Guest v West Tamar Council
[2013] TASSC 1
•31 January 2013
[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 "cause of action" in the context of limitation legislation was explained by Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. His Honour said at 245:
"The concept of a 'cause of action' would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage: cf Cooke v Gill (1873) LR 8 CP 107, at p116 ; Read v Brown (1888) 22 QBD 128, at p131; Trower and Sons Ltd v Ripstein (1944) AC 254, at p263; Board of Trade v Cayzer, Irvine & Co. Ltd (1927) AC 610, at p617; Shtitz v CNR (1927) 1 DLR 951, at p953; Williams v Milotin (1957) 97 CLR 465, at p474. Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. Indeed, a person may be well appraised of all of the facts which need to be proved to establish a cause of action but for want of taking legal advice may not know that those facts give rise to a right to relief."
The plaintiff suffered physical injuries in the accident. In particular he suffered a broken collar bone, lacerations, bruising, swelling to the right hand, abdominal tenderness and possible concussion and damage to vertebrae. His injuries resulted in him being hospitalised for 2½ days and being unfit for work for about two months. Accordingly, the plaintiff had a cause of action against the Council which accrued on the day of the accident, namely, 8 June 1994. There is evidence that he subsequently suffered psychiatric injury being post-traumatic stress disorder, not as a result of his physical injuries, but as a result of the fact that he was in the vehicle at the time when his two young friends were killed. The plaintiff presented evidence from a psychiatrist, Dr Ratcliff, that he had suffered from post-traumatic stress disorder from 1994, shortly after the accident. It has been held in Tasmania that the onset of post-traumatic stress disorder, not arising from physical injury, does not give rise to a separate cause of action. See Tusyn v State of Tasmania (No 2) (2008) 18 Tas R 313 per Blow J at [7] – [25]. In any event, the plaintiff's case is that his post-traumatic stress disorder occurred in 1994 being at about the same time or shortly after his physical injury was suffered.
The Limitation Act, s38A(1), provides that a person who has a cause of action which accrued before 1 January 2005 may apply for an extension of the three year period prescribed in s5(1) to three years commencing on "the date of discoverability".
The Act, s2(1), relevantly provides:
"date of discoverability, in the case of an action for damages for personal injuries, means the date when the plaintiff knew or ought to have known that personal injury or death -
(a) had occurred; and
(b) was attributable to the conduct of the defendant; and
(c) in the case of personal injury, was sufficiently significant to warrant bringing proceedings;".
The plaintiff has applied for an extension of time under s38A(1). Because time may only be extended for three years from the date of discoverability, the plaintiff needs to show that the date of discoverability was not earlier than three years prior to the date of the issue of the writ. That is to say not earlier than 19 August 2008. If the plaintiff can show that the date of discoverability was no earlier than 19 August 2008, he must then show that he ought have a favourable exercise of the discretion to extend time. The factors which a judge must have regard to in considering whether or not to favourably exercise the discretion are specified in s38A(2). They are as follows:
(a) the justice of the case; and
(b) ● whether the passage of time has prejudiced a fair trial of the action;
● the nature and extent of the plaintiff's loss; and
●the nature of the defendant's conduct.
The factors which may be considered in assessing the justice of the case are "every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period", per McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554.
Factors usually taken into account in assessing the justice of the case are:
●Whether the plaintiff has demonstrated in an appropriately preliminary way the apparent viability of his action. If the plaintiff fails to demonstrate that the claim is viable, he or she could not expect to persuade the court that there would be any injustice if the statutory time bar is left in place. Williams v The Minister Aboriginal Land Rights Act1983 (1994) 35 NSWLR 497 per Kirby J at 508.
●The length of the delay and the plaintiff's explanation for it. Although in Hall v Nominal Defendant (1966) 117 CLR 423 Barwick CJ said at 435: "Some acceptable explanation for the failure of the [plaintiff] to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension", the other judges in that case did not adopt the view of the Chief Justice that failure to satisfactorily explain delay is fatal to an extension of time application. It has been held by the Full Court in Hill v Iluka [2002] TASSC 113 at par[23] that the explanation for delay is merely a matter to be taken into account and weighed with the other relevant matters.
●Whether the delay has caused or will cause prejudice to the defendant. The defendant will suffer prejudice if "delay has made the chances of a fair trial unlikely". Taylor, per Toohey and Gummow JJ at 550. Even if a fair trial can still be undertaken there may be other prejudice to a defendant in the form of oppression. For example, the defendant may have acted to his or her detriment on the assumption that a claim would not be brought or, by reason of the delay, may have lost the benefit of insurance cover. There is an evidentiary onus on the defendant to raise matters of prejudice or oppression. Taylor per Toohey and Gummow JJ at 547 and Kirby J at 566 – 567.
The starting point, in the consideration of the matters to be dealt with on the plaintiff's extension of time application, is to set out the plaintiff's case as to the cause of the accident and the circumstances in which he failed to bring his action for more than 17 years after the event.
The plaintiff's case as to the cause of the accident
Shortly before 11 pm on 8 June 1994 the plaintiff, aged 18, was driving his 1975 V8 Holden Torana in a general easterly direction along Rowsphorn Road at Riverside in the Municipality of West Tamar. It was a clear still night. He had held a provisional driver's licence for a little under 15 months. In the car were his two friends, Samuel Greer aged 18 and Justin Holmes-Berkeley aged 19. The plaintiff had turned from Ecclestone Road into Rowsphorn Road. The road was sealed. About 1.5 kms along Rowsphorn Road, the roadway falls away steeply and the eastbound carriageway narrows from 4.1 metres wide to 3.6 metres wide. A few metres below the crest there is a narrow concrete median strip 200 mm high, 600 mm wide and about 40 metres long. At the eastern end of the median strip was a keep left sign. The speed limit was 70 kms per hour. There was no sign near to the crest for eastbound traffic further regulating speed or warning of the existence of the steep decline.
The plaintiff gave evidence that he had never travelled the road before and that he had no recollection of events between shortly after his car reaching the crest and subsequent to the accident being attended by emergency services personnel. He said in his evidence-in-chief that he was travelling at approximately 70 kms per hour, but in cross-examination he said of his speed at the crest: "I have always said that it would have been about the 60 kms per hour."
Accident Investigation Officer, former police Sgt Michael Davis, gave evidence that he attended the accident scene at about 11.40 pm, which was shortly after the plaintiff had been taken by ambulance to the Launceston General Hospital. The plaintiff's car was on its roof in a drain on the southern side of the road about 100 metres east of the crest. The bodies of the plaintiff's two deceased passengers were still in the car. After conducting a detailed inspection of the accident scene Sgt Davis formed the opinion that the plaintiff's car had hit the median strip just below the start of the decline and then gradually rotated to the left, straddling the median strip and sliding down it knocking over the keep left sign at the end. The car continued on hitting an embankment on the northern side of the road then hit a deep table drain causing it to flip onto its roof before it slid on its roof further down the road, eventually coming to rest upside down on the southern side. Sgt Davis estimated the speed of the plaintiff's vehicle as it came over the crest to be 70 kms per hour plus or minus 10 per cent.
Sgt Davis said in an affidavit sworn in July 1994 for the purposes of the inquest:
"I have conducted speed tests over the crest on five (5) occasions. The first speed was of 80 kilometres per hour, and the remainder at 70 km/h, and under.
The sensation at 80 kilometres was frightening, and this was knowing the road fall, and that the carriageway appeared to travel to the left.
