Lauren Michelle Carr v Tuggeranong Town Centre Pty Ltd
[2014] ACTSC 46
•21 March 2014
LAUREN MICHELLE CARR v TUGGERANONG TOWN CENTRE PTY LTD
[2014] ACTSC 46 (21 March 2014)
LIMITATION OF ACTIONS – application to join defendant after expiry of limitation period – action for personal injury as a result of a slip and fall – respondent cleaner of floor – applicant aware of respondent prior to expiry of period – delay explained by necessity to investigate relationship between existing defendant and respondent
Civil Law (Wrongs) Act 2002 (ACT), ss 51(1), 54
Limitation Act 1985 (ACT), ss 16B, 36
Doyle v Gillespie [2010] ACTSC 21
Sessions v Phengsiaroun [2008] ACTSC 132
No. SCC 302 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 21 March 2014
IN THE SUPREME COURT OF THE )
) No. SCC 302 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: LAUREN MICHELLE CARR
Applicant
AND: TUGGERANONG TOWN CENTRE PTY LTD
(ACN 117 384 424)
Defendant
AND:SPOTLESS FACILITY SERVICES PTY LTD
(ACN 072 293 880)
Respondent
ORDER
Judge: Burns J
Date: 21 March 2014
Place: Canberra
THE COURT ORDERS THAT:
The period within which an action may be brought against Spotless Facility Services Pty Ltd be extended to a date 14 days after publication of this judgment.
The applicant be granted leave to join Spotless Facility Services Pty Ltd as a defendant in these proceedings.
The costs of the application under the Limitation Act be paid by the applicant.
The costs of the application to join Spotless Facility Services Pty Ltd as a defendant be costs in the cause.
On 20 December 2013, I heard two applications in these proceedings. The first is an application to join Spotless Facility Services Pty Ltd (Spotless) as the second defendant in these proceedings. The second application is for an order extending the time for commencement of proceedings against Spotless.
On 10 March 2009, the plaintiff commenced proceedings in negligence against Tuggeranong Town Centre Pty Ltd, the defendant. The plaintiff alleges that on 14 January 2008 she was injured when she slipped and fell in the defendant’s premises, the Hyperdome Shopping Centre at Tuggeranong, by reason of the condition of the floor. The defendant has filed a defence denying liability.
The history of these proceedings is set out in an affidavit sworn on 27 March 2013 by Kristen Taylor, a solicitor in the firm representing the plaintiff. After her injury the plaintiff spent some time recuperating at her parents’ home in Temora, New South Wales. She was off work for approximately six weeks, returning to work on a graduated return to work program before returning to full pre-injury duties in May 2008. She instructed her lawyers on 30 April 2008. On 25 August 2008, the plaintiff’s lawyers sent a Notice under s 51(1) of the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act) to the Hyperdome Shopping Centre advising it of the plaintiff’s claim. The Notice said that the accident occurred on about 14 January 2008 at approximately 8:50 am in the Hyperdome Shopping Centre when the plaintiff slipped and fell as she was walking to her workplace. By a letter dated 29 August 2008, Proclaim Management Solutions Pty Ltd (Proclaim) advised the plaintiff’s lawyers that they acted on behalf of “Centro” and that they considered their client, the defendant, “to be a proper respondent to your client’s claim”.
By letter dated 13 October 2008, the plaintiff’s lawyers requested documents relating to the system of cleaning at the Hyperdome Shopping Centre. Proclaim responded by letter dated 1 December 2008 enclosing an investigation report prepared by a firm of loss assessors. That report advised that “Spotless Services” were the cleaning contractors of the Hyperdome Shopping Centre and had been cleaning the property for over 10 years. I understand this to be a reference to Spotless Facility Services Pty Ltd. The report then set out the method employed by employees of Spotless in cleaning the floors of the Centre. It also set out the results of the loss assessor’s investigations, which suggested there had been no spillages or foreign substances on the ground near where the plaintiff fell.
