Krogh v Bennett - [2015] WADC 147

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KROGH -v- BENNETT [2015] WADC 147

CORAM: BIRMINGHAM QC DCJ

HEARD: 13 OCTOBER 2013

DELIVERED : 11 DECEMBER 2015

FILE NO/S: CIVO 210 of 2014

BETWEEN: KATHERINE KROGH
Applicant
AND
WARREN BENNETT
Respondent

Catchwords:

Personal injury - pillion passenger injured - Claim not commenced within 3 years - Limitations Act 2005 (WA) - Application for leave to commence out of time pursuant to s 39 of the Act - Whether aware that injury attributable to conduct of a person - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application for leave refused

Representation:

Counsel:

Applicant: Mr P C Doherty SC with him Mr R Di Michiel
Respondent: Mr D M G Burton

Solicitors:

Applicant: Premier Compensation Lawyers
Respondent: SRB Legal

Case(s) referred to in judgment(s):

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63

BIRMINGHAM QC DCJ: At 10.30 pm on 4 February 2010, the applicant was the pillion passenger on a motorcycle driven by the respondent when it struck a roundabout. The applicant and the respondent were both ejected from the motorcycle and sustained personal injury.
As a consequence of the accident the applicant was hospitalised for two days. The more significant injuries suffered by the applicant included fractured limbs, cuts and abrasions.
In May 2010 whilst visiting the respondent in Royal Perth Hospital the applicant was informed that she could make a claim in relation to her injuries. Thereafter the applicant contacted the Insurance Commission of Western Australia (ICWA) and gave notice of her intention to claim.
In June 2010 the applicant met with ICWA investigators and provided a statement as to the circumstances of the incident and her injuries together with a notice of intention to make a claim. The notice of claim was expressed to be for 'bodily injury as a result of a crash caused by or by the driving of a motor vehicle.' The respondent was identified as the driver. The circumstances of the crash recorded 'One passenger on a nightly ride was dark, bike was in good condition, driver hit roundabout and both came off and hospitalised.'
On18 October 2010 ICWA wrote to the applicant in the following terms:
RE: MOTOR VEHICLE CRASH – 4 February 2010
We confirm our investigations into the circumstances of the crash have now been completed.
For the claim to succeed it is necessary to establish fault against the driver/owner of a Western Australian registered vehicle.
Based on our enquiries we consider our insured was not negligent as you had voluntarily placed yourself at risk.
Regrettably, liability for your claim is denied.
If you disagree and would like to discuss our decision please do not hesitate to contact your Case Manager, Paul.
In accordance with the Limitation Act 2005, if you intend to pursue your claim you must take action within three (3) years of when you first became aware of your injury (generally the date of the crash) or alternatively seek legal advice to commence Court proceedings to preserve your claim.
Yours faithfully
Thereafter the applicant took no further action in relation to claiming in respect of her injuries.
By operation of s 14(1) Limitation Act 2005 (the Act) the applicant right to commence a cause of action against the respondent in respect of the injuries suffered by her ceased on 3 February 2013.
The applicant now seeks leave to commence such an action.
Relevantly, s 39 of the Act provides:
39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues —
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry had been unable to establish that person's identity.
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware —
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
…
In her affidavit sworn 13 May 2015, after stating relevant background material relating to her personal circumstances and the accident, the applicant deposes:
47.I gave the Notice of Intention to Make Claim form dated 11 June 2010 to the representatives of the insurer at the conference.
48.The representatives of the insurer stated that they would process my claim form and let me know either by phone call or letter about how the claim was going.
49.From June 2010 to October 2010, I was waiting to hear from them.
50.They did not leave me with their contact details, a phone number or anything to call them on so I just waited to hear from them.
51.I received a letter from the Insurance Commission of Western Australia dated 18 October 2010 stating that my claim is denied and specifically that 'Based on our enquiries we consider the insured was not negligent as you had voluntarily placed yourself at risk'. Attached hereto and marked with the letter 'B' is a true copy of that correspondence.
52.I took that correspondence to mean that the Insurance Commission were saying that my injuries from the motorcycle accident were not the fault of the driver Warren Bennett.
53.I also understood their letter to mean that the injuries I sustained in the motorcycle accident must somehow be my own fault as they were saying it was not attributable to the driver and Warren and I were the only 2 people involved in the accident.
54.I didn't understand this as Warren was the driver and I was simply a passenger but this is what the letter said and I believed they must be right as it was written by the insurer who knows this kind of thing.
55.I believed I was unable to make a claim as a result.
56.I did not take any further steps to advance my claim as I assumed what the Insurance Commission had stated was right and that I did not have a claim.
(emphasis added)
It is the applicant's case that whilst aware of the physical cause of her injury, following receipt of the ICWA letter, her state of awareness was that her injuries were not attributable to the conduct of a person, namely the respondent as the driver.
The proper construction of s 39 of the Act was considered in AME Hospitals Pty Ltd v Dixon [2015] WASCA 63.
McLure P said (Newnes JA agreeing) [18] ‑ [22]:
First, to enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness of the person to whom the cause of action accrues, at the time when the limitation period expired, of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person.
The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).
In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues (and guardian if under 18) first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3).
Second, the matters listed in s 39(3) do not correspond with the material elements of a cause of action for damages for personal injury. In particular, no attention is required to the legal issue of whether there is a duty of care, the factual issue of whether the standard of care has been breached or issues going to the legal aspect of causation and remoteness of damage.