The vehicle did not become 'airborne', losing traction, but appeared extremely unstable, although I was in full control.
The vehicle travel was to the right, towards the median strip, and I had to steer it left to safely negotiate. The island gave the impression it went to the right.
…. the road ahead at the crest appeared to go to the right. Once closer to the crest, and picking up the view of the median strip, the road went to the left and a change had to be made to the vehicle's course."
Sgt Davis, in the same affidavit, referred to the median strip below the crest as the 3rd median strip. He referred to a median strip at the top of the crest as the 2nd median strip, and a median strip just to the west of the crest as the 1st median strip. He said:
"I went to the crest at night, and did lighting tests, on high beam. At the start of the 1st median strip I could only see the 2nd island ahead.
At the start of the second median strip, the lights on high beam shone directly ahead, and I could only just pick up the start and top of the cement end of the 3rd large median strip. The lights shone directly over the crest into blackness, and at the top of the hydro pole, further down the hill. At the end of the 2nd, the road fell away, and gave the impression the median strip went out to the right, and the vehicle should be steered that way.
I also had a feeling of concentrating on the city area, in the distance, at this point, instead of what may lay ahead.
At the point where the vehicle started to go off the crest, at the start of the 3rd median strip, the lights were still above the median strip, and did not fully pick it up until the vehicle had have [sic] levelled out, off the crest, and into the fall."
Finally, as to the circumstances of the accident, there is an affidavit prepared for the purposes of the inquest sworn by a person living nearby. In it the deponent said that a sign at the crest showing "a wedge of black with a car facing down, was missing in March 1994". This was about three months before the accident. Sgt Davis in his affidavit of July 1994 said that it had been established that the sign had been knocked down and removed about 12 months prior to the accident and had not been replaced.
It appears to be arguable that the accident was caused by or contributed to by one or more of the following factors. The lack of a traffic sign limiting speed at the crest to a speed below the general 70 kms per hour limit; the lack of a sign at or near the crest warning east bound traffic of the steep decline; the lack of traffic calming devices, and the design of the road.
It is reasonable to presume that speed limits are set so that the maximum is generally a safe speed for an inexperienced driver, in an old car, unfamiliar with the road, driving at night in conditions which are not adverse by reason, for example, of rain, frost or fog.
Whether or not the Council can be held responsible for the lack of signage, the lack of speed calming devices and the design of the road, raises separate questions which shall be dealt with later in these reasons.
The circumstances in which the plaintiff failed to bring his action for more than 17 years after the event
Initially the plaintiff was not significantly out-of-pocket because of his injury. About two weeks after his discharge from hospital, with the help of his mother, he lodged a claim for benefits with the Motor Accidents Insurance Board. The Board paid the plaintiff's medical and like expenses. However, despite receiving medical certificates stating that the plaintiff was incapacitated for work for the period 9 June 1994 to 14 August 1994, no disability allowance was paid. The plaintiff was advised by the Board in a letter dated 18 July 1994 that he should claim a sickness benefit from the Department of Social Security. The plaintiff's lost wages would have been relatively small as he was only earning $7.39 per hour as a car detailer.
After his discharge from hospital a counsellor was sent to the house where the plaintiff lived with his parents, but the plaintiff refused to speak to the counsellor.
When the plaintiff became physically able to resume employment in mid-August 1994 he did not return to work and withdrew from his apprenticeship course where he had been studying to obtain qualifications to become a boilermaker. He only had about two weeks of study left to complete that course.
The inquest was concluded in March 1995. The plaintiff's father had engaged a lawyer to represent the plaintiff at the inquest. The plaintiff sat with his mother during the inquest and also gave evidence. The plaintiff, however, did not ask the lawyer for advice as to whether he might pursue a damages claim.
The plaintiff became a heavy drinker often staying in bars until 3am. He said that he constantly thought about his two friends who had died in the accident and what they would be doing if they were still alive. He said, also, that he often thought that had it not been for the accident he would have fulfilled his childhood dreams. Those dreams being to have gained a trade qualification, married, secured a house, had a family and purchased a boat.
Since shortly after the accident the plaintiff has been of the opinion that the accident would not have happened had there been signage, better lighting and the design of the road had not included such a sudden and steep descent. His evidence given under cross-examination on this matter was as follows:
"Right. So you have thought since within about six months of the accident, and if I'm wrong you tell me if I'm wrong, you have thought within about six months of the accident to the present time that signage or different signage would have made a real difference on the night?.....Yes and lighting yes.
And lighting as well. Did you think that lighting would have made a difference or did someone else tell you that?.....That's just what I've thought. I don't know if you've been there but I remember as I like I had not warning because the road it literally just went like that my lights were in the air. But as soon as the front tyres rolled over the crest then the sign was right there.
So have you ever thought that one of the reasons for this accident is road too steep?.....Yes.
Yeah, you thought that since within six months of the accident?.....That yes and you're going on the other side of the hill I've really only thought about what was leading up to me to get to the peak of the hill, the drop.
If it wasn't steep I think you're telling me I wouldn't have ended up in the table drain and therefore I wouldn't have ended up upside down?.....If that was a flat road I would have seen the keep left sign, that was over the brow of the hill.
And for about the last 17 or 17 and a half years you have thought that different or more signage or any signage would have made a difference correct?.....Yes.
And you've also thought that the person responsible for that signage as something to answer for haven't you?.....Only recently.
Well how recent?.....After realising I may be able to put a claim in.
HIS HONOUR: Sorry Mr McElwaine's not asking you whether or not you thought the local council was responsible just whether whoever it is that was supposed to put signs about was responsible, whether you'd thought that.
WITNESS: Oh, no.
HIS HONOUR: Over the last 17 and a half years I think.
WITNESS: No I don't think I knew who was responsible, there was–
MR MCELWAINE: I not asking you –
HIS HONOUR: He's not asking you who was responsible he's asking whether you thought whoever it was that should have been concerned with road gradients, lighting and signs was responsible. I think that's what he's asking you.
WITNESS: Well after the accident signs and speed humps did go so what when, in my mind, thought that whoever put them in – the council or road works was responsible.
MR MCELWAINE: (Resuming) And do you remember when signage and different road treatment was put in?.....No.
It was within a year of the accident I suggest to you?.....I'd agree with that.
Yeah so when that happened you thought well hang on if this had been done before the accident I probably wouldn't have had the accident correct?.....Yes.
And did you therefore think that whoever was responsible for that, the road works, the signage and so forth, probably made a mistake?.....No.
You think that they should have done that work before you had the accident?.....I wish they had of yeah.
Yeah. And if we put all those things together you're telling us that, notwithstanding all that, you never sought to ask a lawyer until 2008?.....Yes."
Despite these beliefs and opportunities which the plaintiff had to consult a lawyer, he did not do so until 2008. In 2000 he engaged a lawyer to represent him in respect of charges brought by CentreLink, but did not ask the lawyer about the possibility of a damages claim. In 2003 he engaged a lawyer for the purpose of securing a restraint order but, again, did not take the opportunity to ask the lawyer about potential remedies in relation to the car accident.