By letter dated 29 January 2009, the plaintiff’s lawyers advised Proclaim that they required a site inspection. On 10 March 2009, they commenced proceedings against the first defendant in this Court. On 21 April 2009, the plaintiff’s lawyers received a letter from Thompson Cooper Lawyers advising that they act for the defendant and requesting particulars of the claim. On 20 May 2009, the defendant filed a defence. On 17 July 2009, a site inspection occurred at the premises of the defendant. On 23 June 2009, the plaintiff’s lawyers responded to the defendant’s request for particulars. On 3 December 2009, the plaintiff’s lawyers requested that the defendant provide discovery.
On 21 December 2009, the plaintiff obtained a liability report from Dr Cubitt. He noted that the floor where the plaintiff slipped was inspected on 17 July 2009. He undertook tests to measure the coefficient of friction in the area where the plaintiff fell. He also reviewed CCTV footage of the plaintiff’s fall, as well as other documents relating to earlier testing of the relevant floor. Dr Cubitt concluded that the plaintiff fell due to the floor being slippery. He stated that the slip resistance of the floor when tested in accordance with the relevant Australian Standard suggested the contribution of the floor to the plaintiff slipping was “High to Very High”. On 22 January 2010, the plaintiff’s lawyers received an expert’s report of 16 October 2008 from the defendant’s lawyers.
On 25 February 2010, the plaintiff’s lawyers received a letter from the defendant’s lawyers enclosing an affidavit verifying a list of documents. Thereafter, the plaintiff pursued medical reports in support of her claim but little appears to have been done on the issue of liability until 8 February 2012 when her lawyers wrote to the defendant’s lawyers, referring to their letter of 22 November 2011, and in particular the cleaning contract between the defendant and Spotless, and requesting copies of documents required by the contract to be provided to the defendant by Spotless. A further letter dated 7 November 2012 requested copies of all documentation regarding all slip and fall incidents at the defendant’s premises for a period of three years prior to the date of the plaintiff’s fall. Subsequently, on 7 November 2012 the plaintiff’s solicitors sent a Notice under s 51(1) of the Wrongs Act to Spotless. On 11 December 2012, the plaintiff’s lawyers forwarded to Spotless a copy of the application that it be joined as a second defendant. Spotless instructed lawyers who wrote to the plaintiff’s lawyers on 17 December 2012. The lawyers representing Spotless were under the misapprehension that proceedings had been commenced against Spotless in the District Court (presumably in New South Wales), and requested that the plaintiff’s lawyers refrain from taking steps to enter default judgment without seven days notice whilst they were investigating the matter.
The application to join Spotless as a second defendant was due to be heard on 17 December 2012. On that date, by consent, the application was adjourned to 4 February 2013. Neither party appeared before the Registrar on that date, and the matter was further adjourned to 11 February 2013. Subsequently, and by consent, the application was further adjourned to 4 March 2013. On that date, orders were made that the plaintiff file and serve any application under the Limitation Act 1985 (ACT) together with supporting affidavits within seven days. The defendant was to file and serve any affidavits in response by 25 March 2013. The application to join Spotless as a second defendant was adjourned to 5 April 2013, at which time it was understood that the proposed application under the Limitation Act would also be before the Court. On 5 April 2013, both applications were adjourned, by consent, to 19 April 2013 in the Registrar’s call over list. On that date the proceedings were again adjourned at the request of the parties to 26 April 2013 with leave to approach the list clerk for allocation of a special fixture to hear the applications. On 26 April 2013, this matter was docketed to myself and on 10 May 2013 came before me. I allocated one day for the hearing of the applications on 25 July 2013. On 19 July 2013, the parties relisted the matter to advise that they were no longer available on 25 July 2013. That date was vacated and the matter was further listed for hearing of the applications on 20 December 2013. On that last date I heard the applications and reserved my decision. On 29 January 2014, the lawyers for Spotless wrote to the plaintiff’s lawyers requesting further and better particulars of the proposed Amended Statement of Claim. On 8 February 2014, the plaintiff’s lawyers wrote to the lawyers for Spotless noting that pursuant to s 54 of the Wrongs Act Spotless was conclusively presumed to be satisfied that the Notice of 7 November 2012 was a complying Notice of Claim.