Third, s 39 (unlike s 56) does not separately require awareness of the injury. That is because awareness of a patent or latent injury is, under s 55(1) (a) and s 55(1) (b) respectively, the trigger for the accrual of the cause of action for damages for personal injuries in non-asbestos cases. How s 39 applies in a case where a latent injury becomes patent after the expiry of the limitation period does not need to be determined in this case.
Further [31] ‑ [36]:
The phrase 'attributable to' has been the subject of judicial consideration in a number of cases including Roncevich v Repatriation Commission (2005) 222 CLR 115, Laminex (Australia) Pty Ltd v Coutts [2006] NSWCA 186 and Central Asbestos Co Ltd v Dodd [1973] AC 518, 533.
In Roncevich the High Court considered the meaning of s 70(5) of the Veterans' Entitlement Act 1986 (Cth), which referred to an injury which 'arose out of, or was attributable to' defence service. In the joint judgment, the High Court said:
A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate [27].
That is, a causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be attributable to a person's conduct. Whether a non-causal connection could satisfy the requirement does not arise for determination in this case. However, there is much to be said for the view of the New South Wales Court of Appeal in Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 [25] that the statutory requirement in s 60I of the Limitation Act 1969 (NSW) of a 'connection between the personal injury and the defendant's act or omission' must be understood as involving an element of causal relationship. The case is more compelling when the injury must be 'attributable' to a person's conduct.
The natural and ordinary meaning of the term 'aware' is cognisant or informed of. That is, awareness can result from information provided by a third party. In the context of s 39(3), actual awareness is required, not constructive awareness: Harris v Commercial Minerals Ltd (1996) 186 CLR 1, 9 ‑ 10.
The appellants do not contend that awareness includes actual awareness of the relevant person's duly authorised agent (such as the respondent's solicitors). In that circumstance, awareness would be imputed rather than constructive. However, that issue can be put to one side.
What constitutes actual awareness will depend on the nature of the fact or matter in issue. In this case, awareness of the physical cause of the respondent's injury is a matter of inference, from primary facts, that requires expert medical knowledge and experience. That the respondent's father may have been aware of some or all of the primary facts and of the opinion of a non-qualified person as to the physical cause of the respondent's injury cannot satisfy the actual awareness requirement.
The applicant's state of awareness for the purposes of s 39 can be determined by her response to the following questions: first, what caused the applicants injuries, secondly, were such injuries attributable to the conduct of a person, and thirdly, who was that person?
What is required is actual awareness, not constructive awareness of the physical cause of the injury and that it was attributable to the conduct of an identified person.
In answer to the first question, the focus is on the mechanism or circumstance which produces the injury in fact as distinct from causation at law. There is no doubt that the physical cause of the injury to the applicant was her falling from the motorcycle following its collision with the roundabout.
The second question requires an examination of the causal connection in fact (as distinct from causation at law) to satisfy the requirement that the injury is attributable to a person's conduct.
The matters to be identified in respect of such an application do not equate with all of the material facts of the cause of action for damages for personal injuries. Further, it is not essential that the awareness of the relevant facts are held with sufficient confidence reasonably to justify the commencement of proceedings against a proposed defendant in a relevant cause of action: AME Hospitals Pty Ltd v Dixon [40].
The critical question is one of factual causation. The applicant says that as a result of receiving the ICWA letter she then believed that she sustained her injuries as a consequence of her own fault - not the respondent driver. That is to say, that her state of awareness was that her injuries were attributable to her own conduct in placing herself at risk and not attributable to the conduct of the respondent.
Insofar as the applicant relies on the contents of the ICWA letter her relevant state of awareness focuses on the issue of legal causation and not factual causation.
It is apparent that as early as February 2010 the applicant was aware that she had suffered a serious injury as a result of a motorcycle accident.
Further, the applicant was aware of all relevant facts concerning the accident that gave rise to her injuries. The applicant's belief that it was attributable to the conduct of a person – relates to the fact that the conduct of another factually caused her injury.
The applicant's belief that it was her fault goes to the issue of legal causation – her belief in relation to the legal responsibility for her injury and not to the factual issue as to whether the injury as attributable to the conduct of another.
As at 4 February 2013 the applicant was aware that she had suffered physical injuries as a result of the motorcycle accident and the identity of the only possible person responsible for causing such injuries, if it was not the applicant, was the respondent. The respondent's identity was then known to her.
The applicant interpreting the ICWA letter to attribute to herself (rather than the respondent) responsibility for her injuries goes to legal causation and not factual causation. In effect, the applicant seeks leave to commence proceedings founded upon her misunderstanding as to the law.
The ICWA letter did not cause or create a state of awareness as to factual causation of the incident. The word 'fault' in par 2 of the letter was expressed in the legal sense, that is to say, liability for negligence and not in the causal sense. It was a factual matter that someone else's conduct caused the injury.
Unlike the circumstances in AME Hospitals Pty Ltd v Dixon, this is not a case where the physical cause of the injury was a matter of inference from primary facts that required expert medical knowledge or experience.
At its highest, the applicant did not then believe that she could successfully claim against the respondent.
Further, the applicant was specifically informed of the limitation period, the requirement to commence proceedings within time and the need to seek legal advice if necessary. In my view, notwithstanding her personal circumstances, the applicant ought reasonably to have become aware as to her right to claim and sought clarification as recommended immediately upon receipt of the letter.
In the circumstances the application for leave to commence the action is refused.