In August 2008 the plaintiff, at the request of his partner, who complained about the plaintiff's irritability, went to see his general practitioner to discuss the accident. He was referred to a psychiatrist, Dr De Jong, with whom he had a number of consultations, the first of which being in September 2008. At around the same time he asked his mother whether he should see a lawyer about the accident. He said that he had seen television advertisements by lawyers inviting people who had been in car accidents to see them for the purpose of pursuing possible compensation claims. The result was that the plaintiff's brother arranged for the plaintiff to contact his current lawyer. The plaintiff first spoke with the lawyer in late 2008. The lawyer caused the plaintiff's writ to issue in August 2011.
The plaintiff's mental health problems and his excessive consumption of alcohol contributed to his failure to seek professional assistance earlier. There was evidence from three psychiatrists, Dr De Jong, whom the plaintiff attended for treatment between 2008 and 2010, Dr Ratcliff, who was commissioned to prepare a report by the plaintiff's solicitor, and Dr Spear, who prepared a report at the request of the defendant's solicitor.
Dr De Jong said in his report that the plaintiff's description of his symptoms was consistent with the plaintiff having suffered post-traumatic stress disorder since shortly after the accident, and that post-traumatic stress disorder can lead to the sufferer being unable to seek professional help. His report includes the following:
"Post Traumatic Stress Disorder is by definition a severe and debilitating mental health disorder, comprised of a complex set of symptoms that can render emotional, social and occupational functioning very difficult. Post Traumatic Stress Disorder is formally diagnosed when its core symptoms persist beyond one month [See attached Diagnostic Criteria from DSM-IV-TR].
The motor vehicle accident with the traumatic outcome of loss of life afforded a tremendous emotional shock to Mr Guest. I have no doubt that this accident profoundly and detrimentally affected his subsequent life course and experiences. In a true sense, the accident has never left Mr Guest. Indeed, I also think he has had little respite from persistent thoughts about the accident over many years experiencing frequent associated nightmares and poor quality of sleep.
There definitely is a discernible phase when people who have had such a traumatic experience as Mr Guest, experience typical symptoms of a Post Traumatic Stress Disorder but do not know or understand, what is going on within them.
Avoidance and detachment as exhibited by Mr Guest are two of the defining symptoms of Post Traumatic Stress Disorder. I understand that Mr Guest after the funeral of his dead friends could not finish his apprenticeship anymore and spent years drinking in excess.
Significantly, it can be that an individual affected by Post Traumatic Stress Disorder is unable to seek or accept the very professional help they require. An individual, as an intrinsic aspect of his Post Traumatic Stress Disorder, can be rendered emotionally paralysed and rejecting of required professional help.
I understand that Mr Guest's family made efforts to obtain some form of professional counselling in the aftermath of the accident. However, Mr Guest, then still only eighteen years of age, was unable to appreciate or successfully communicate his feelings, and co-operate with those trying to assist him.
Especially adolescents and young adults with still evolving mature cognitive and emotional processing skills are especially vulnerable to the effects of severe trauma, such as the motor vehicle accident in which he was the only survivor. Mr Guest's relative youth likely compounded his isolation and emotional paralysis. Young people of that age are typically reluctant to acknowledge that they need help as they may view their symptoms as weakness and they may well be resolved not to show vulnerability and deal with their problems on their own. Alcohol and substance abuse are common maladaptive ways to deal with distressing symptoms.
Moreover, perceived social isolation or community resentment likely compounded reactions of avoidance and detachment in a young individual, such as Mr Guest at the time, suffering Post Traumatic stress Disorder.
Mr Guest in moving to the mainland away from immediate family support without having received much of the necessary professional assistance essentially transported his closed and still unattended Post Traumatic Stress Disorder to a different locality. The history of his living situation on the mainland I have not in detail explored. However, my understanding is that he did not receive professional treatment and the effect of the accident on him remained frozen and his feelings of survivor guilt, his purposeless lifestyle remain unaddressed.
As is the case of a significant number of individuals affected profoundly by Post Traumatic Stress Disorder but unaware of its nature, I am not surprised that Mr Guest sought his relief in the excessive consumption of alcohol, with evident detriment to his health. Normal subsequent life experiences with relationships and family can assume definitive significance in an individual affected with entrenched and untreated Post Traumatic Stress Disorder, associated with the loss of life. This can especially be the case in sad circumstances of family bereavement; or, on the other hand, in the joyous birth of new life, with all its potential and hope but also with the challenge of new responsibilities associated with becoming a parent(s).
Such otherwise normal life events can loosen the formal restraint that an individual has long sustained on the circumstances surrounding the Post Traumatic Stress Disorder symptoms. This can in turn enable receptivity to allow the affected individual to seek professional help.
I consider that this is likely the case with Mr Guest in 2008, following the death of his grandmother to whom he was very close and the birth of his son some months later."
Dr Ratcliff's report included a retrospective diagnosis of post-traumatic stress disorder since the accident in 1994. In addition he referred to the plaintiff's excessive consumption of alcohol. He said: "recurrent intoxication fosters an extreme form of procrastination so that affairs of importance are simply not dealt with" and although "he would have been capable of giving instruction, but he would not have been likely to have initiated contact. He would have avoided it out of a wish to avoid memories, from inappropriate guilt, and from diminished sense of personal entitlement".
Dr Spear diagnosed the plaintiff as currently suffering from post-traumatic stress disorder in partial remission. He said, however:
"I believe that Mr Guest may have initially coped with probable post traumatic stress disorder through denial and avoidant behaviour as well as using alcohol. Nevertheless, I believe he would have been able to seek professional assistance by way of counselling, psychiatric assistance or legal advice had he chosen to do so.
…
… my view is that Mr Guest would still have been capable of seeking medical help or legal advice. Therefore I do not consider that Mr Guest has been effectively precluded from making decisions about the commencement of legal decisions [sic].
When I asked Mr Guest about this he explained that he was not aware that he could have made a claim, however, he stated he would not have done so anyway because he blamed himself for the death of his friends. However, he changed his mind regarding this in 2008 with the birth of his son. He believes in some way this claim would allow him to achieve some kind of closure where he can get an answer and he asks himself, 'Can I do something?'
…
My view is that Mr Guest did not have impairment of his mental capacity following the motor vehicle accident. He may have avoided seeking medical or legal assistance. This avoidance was probably part of Post Traumatic Stress Disorder. At the same time, I believe Mr Guest was still able to instruct a lawyer or to obtain medical help if he had chosen to do so.
…
I will agree with Dr Ratcliff and Dr De Jong that avoidance is a symptom of Post Traumatic Stress Disorder. This may well explain why he chose not to seek treatment or legal redress prior to 2008. The death of his grandmother and the birth of his son in 2008 changed his view regarding seeking medical treatment. He also appears to have changed his attitude regarding seeking legal redress."
The definition of "date of discoverability" – Is the knowledge referred to (actual or constructive) confined to knowledge of facts, or does it include knowledge sufficient to allow an informed decision to be made regarding the commencement of legal action?
Mr McElwaine, counsel for the defendant, submitted that the definition of "date of discoverability" by referring to the "conduct" of the defendant, rather than the "fault" of the defendant, makes it apparent that the date of discoverability arises with the acquisition (actual or constructive) of knowledge of the existence of the facts which constitute the cause of action, even where there is no appreciation of the legal implications.