THE APPLICATIONS
By virtue of s 16B of the Limitation Act the plaintiff’s claim against Spotless had to be commenced within three years of sustaining her injuries. Section 36 of the Limitation Act allows this court, if it is satisfied that it is just and reasonable to do so, to order that the period within which the plaintiff’s action may be brought be extended for such period as it determines. In exercising that power I am to take into account all of the circumstances of the case including the following (s 36(3)):
a)The length of and reasons for the delay on the part of the plaintiff;
b)The extent to which, having regard to the delay, the years are likely to be prejudice to the defendant;
c)The conduct of the defendant after the cause of action accrued to the plaintiff;
d)The duration of any disability of the plaintiff;
e)The extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was a trip at all, might be capable at that time of giving rise to an action for damages; and
f)The steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
As Refshauge J pointed out in Doyle v Gillespie [2010] ACTSC 21 the considerations set out in s 36 are not exhaustive and the Court must have regard to “all the circumstances of the case”: Sessions v Phengsiaroun [2008] ACTSC 132. These circumstances include the prospects of success of the proposed plaintiff, the time between when the limitation period expires and the time the proposed plaintiff gives notice to the proposed defendant and whether a fair trial is possible.
The limitation period of three years in this case expired on 13 January 2011. The Notice under the Civil Law (Wrongs) Act was served on Spotless on 7 November 2012. I am satisfied that on 1 December 2008 the plaintiff’s lawyers became aware of the possible involvement of Spotless by virtue of the contents of the investigation report from the loss assessors. However, I accept that significant further enquiries needed to be undertaken by the lawyers for the plaintiff before they could have, acting reasonably and appropriately, sought to join Spotless in these proceedings. For example, it was important for the plaintiff’s lawyers to know the contractual relationship that existed between the defendant and Spotless. Any joinder of Spotless could also affect the nature of the case against the defendant, so it was important for the plaintiff’s lawyers to undertake appropriate discovery and inspection of documents prior to contemplating joining Spotless as a party. The application to join Spotless was lodged on 7 December 2012, and the application was served on Spotless on 11 December 2012.
In my opinion, the delay in commencing proceedings against Spotless is largely explained by the necessity for the plaintiff’s lawyers to properly investigate the relationship between the defendant and Spotless, and the potential role of Spotless in the accident causing the plaintiff’s injuries, before commencing proceedings. The delay is not egregious, and by itself does not preclude the court exercising its discretion under s 36.
There is no suggestion that Spotless is prejudiced by the plaintiff’s delay in commencing proceedings, other than the inevitable prejudice that attends any delay, even a delay within the limitation period. There is no suggestion that Spotless does not have appropriate records which will enable it to properly assess and, if necessary, defend the proposed proceedings. I am satisfied that Spotless can receive a fair trial.
As a result of her fall the plaintiff suffered a traumatic dislocation of the left elbow requiring surgery. Physical therapy for a period of 18 months after surgery resulted in a satisfactory, but by no means complete, recovery. However, there is a high likelihood that she will develop arthritic changes in her elbow joint in coming years, resulting in significantly increased deficits. As such, the duration of her disabilities arising from her injury is likely to be prolonged.
The circumstances in this case favour the extension sought by the plaintiff. I am satisfied that it is just and reasonable to extend the period during which the plaintiff may bring proceedings against Spotless. I order that the period within which an action may be brought against Spotless be extended to a date 14 days after publication of this judgment. I further order that the plaintiff be granted leave to join Spotless Facility Services Pty Ltd as a defendant in these proceedings. The costs of the application under the Limitation Act, as an application seeking an indulgence, should be paid by the plaintiff. The costs of the application to join Spotless as a defendant will be costs in the cause.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 21 March 2014
Counsel for the Applicant: Mr D Richards
Solicitor for the Applicant: Blumers Personal Injury Lawyers
Counsel for the Respondent: Mr D A Lloyd
Solicitor for the Respondent: Lee & Lyons Lawyers
Counsel for the Defendant: Mr J Deegan
Solicitor for the Defendant: Bradley Allen Love
Date of Hearing: 20 December 2013
Date of Judgment: 21 March 2014
2
2