King v Roelf Vos (Holdings) Pty Ltd

[1999] TASSC 89

[1999] TASSC 89

CITATION:              King v Roelf Vos (Holdings) Pty Ltd [1999] TASSC 89

PARTIES:  KING, Colin Thomas
  v
  ROELF VOS (HOLDINGS) PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M27/1999
DELIVERED ON:  13 August 1999
DELIVERED AT:  Launceston
HEARING DATE:  12 August 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Applicant:  K McLagan
           Respondent:  D Lynch
Solicitors:
           Appellant:  Rae & Partners
           Respondent:  Simmons Wolfhagen

Judgment  Number:  [1999] TASSC 89
Number of paragraphs:       8

Serial No 89/1999
File No M27/1999

COLIN THOMAS KING v ROELF VOS (HOLDINGS) PTY LTD

REASONS FOR JUDGMENT  COX CJ
(DELIVERED ORALLY)  13 August 1999

1. This is an application for an extension of the time limited for commencing proceedings, in tort, for damages for personal injuries sustained by the applicant on 11 September 1995, in a supermarket.  The incident occurred when he went to a line of shopping trolleys, placed his left hand on the bar of the second trolley in the line, and pulled on the first trolley with his right hand.  The trolley was jammed and he deposed to having pulled hard on it three or four times.  Suddenly, and without warning, he claims the trolley came loose and he fell backwards on the floor sustaining injury.  As the applicant's repeated attempts to free the trolley by pulling hard on it several times were designed for that very purpose, that is, to make it come loose, I find it hard to see how it could be said to have come loose suddenly and without any warning.  Be that as it may, there is no allegation of mechanical fault in the trolley to have caused a sudden and unexpected departure by it from the line of trolleys, nor is there any specific allegation of any want of care on the part of the respondent which caused this to happen.  I am unpersuaded that the applicant has made out a prima facie case of negligence, but if I am wrong about that, the applicant's explanation for the delay is far from satisfactory. 

1. Nine days after the incident he consulted a lawyer at the local Legal Aid Office.  In or around March 1996, he was advised by the legal aid office "that they did not wish to act for me further.  I was told by a person from Legal Aid that they did not believe that I had a strong or valuable claim".  He said that the office did not advise that a time limit applied and they did not suggest that he go and see another lawyer.

1. Notwithstanding his complaint about the failure to make that suggestion, he did ask Legal Aid to forward the file to another solicitor, Mr Richardson.  This was in December 1996 but he did not consult Mr Richardson and he simply arranged for the file to be left with him for what he described as "safe-keeping".  He said that "at that stage I took Legal Aid's word for it that I did not have a case and so I did nothing further for some time." 

1. In the thirty-sixth month of the period of three years set by the Limitation Act 1974, he heard about a firm of solicitors in Victoria who had what was described as a "no win, no pay arrangement", and he telephoned them on 12 August 1998 and spoke to a Mr Duffy. He instructed Mr Duffy to institute a claim. He said he had not instructed another solicitor previously because he could not afford to do so, but I think it is clear, and I so find, that he accepted the advice of the Legal Aid solicitor that his case was not very strong and decided at that time not to take the matter further.

1. Mr Duffy was unaware that in Tasmania the limitation period is three years and assumed that it was four years.  Although he busied himself towards marshalling the relevant material, he failed to institute proceedings in time.  When he sent a letter of demand on 13 October 1998, a few days after finding out from a Tasmanian solicitor agent that the limitation period in Tasmania was three years, the respondent's solicitors denied liability and indicated reliance on the statute.  Thereafter, Mr Duffy took some steps to seek an extension of time but unaccountably the file was put away and nothing was done about it between 4 December 1998 and 21 May 1999.  These proceedings were commenced by application dated 30 June 1999.

1. Although in the latter part of the time which elapsed before this extension was sought, there was fault on the part of the applicant's solicitors rather than on his part, and this is a circumstance which is material, see Sophron v Nominal Defendant (1957) 96 CLR 469, one must nevertheless look at the whole period of time and the conduct and decisions of the applicant himself. He had made a decision relatively early, on the advice of the Legal Aid lawyer, not to commence proceedings. With his financial difficulties, he may have wished to preserve his options until he could afford to take further advice, but notwithstanding leaving the file in Mr Richardson's custody, he made no effort to consult Mr Richardson or to explore the possibility of procuring some advice without committing himself to expenditure he could not afford. It was only when he heard of the possibility of taking action on a "no win, no pay arrangement", virtually on the death-knock of the limitation period, that he decided to resurrect the potential claim he had to all intents and purposes by then abandoned.

1. Some degree of prejudice to a respondent is almost always inevitable where there are delays of this kind.  An assistant manager was informed of the accident on the day it occurred, but it appears the respondent company was first made the subject of any demand in October 1998.  While not said to be specific, I infer that the respondent will encounter some prejudice in investigating and defending this action and this should be borne in mind. 

1. In all the circumstances I am not persuaded that it is just and reasonable to extend time.  I record that even if my assessment of the strength of the applicant's case of negligence against the respondent is wrong, and it can be said to amount to a prima facie or arguable case, I am not satisfied, having regard to the other matters I have mentioned, that it is just and reasonable to extend time and so the application must be dismissed.