In New South Wales the Limitation Act 1969, s50D(1)(c), is in relevantly identical terms to par(c) of the Tasmanian definition of date of discoverability. It has been held there by the Court of Appeal that the accrual of the date of discoverability is dependent upon the acquisition of relevant legal and medical information sufficient to allow an informed judgment as to the commencement of proceedings to be made. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 and State of New South Wales v Gillett [2012] NSWCA 83. In Gillett, Beazley JA, with the agreement of the other four appeal judges, said at [131]:
"In Baker-MorrisonBasten JA regarded satisfaction of s50D(1)(c) as dependent upon 'the exercise of both legal and medical expertise' ([41]) and that 'the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made' ([44]). For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s50D(1)(c) is satisfied."
Although the Tasmanian definition refers to "conduct" rather than "fault" in par(b), in par(c) it specifies that the knowledge is to include knowledge that the injury was "sufficiently significant to warrant bringing proceedings". As can be seen from the passage from Gillett which I have quoted, the knowledge required, for the date of discoverability to arise, includes knowledge that the injury is of a kind which the law regards as compensable and for which the defendant is liable. Accordingly, I reject the submission that knowledge of the facts which constitute the cause of action is sufficient, even where there is no knowledge of the legal implications.
The definition of "date of discoverability" - To what extent, if any, may particular characteristics of the plaintiff be taken into account in the consideration of constructive knowledge?
The definition of "date of discoverability" in s2 provides the basis for the ascertainment of the time when a limitation period is set running. A purely objective test for constructive knowledge, or alternatively, a test which clearly defines the extent to which subjective matters may also be taken into account, affords a greater degree of certainty in the ascertainment of the date of discoverability than does a partly subjective test where the particular characteristics of a plaintiff which may be taken into account are ill-defined and potentially broad ranging. A test by which outcomes are predictable affords to potential plaintiffs, with time issues, and their advisors, a solid foundation for considering and then determining whether time consuming and expensive litigation should be commenced.
In Kaye v Hoffman [2007] TASSC 31, I said at par[35]:
"Accordingly, on the question of constructive knowledge I consider the proper approach to be as follows:
(a) Firstly, consideration needs to be given to when objectively it would be reasonable to expect medical or other advice to have been sought relating to the date of discoverability feature under consideration.
(b) Secondly, whether, if at that time, advice had been sought it would have resulted in the plaintiff acquiring the relevant knowledge.
(c) Thirdly, if a plaintiff has characteristics which affect his or her capacity to acquire relevant knowledge the 'date of discoverability' will be the date upon which it might reasonably have been expected that the relevant knowledge would have been acquired having regard to these characteristics.
(d) Fourthly, characteristics of a plaintiff which only go to his or her inclination to acquire relevant knowledge will not be taken into account."
In New South Wales the relevant limitation legislation distinguishes between the test for ascertaining the date of discoverability and a jurisdictional test which must be satisfied before a discretion to extend time can arise. The general limitation period for personal injuries actions is three years from the date of discoverability. The discretion to extend time exists for the remedial or beneficial purpose of affording an opportunity to bring an action out of time where the plaintiff is unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. The constructive knowledge element for ascertaining the date of discoverability is informed solely by objective factors. The Limitation Act 1969 (NSW), s50D(1) and (2), is as follows:
"50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is 'discoverable' by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person 'ought to know' of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact."
It is clear from New South Wales authorities that the test is purely objective. In Baker-Morrison v State of New South Wales (supra), the judgment of Basten JA includes the following:
"The objective test – 'ought to know'
57 The next question was whether the plaintiff's mother ought to have known each of the facts identified in sub-s 50D(1). The answer to that question must depend upon the effect of sub-s (2). It purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken."
The harshness of the purely objective test in New South Wales is ameliorated by the extension of time provisions. Section 60G provides that a plaintiff may obtain an extension of time. However, in order to attract the discretion, the prerequisites set out in s60I(1) must be fulfilled. The purpose of the subdivision in which these provisions appear is set out in s60F. Sections 60F and s60I(1) are as follows:
"60F The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date.
…
60I(1)A court may not make an order under section 60G … unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant's act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)-(iii)."
The practical consequences which might result, depending upon whether or not only those characteristics of the plaintiff which affect capacity to acquire the relevant knowledge are taken into account, are illustrated by the decision of the Court of Appeal in Commonwealth of Australia v Smith [2005] NSWCA 478. The facts of that case are briefly as follows. Mr Smith was a crew member on HMAS Melbourne on the night of 10 February 1964 when that ship collided with HMAS Voyager. The Melbourne cut the Voyager in two and Mr Smith saw the two halves of the Voyager sink. There was loss of life and serious injury which Mr Smith witnessed firsthand. Over time Mr Smith developed post-traumatic stress disorder because of the incident. He would not talk about what happened, even with his wife. He became depressed, moody and aggressive, and began drinking to excess. This caused a number of significant problems in his life. Mr Smith first sought legal advice about the matter in 1999, more than 35 years after the event. It was not until after he saw a lawyer that he was urged to see a psychologist. It was only after seeing a psychologist and reading her report of May 2001 that Mr Smith connected many of his symptoms with the incident. The judgment of Santow JA at pars[95] – [97] records the following:
"95 The primary judge then quoted from Mr Smith's affidavit of 7 February 2002, in which he stated that even when he was advised to consult a psychiatrist in December 2000:
'at first I could not accept that I did have [a psychiatric] disorder, and was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before' [Judgment [23]].
96 Indeed the full passage from that affidavit is important enough to quote in full:
'19 At times I did recognise that I was drinking to excess but felt so depressed that drinking was a relief. I was moody, volatile and had lost my ambition and motivation and had become a loner, with symptoms of claustrophobia, reflux, sleep disturbance and headaches. However, I did not connect these with the collision nor did I have any idea or notion that they were attributable to a psychiatric disorder resulting from my experience in the collision. It was only in approximately mid 1999 that I came into contact with my solicitor and talked to him about my symptoms. He recommended I should seek assessment by an expert psychiatrist or psychologist. However, at first I could not accept that I did have such a disorder, and was reluctant to expose myself and dredge up the memories that I had been instructed to block out over thirty-five years before. Eventually in December 2000 I did attend an examination arranged by my solicitor with a psychologist on the Gold Coast, Dr Laurel Morris. In the course of that assessment I had to answer a huge number of questions about my life and condition, and I had some discussion with her at the consultation. I have recently read her report dated the 30th May 2001, and now understand better how the various symptoms from which I have suffered over the many years following the collision are apparently linked to my experience on that night, and my inability to express it or discuss it ever since.'
97 That passage is supportive of Mr Smith's asserted state of mind and feelings operative until after his examination by his psychologist Dr Laurel Morris upon reading her report of 30 May 2001. It demonstrates consistently with the primary judge's findings:
(a) Mr Smith's inability to connect his mental symptoms in particular either to the collision or to a psychiatric condition resulting therefrom,
(b) Mr Smith's inability to express the experience of that night or the collision or to discuss it ever since,
(c) Mr Smith's inability, until he absorbed what the psychologist told him, to accept that he had a psychiatric disorder,
(d) Mr Smith's reluctance to 'expose myself and dredge up the memories that I had been instructed to block out over 35 years before', and
(e) His finally seeing a psychologist at the urging of his solicitor."
Santow JA applied a test, for the purpose of considering what Mr Smith ought to have known and when, which was informed by what a person with the "actual qualities" of the plaintiff should have done. He said at par[103]:
"The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man; Telstra Corporation v Rea [2002] NSWCA 49. That case stands as authority for the proposition that what a person 'ought' to know or be aware of for the purposes of s60I(1)(b) must necessarily take account of the circumstances of the particular applicant. The question is what a person with the actual qualities of the particular plaintiff should have done in the circumstances."
