicable in this case. The court also had to consider the date of discoverability and whether the appellant's delay in bringing the claim was reasonable. Furthermore, the court needed to evaluate whether the appellant's claim was statute-barred and whether the application for an extension of time should be dismissed.

The court found that the principles governing the extension of limitation periods in personal injury cases are guided by the date of discoverability and the reasonable diligence of the plaintiff in discovering the injury and its causes. In this instance, the court determined that the appellant's claim was statute-barred as the limitation period had expired. The court held that Guest's delay in bringing the claim was unreasonable, and therefore, the application for an extension of time was dismissed. The court emphasised that the extension of limitation periods is not automatic and requires careful consideration of the circumstances of each case.

The Supreme Court of Tasmania ruled that the appellant's claim was statute-barred, and the application for an extension of time was dismissed. The court's decision underscored the importance of timely initiation of legal proceedings in personal injury cases and highlighted the stringent criteria that must be met to extend the limitation period. The court's judgment provided clarity on the application of the discovery rule and the importance of reasonable diligence in discovering injuries and their causes.

Orders