Applying this test Santow JA found no error in the approach and conclusions of the primary judge who found that the jurisdictional threshold had been satisfied, and extended the time within which Mr Smith's action could be commenced.
Basten JA considered the approach of Baroness Hale of Richmond in Adams v Bracknell Forest Borough Council [2005] 1 AC 76 to be the correct approach. Baroness Hale was considering a definition of discoverability to be applied for ascertaining when a limitation period commenced to run. Basten JA said at pars[186] and [187]:
"In Adams, Baroness Hale of Richmond cited a conclusion reached by the Law Commission (UK) in its consultation paper 'Limitations of Action' (LCCP 151, 1998) at par 12.54:
'As it is fairer to plaintiffs and would not create significant extra uncertainty, we also consider that the test for constructive knowledge should contain a large subjective element: what ought the plaintiff, in his circumstances and with his abilities, to have known had he acted reasonably? The question should not be what a reasonable person would have discovered, but what the plaintiff himself would have discovered if he had acted reasonably. The personal characteristics of the plaintiff, such as his or her level of education and intelligence, and the plaintiff's resources, would therefore be relevant to the question whether the plaintiff acted reasonably ... A number of the employment-related personal injuries cases have involved plaintiffs in unskilled manual jobs having little education. ... Conversely, in cases where the plaintiff has some degree of expert knowledge which should have caused him to appreciate facts at an earlier stage than would have been appropriate for the average person, that knowledge should be taken into account to advance the date of discoverability.'
After considering differences of approach taken by English courts in relation to the subjective circumstances of applicants, Baroness Hale concluded at [88]:
'I wonder, therefore, how much difference there is in practice between the two approaches. We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection.'
In my view this approach sits comfortably with the language of s60I(1)(b). The circumstances and characteristics of an applicant may well explain why he or she did not ask a question or seek advice at a particular time. The term 'ought' requires more than explanation – it requires justification. That additional element requires a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire."
Applying this approach Basten JA would have upheld the appeal. His Honour said at par[199]:
"This evidence appears to identify a personal characteristic of the Applicant which explains, at least in part, why he may not have sought expert diagnosis until persuaded by his solicitor in mid-1999. However, the evidence does not demonstrate that this was an element of his mental impairment. Had it done so, that would have been a material consideration."
Handley JA said that having read the reasons for judgment of Santow and Basten JJA in draft that he agreed with Santow JA "substantially for the reasons he has given".
I have referred to my decision in Kaye v Hoffman where I concluded that the legislation considered by Baroness Hale of Richmond was more analogous to the legislation in Tasmania than is s60I of the New South Wales legislation. I came to this conclusion because the provision being considered by Baroness Hale went to the ascertainment of the date of the start of a limitation period rather than the jurisdiction to extend time, and the New South Wales provision operates solely in the context of applications to extend time. The Tasmanian definition of "date of discoverability" operates primarily in the context of the ascertainment of the date of commencement of the limitation period. On an application for an extension of time in New South Wales, the characteristics of a plaintiff, which might after being taken into account with the result that a finding is made that there is jurisdiction to extend time even where those characteristics are not an element of mental impairment, may also result in the discretion not being exercised in favour of the plaintiff. This is made clear by Clarke JA in his judgment in CRA Ltd v Martignago (1996) 39 NSWLR 13. His Honour said at 19:
"If the plaintiff establishes that he or she was unaware of the relevant fact and satisfies the condition in par (b) … he or she will be entitled to ask the court to exercise its discretion in favour of the making of an order. That does not mean that the fact that the plaintiff had the means of knowledge at his disposal, such as the master held was the situation in this case, would not be relevant. In my opinion it would be a highly relevant matter for consideration in the exercise of discretion."
On appeal from my decision, Tennent J determined that my approach was wrong in law. In Kaye v Hoffman (No 2) (2008) 17 Tas R 176 at par[25] her Honour said, with reference to s60I of the New South Wales legislation:
"I would conclude that the legislative scheme in Tasmania is more akin to that in New South Wales than to that in the United Kingdom."
Her Honour concluded that the subjective factors relevant in the consideration of the constructive knowledge element of the definition of "date of discoverability" may vary from case-to-case. She said at par[33]:
"I can find no good reason to ignore the principles adopted by the New South Wales courts in their approach to the interpretation of 'constructive knowledge' for the purpose of determining the 'date of discoverability' of an applicant. However what the New South Wales cases highlight is that many turn on their own particular facts and it is difficult to set out a precise 'one size fits all' test."
The findings of Tennent J on this point were not the subject of the appeal subsequently brought before the Full Court. See Kaye v Hoffman (2009) 19 Tas R 357 at par[18].
Neither counsel submitted that I should decline to follow the approach of Tennent J and, although I am no longer bound by decisions of single judges with appeals from my decisions now going to the Full Court, I will follow what Tennent J said. This means that when I come to consider what the plaintiff ought to have known and when for the purpose of ascertaining the date of discoverability I will take into account the qualities, characteristics and circumstances of the plaintiff which resulted in his failure to ascertain that he had a compensable claim for many years regardless of whether those qualities, characteristics and circumstances were capacity related or simply went to inclination or motivation.
Date of discoverability – Actual knowledge
It is clear from the plaintiff's evidence that in 1994 he knew that as a result of the accident he had suffered physical injury and mental distress and that he believed that the accident was due, at least in part, to the dangerous nature of the road and the lack of appropriate signage.
Although his physical injuries only resulted in a short period of hospitalisation and a recovery period of about two months, his mental distress had caused him to abandon his apprenticeship, give up work and commence a habit of heavy drinking. The result adversely affected his motivation and quality of life.
I find that from 1994 the plaintiff had knowledge, which if proved at trial against the person or persons responsible for the condition of the road and lack of signage, would give rise to the plaintiff having a right of relief.
However, as I have concluded earlier, knowledge of the facts which give rise to the cause of action is not always sufficient. Sometimes professional advice is needed before a plaintiff or prospective plaintiff can know whether legal proceedings are warranted. Without professional advice the plaintiff could not have known whether an action confined to his physical injuries was justifiable when the potential benefit was weighed against the complexity, risk and cost of litigation. Without professional advice the plaintiff could not have known who should be named as defendant or defendants in the action. Without medical and legal advice the plaintiff could not have known whether his mental distress amounted to psychiatric injury which was compensable and, if so, whether the amount of compensation which might be awarded was sufficient to justify litigation.
The uncontested evidence of the plaintiff is that he first obtained professional advice about his mental distress in 2008. He first consulted a lawyer about the possibility of a damages claim being brought in November 2008. This was within three years of the date of the issue of his writ.
It follows that the plaintiff did not have sufficient knowledge for a date of discoverability, based upon actual knowledge, to have arisen more than three years before the issue of the writ.
Date of discoverability – Constructive knowledge
Although there was much psychiatric evidence, Dr Smith, counsel for the plaintiff, said that the evidence of Dr Spear recorded in the transcript at pp208 and 209, went "to the heart of the matter". Dr Spear said:
"There is evidence avoidant behaviour may stop people seeking treatment for post-traumatic stress disorder, so it is possible that avoidant behaviour could lead to somebody not seeking assistance in a legal matter as well, but it doesn't necessarily mean that somebody would be prevented from doing so. I'll give you an analogy. Somebody who has agoraphobia may feel uncomfortable about leaving the house yet you know, if somebody has to go to the house to get some food in, for example, then they general will do so or they may feel uncomfortable. They'll take a person with them to go to the shop so they can go to the shops to get the food that they need to get. So, for example, if somebody was uncomfortable going to a lawyer they could go with a supportive person like a parent for example that might be able to support them through that process. So, I think avoidance can prevent – can make it harder to do something but it doesn't necessarily stop you from doing something. Alcohol use in itself – obviously when somebody's intoxicated they're probably not in a fit state to instruct a lawyer or to engage in other purposeful activities, however, other people – Mr Guest is claiming he was constantly intoxicated. The transcript suggests it was many period when he was working and performing effectively at work and at times in a position of responsibility. This would suggest that, at times, at least he would have been able to instruct a lawyer in regard to the alcohol use side of things. Does that help you with your question?
HIS HONOUR: I think it probably does. I'll tell you what I've written down and it's not exactly your answer but I'd like to know if I'm wrong, that the avoidance behaviour wouldn't prevent you seeing – prevent Mr Guest seeing a lawyer about this. What it would do is affect his motivation to see a lawyer; that he would be less inclined but not prevented.
WITNESS: I think that's exactly right. I think that's the crux of it. He would have been uncomfortable, he would have had less motivation to do the task due to avoidance–
HIS HONOUR: So it's diminished capacity, not incapacity might be another way of saying it.
WITNESS: It may be more appropriate, your Honour. I think that, that probably is correct, yes."
It is apparent from the evidence of Dr Spear that the plaintiff had the capacity to ascertain his legal rights even though his post-traumatic stress disorder affected his inclination to do so.
The position with the plaintiff, unlike for example the position of Mr Smith in Commonwealth of Australia v Smith (supra), who did not connect his mental health problems with the incident the subject of his eventual claim, was that the plaintiff had reason to see a lawyer as he attributed his mental distress, at least in part, to the acts or omissions of those persons having responsibility for the nature of the road and the placement of appropriate signage at the place where the accident occurred. The plaintiff said that he had thought from within about six months of the accident that the nature of the road and lack of signage was a reason for the accident.
The plaintiff lived in Tasmania for five or six years after the accident, before moving to the mainland. He was able to hold down employment for much of this period, despite his excessive drinking. He was capable of giving coherent instructions to a lawyer. This is illustrated by the fact that shortly after leaving Tasmania he gave detailed instructions to a lawyer regarding charges brought against him in connection with government benefits he had been receiving whilst in employment.
The plaintiff having attributed his mental distress to the death of his friends in the accident and having attributed the accident, in part, to the nature of the road and the lack of appropriate signage, it was objectively reasonable for him to obtain legal advice whilst he was still living in Tasmania.
There were almost three years between the plaintiff first seeking legal advice in November 2008 and issuing the writ in August 2011. Had legal advice been sought whilst the plaintiff was living in Tasmania during the 1990s, and had the matter thereafter been pursued with diligence, it is reasonable to expect that the advice justifying legal proceedings would have been received well within a year of it having been requested.
Although the plaintiff's avoidance behaviour and heavy drinking caused delay and are symptoms of a compensable mental injury, namely post-traumatic stress disorder, the plaintiff was capable of, and despite his lack of inclination to do so, ought to have sought legal advice within a few years of the accident notwithstanding these characteristics. He had a reasoned basis for not seeing a lawyer which is that he did not want to profit out of the death of his friends. He accepted this proposition when put to him by counsel. The transcript records:
"And the reason you didn't want to ask a lawyer is you didn't want to profit when you're friends had died, that's true isn't it?.....Yes and I was unaware that I was eligible."
I conclude that a person with the same qualities and characteristics and in the same circumstances as the plaintiff ought to have ascertained within about five years of the accident that his mental condition, which was significantly adversely affecting his progress in life, was attributable to the acts or omissions of the relevant road authority and the injury was sufficiently significant to warrant bringing proceedings.
The result of this finding is that the plaintiff has failed to establish that the date of discoverability was not earlier than three years prior to the issue of his writ and so he has failed to establish the jurisdictional basis needed for the Court to have a discretion to extend time.
How would the discretion to extend time have been exercised had it arisen?
As set out earlier in these reasons at pars[7] to [9], the matters to be considered in the exercise of the discretion are:
·whether the plaintiff has demonstrated in an appropriately preliminary way the apparent viability of his action;
·the length of the delay and the explanation for it;
·the prejudice, if any, which the delay has caused and/or will cause the defendant;
·the nature and extent of the plaintiff's loss; and
·the nature of the defendant's conduct.
Evidence and argument was presented on these matters and even though, in light of my finding that the Court lacks jurisdiction, it is unnecessary for me to deal with the discretion to dispose of the application, I will set out my reasoning and the findings which I would have made had there existed a discretion to extend time.
Is there an arguable case?
In brief, the plaintiff's case against the Council is that it failed to provide a safe road design and thereafter failed to erect appropriate warning signs, failed to erect an appropriate speed restriction sign and failed to install speed humps or other speed calming devices.
The section of road on which the accident occurred was constructed by a subdivider as part of a low density residential land subdivision. The construction occurred in the early 1990s. The subdivider had engaged an engineering company to design the road. The subdivision was at Riverside within the municipal boundary of the Municipality of Beaconsfield. The municipal council approved the proposal including the road design. The subdivision went ahead and the road was constructed by the subdivider. In 1992 the Council became responsible for the maintenance of the new road pursuant to the Local Government (Highways) Act 1982.
By reason of the Traffic Act 1925, s59, signage for the road could only be installed at the direction of the Transport Commission and the Council was obliged to erect signs as directed.
On 16 June 1992 the Council issued the following letter:
"The Traffic Engineer
55 Elizabeth Street
LAUNCESTON TAS 7250
Dear Sir,
ROAD SIGNS – STEPHENSDALE SUBDIVISION, RIVERSIDE
As part of the above mentioned subdivision, a road connecting Pomona Road and Ecclestone Road is nearing completion.
A section of the road immediately west of the existing Pomona Road is quite steep. Council is placing signs advising motorists of a steep incline/decline, as well as an advisory "CREST" sign at the top of the steep section.
Your advice is sought on these relevant matters.
(a)Council would like to have a sign advising motorists towing heavy loads not to use the steep section of road. There does not appear to be a standard sign available with suitable wording. It is possible to have one made. Would a sign stating "CARAVANS DETOUR" placed under the steep incline sign be acceptable?
(b)All of the existing subdivision is covered by a 70kph speed limit. In an attempt to reduce the speed of vehicles travelling down the hill, is it possible to have a 60kph sign placed at the top of the hill. This would also have the effect of advising motorists of the speed limit applicable as they approach the built up section of Riverside.
(c)As part of the construction works, a median strip is being placed over the crest of the hill. Your approval to place a "KEEP LEFT" sign at either end of the median is sought.
Please contact the undersigned if you have any queries.
Yours faithfully
David Gibbins
CLERK OF WORKS"
On 25 September 1992 a reply was sent in the following terms:
"The Council Clerk
Municipality of Beaconsfield
P O Box 59
BEACONSFIELD 7270Dear Sir
TRAFFIC MATTERS
ROWSPHORN ROAD, RIVERSIDE WEST
I refer to Council's letter of 16 June concerning the above matters.
The issues raised have been investigated and the following comments are submitted for Council's information:
1 Advisory Detour Signs
The provision of advisory detour signs is supported, however it is considered important that the signs inform motorists of the alternative routes via West Tamar Highway and Ecclestone Road.
The enclosed Drawing No LW/12/6 details the suggested wording and recommended locations for the signs. The supply and erection of the signs is Councils responsibility.
2 Speed Limit
To coincide with the transition from low density residential to high density residential land use, approval has been given for erection of a 60 km/h speed limit sign in Rowsphorn Road just west of Pomona Road.
I would appreciate you arranging for the signs to be erected when received at your Depot with post and fittings.
3 Keep Left Signs
The 'Crest', 'Steep Incline', 'Steep Decline' and 'Keep Left' signs erected by Council have now been approved by the Department.
It has been noted that the centre median installed over the crest in Rowsphorn Road is only 600mm wide. The minimum width of any traffic island is 1.0 metre, however as it has been installed in permanent materials the device has been approved in its present form.
Arrangements have been made for the D.O.C. to install standard approach pavement markings.
Yours faithfully
(A V Peters)
CHIEF TRAFFIC ENGINEER"
It is clear from this exchange of correspondence that the Council was aware of the dangerous nature of the road at the crest. The crest is a short distance to the west of Pomona Road, referred to in the letter of 25 September from the government department administering the Traffic Act. The evidence is that the "Crest" sign at the top of the crest had been knocked down and removed several months before the accident and not replaced by the Council. There is no evidence that the 60 kms per hour speed sign, proposed to be placed near the crest and directed under the Traffic Act, was installed prior to the accident. The median strips at 600 mm wide were narrower than the minimum width of 1 metre for such strips and so the speed reducing impact of wider strips by creating a narrower vehicular travel way was lost. The other sign being a detour recommendation sign was misleading in that it advised of a steep decline 1 km ahead, but the sign was placed 700 metres to the west of the crest and commencement of the steep decline.
By a proclamation dated 28 July 1992, which became effective on 2 April 1993, the name of the Municipal district of Beaconsfield was changed to the Municipality of West Tamar. The Local Government Act 1993 came into effect on 17 January 1994 and as a consequence the West Tamar Council was established as the new body corporate for the Municipality of West Tamar. Counsel for the defendant, the West Tamar Council, has advised that it is not disputed that "the defendant is the successor to and is responsible for the liabilities of the former Municipality of Beaconsfield". The West Tamar Council was in existence under the Local Government Act 1993 and had responsibility for the road from January 1994 being several months prior to the occurrence of the accident.
There is no common law rule which gives highway authorities an immunity from legal liability. The content of the duty of care owed by a highway authority to road users is set out in Brodie v Singleton Shire Council (2001) 206 CLR 512. There Gaudron, McHugh and Gummow JJ said at par[150]:
"The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
Here the highway authority did not design or construct the dangerous section of the road on which the accident occurred, but it knew of the danger and was subject to the specific duty imposed under the Traffic Act to erect and maintain the signs directed to be installed to warn of and manage the danger. As I have said the crest warning sign which was directed to be erected at the crest had not been replaced after it had been knocked down and removed months before the accident. There should have been a sign, as directed, limiting speed at the crest from the general 70 kms per hour limit to 60 kms per hour. There was no evidence of the existence of such a sign and an inference is clearly open that such a sign was not there at the time of the accident. The inference arises from the detailed evidence of the investigating police officer, Sgt Davis, who noted many matters of high detail about the road and signage. Neither in his evidence nor in his affidavit for the inquest was there any reference to a 60 kms per hour speed limit sign near to the crest.
A failure by a highway authority to erect signage can constitute a breach of its duty of care. In Brodie Gaudron, McHugh and Gummow JJ said at par[156]:
"It may also be that, although a road is in a dangerous condition, the authority will have discharged its duty of care by taking reasonable steps to minimise any danger or to prevent it arising. The authority may have provided adequate warning to users of the road by erecting appropriate signs so that, if exercising due regard for their own safety, users are able to avoid the danger, or by building into or adding to the road features such as safety devices or fencing which tend to minimise the danger."
Counsel for the defendant, Mr McElwaine, submitted that it is not arguable that the common law duty of care set out in Brodie applies in Tasmania. He relied upon the Local Government (Highways) Act 1982, s21(4). Section 21 is as follows:
"21. General responsibility of corporations
(1) Subject to this Act, the corporation of a municipality is charged with the duty of maintaining the local highways in the municipality that are maintainable by the corporation as shown on its municipal map, and, in any particular case, it shall discharge that duty in such manner as, having regard to all the circumstances of the case, it considers practicable and appropriate.
(2) For the purposes of the discharge of its duties under this section in respect of a highway, a corporation may carry out such works as it considers necessary for the maintenance or renewal of any bridge, embankment, or other work carrying, or otherwise associated with, the highway.
(3) The local highways in a municipality that are maintainable by the corporation vest in the corporation and, for the purpose of the exercise of its functions in respect of those highways, the corporation has, subject to the Traffic Act 1925 and the Vehicle and Traffic Act 1999, the care, control, and management of those highways.
(4) Except as otherwise provided in this Act, a corporation is not liable for any injury or loss arising from the condition of a highway unless that condition results from the improper carrying out of highway works that are carried out by, or at the direction of, the corporation."
The immunity operates in the context of the duty imposed by s21(1). Here the duty to install (and arguably maintain) the missing crest sign and the duty to install the missing 60 kms per hour sign did not arise under the Local Government (Highways) Act, but was imposed on the highway authority by the Traffic Act. The plaintiff is not required to show that he will succeed at trial. It is sufficient for him to establish that his case has a chance of success. It is, at least, arguable that the statutory immunity does not protect the defendant from liability arising from a breach of its obligation under the Traffic Act.
It is arguable that there is a causative link between the lack of signage and the occurrence of the accident which resulted in the plaintiff's injuries. There was no suggestion to the contrary.
Finally, on the question of whether there is an arguable case, Mr McElwaine submitted that an arguable case had not been made out within the terms of the pleadings as they currently stand. The plea of negligence includes an allegation of a failure to warn of the steep decline and a failure to install a speed restriction zone for vehicles travelling over the crest. The causative link between these failures and the accident and the injury is pleaded. This is sufficient to permit a finding at trial, if the evidence supports it, that the defendant is liable. In any event pleadings can be changed. It may be that because of the passing of time a proposed amendment, if allowed, would result in material prejudice to the defendant, but this would be a matter to be considered and determined on the hearing of the amendment application. It is not appropriate, necessary or desirable on the hearing of an extension of time application to endeavour to foreshadow the outcome of potential interlocutory applications.
The plaintiff has established that he has an arguable case.
The length of the delay and the explanation for it
The plaintiff's cause of action in respect of physical injury accrued on the day of the accident, namely 8 June 1994. If he has a separate cause of action for psychiatric injury arising from the death of his two friends, as distinct from a psychiatric injury arising out of his physical injury, it accrued within a short time of the accident. The writ issued on 19 August 2011. Post writ delay may be taken into account. Norris v McGeachy [2010] TASFC 4 per Blow J at par[26]. The writ was served in February 2012 and the extension of time application was filed in July 2012.
As I have already found, the plaintiff did not know that he had suffered compensable significant injury in the form of post-traumatic stress disorder for which the defendant might be held liable, until he sought out professional help. Although he first consulted a lawyer about the matter in November 2008, it was not until August 2011 that the writ issued. The plaintiff was living in Western Australia at the time he first consulted the lawyer and still lives in Western Australia. He was asked to write down an account of the incident, but did not complete this task and send his five page written statement to the lawyer until November 2009. His statement to the lawyer disclosed some of the difficulties he had experienced as a consequence of the accident and disclosed that he was being treated by psychiatrist Dr De Jong. There is no evidence as to why the writ did not issue until August 2011 and there is no evidence as to why service was apparently withheld until February 2012. The non-expert witness statements in support of the extension of time application were all dated June 2012 and from this I infer that the filing of the extension of time application was delayed pending written witness statements being obtained.
Although I have found that the plaintiff ought to have known by the end of the 1990s that he had a compensable claim, his failure to take steps to ascertain that that was the case until many years later is understandable. This is so having regard to his avoidance behaviour and heavy drinking arising from his post-traumatic stress disorder and his desire not to attempt to profit from the death of his two friends.
The plaintiff's post-traumatic stress disorder and its component avoidance behaviour and heavy drinking, as I have found, did not prevent the plaintiff from obtaining legal advice and pursuing his legal rights earlier. It did, however, make it harder for him to take the necessary steps to ascertain that he had a claim worth pursuing and then pursue the claim with diligence.
A plaintiff seeking an extension of time does not need to show that he or she is without blame for the delay. Knight v Smith [1975] Tas SR 83 at 92. The explanation must, in most cases, be given so that the Court is in an informed position to take it into account in assessing where the overall justice of the case lies.
I will take into account the plaintiff's responsibility for the delay in weighing the considerations relevant to the exercise of the discretion.
Prejudice
The plaintiff's claim includes a claim that the defendant failed to provide a road design sufficient to ensure the safety of persons and vehicles approaching and trafficking the crest of the hill on Rowsphorn Road at Riverside. As already noted the road was designed by a consulting engineering company engaged by the subdivider. The Council's role was to approve, modify or reject the design.
The obligation of municipal corporations was contained in the Local Government (Highways) Act, s10. Subsections (1), (2) and (3) are as follows:
"(1) Where this section applies to a highway opened or to be opened on any land, the owner shall ensure –
(a) that works (in this section referred to as 'the construction works') are carried out, in accordance with plans and specifications approved by the corporation, for the construction of a road or other way on the land or for the improvement, widening, or other alteration of a road or other way already existing on the land; and
(b) that the road or other way is kept in repair throughout the statutory period.
(2) Plans and specifications for the purposes of subsection (1)(a) shall be prepared by a civil engineer approved, or by another person approved, by the corporation.
(3) Where standard requirements apply, the corporation shall not approve the plans and specifications for the purposes of subsection (1)(a), unless it is satisfied that they conform with those requirements."
On the question of whether the design ought to have been approved, an examination of the plans and specifications and any alterations submitted by the consulting engineer to the Council would be necessary for a fair trial on the issue to occur. The uncontested evidence is that the engineering plans, once held by the Council, cannot now be found. They are not in the Council file relating to the subdivision and associated civil engineering works. They do not appear to have been part of the documentation produced at the inquest. The solicitor who represented the Council at the inquest has since destroyed his file. The engineering consultancy company no longer holds any documentation in relation to the design or construction of the road.
The Council has commenced third party proceedings against the engineering company seeking a contribution from that company in respect of any damages which may be awarded to the plaintiff. The loss of the entirety of that company's records in relation to the project must necessarily make the fair trial of the third party proceeding unlikely.
The plaintiff has not presented any evidence or argument as to how the prejudice caused by the loss of the design plans and specifications might be overcome.
I conclude that the chance of a fair trial on issues relating to the approval of the road design has become unlikely by reason of the delay in the commencement of the action.
Further, the uncontested evidence is that the engineering company, from which a contribution might be obtained, ceased trading in 2005. It holds no insurance cover relating to its potential liability for the accident and it appears, from the fact that it has not traded for many years, to be unlikely that it would hold assets to satisfy any judgment against it.
The defendant has suffered oppression by the late commencement of the action in that its insurance cover is now significantly less than it would have been had the action been commenced in the 1990s and prosecuted diligently. The Council's current insurance policy does not provide cover for the accident. The Council had a policy, at the time of the accident, with FAI General Insurance Company Ltd. A statement of facts agreed between the plaintiff and defendant shows that if the action had been tried or settled by early 2001 the Council would have been indemnified under the policy, subject to the payment of a $10,000 deductible. The statement of agreed facts is as follows:
"1FAI went into provisional liquidation on 15 March 2001.
2FAI went into liquidation on 27 August 2001.
3FAI is subject to a scheme of arrangement pursuant to section 411 of the Corporations Act 2001.
4The scheme document is agreed.
5Pursuant to the scheme of arrangement FAI is still within the Run-Off Period.
6The West Tamar Council has not yet lodged a claim pursuant to clause 17 of the scheme deed.
7If the application to extend time succeeds, it is the intention of the council to lodge a claim in accordance with clause 17 of the scheme deed.
8The present estimate of a dividend from the scheme administrator to be paid to claimants of FAI is between 50 and 60%, assessed in accordance with the scheme deed.
9If the plaintiff had commenced this proceeding within a reasonable date of 8 June 1994, then the council would have notified this claim to FAI pursuant to its then insurance policy as a public liability claim.
10As a notified public liability claim, the council would have been entitled to an indemnity in respect of the claim, subject to the limits of the policy.
11Pursuant to the policy the financial liability of council in respect of such a claim would have been limited to its deductible of $10,000."
I am satisfied that the delay has prejudiced the fair trial of the action and, in addition, the grant of an extension of time would be oppressive to the defendant.
The nature and extent of the plaintiff's loss
A refusal to extend time will always cause injustice to a plaintiff or prospective plaintiff. The greater the loss the greater the injustice. The plaintiff's advancement in life and his ability to establish the foundation for a secure financial future has been adversely affected by the accident. Although there are no particulars of the quantum of the claim, I accept that the damages which might be recovered by the plaintiff could be significant if an extension of time is granted and the action proceeds to trial.
The nature of the defendant's conduct
There was no assertion that there was anything in the defendant's conduct which caused or contributed to the plaintiff's delay or which otherwise might be taken into account in the plaintiff's favour.
The exercise of the discretion
A refusal to grant an extension of time will cause injustice to the plaintiff. He has an arguable case and an award of damages might be substantial. However, he has brought the injustice upon himself by reason of his delay. Although his post-traumatic stress disorder and associated avoidance behaviour and heavy drinking made it harder for him to ascertain his rights earlier it did not prevent him from doing so. The defendant has not contributed to the delay. If an extension of time is granted a fair trial on the issue of whether the defendant was at fault in approving the road design and a fair trial on the issue between the defendant and the engineering company in the third party proceedings is now unlikely to be possible because of the loss of the design plans and specifications for the road. The belated commencement of the proceedings has and will cause oppression to the defendant in that its level of insurance cover is now substantially diminished and its chances of recovering any amount it may be awarded against the engineering company appear to be remote.
When these matters are weighed the result, in my opinion, is that the justice of the case lies with refusing the application.
Disposition
The jurisdiction to extend time would only have arisen if the plaintiff had established that the date of discoverability was within three years of the date of the issue of his writ. The plaintiff has failed to establish this. Even if the discretion had arisen the plaintiff has failed to establish that the justice of the case rests with it being exercised in his favour.
The plaintiff's application for an extension of time is dismissed.
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