LESIAK v Shire of Roebourne - [2001] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LESIAK -v- SHIRE OF ROEBOURNE [2001] WADC 100

CORAM: CHARTERS DCJ

HEARD: 20 APRIL 2001

DELIVERED : 8 MAY 2001

FILE NO/S: CIVO 204 of 1999

BETWEEN: NADIA CAROL-ANNE LESIAK
Plaintiff
AND
SHIRE OF ROEBOURNE
Defendant

Catchwords:

Limitation Act s 47A - Application for leave in circumstance of delay in notifying claim and commencing action - Turns on its own facts

Legislation:

Limitation Act 1935

Workers' Compensation & Rehabilitation Act 1981

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Ms J Kenny
Defendant: Mr P K Walton

Solicitors:

Plaintiff: Dwyer Durack
Defendant: Jackson McDonald

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

Nil

Case(s) also cited:

Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR 114
Alexander v Westrail [2000] WADC 119
Baker v Shire of Albany [1994] A Tort Rep 61-579
Black v City of South Melbourne [1963] VR 34
Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
City of Gosnells v Roberts, unreported; FCt SCt of WA; Library No 9077; 27 September 1991
Kennedy v State of Western Australia, unreported; DCt of WA; Library No 3762; 24 June 1993
Leech v Melbourne and Metropolitan Tramways Board [1958] NR 398
Posner v Roberts [1986] WAR 1
Quinlivan v Portland Harbour Trust [1963] VR 25
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Thorne v Board of Management of Fremantle Hospital (1995) 13 SR (WA) 127

CHARTERS DCJ: The plaintiff seeks leave under s 47A of the Limitation Act 1935 to commence proceedings against the defendant for damages for personal injuries sustained on 19 October 1995 said to have been caused by the negligence and/or breach of duty as an occupier of the defendant, its employees, servants or agents.
Relevantly s 47A of the Limitation Act ("the Act") provides that no action shall be brought against any person for any act done in pursuance or execution, or intended execution, of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority unless:
(a)the prospective plaintiff gives to the prospective defendant as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued.
Notwithstanding the foregoing provisions of the section application may be made to the Court for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant. Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action subject to such conditions as it thinks it is just to impose.
The plaintiff's claim (by reference to her affidavit sworn 28 July 1999) is that on 19 October 1995 at about 9.45 am she was at the Karratha Airport Terminal in her employment as a flight attendant on a two hour stopover for a flight from Karratha to Perth. She was in the ladies lavatory area and put her handbag on the floor while she attended to her make‑up. She reached down to pick up her handbag and as she rose she believed that she struck her head on a towel rail/paper dispenser.
In that affidavit she said that the defendant was in breach of its duty under the Occupiers Liability Act in that it:
(a)failed to take any or any reasonable care to see that she was reasonably safe in using the ladies lavatory area at the airport;
(b)failed to take any or any reasonable care to prevent injury or damage to her from an unusual danger in the lavatory area of which the defendant knew or ought to have known;
(c)failed to take any or any adequate measures whether by way of periodic or other examination, inspection, test or otherwise to ensure that the lavatory was in a reasonably safe condition;
(d)failed to give her any or any adequate or effective warning that the lavatory towel rail/paper dispenser posed a hazard to her.
The following is the relevant history.
By a vesting order dated 15 March 1987 his Excellency the Governor vested in the Shire of Roebourne under the provisions of s 33 of the Land Act an area of land for the purposes of the Karratha Aerodrome.
The Karratha Aerodrome included facilities for Ansett staff and in the late 1980's toilet facilities were constructed for East West Airlines, which later became Airlink Pty Ltd ("Airlink") a subsidiary of Qantas. The defendant leased part of the airport building to Airlink. The defendant acknowledges that the plaintiff suffered an injury.
In her report of accident for her claim under the workers' compensation legislation she said the occurrence occurred in the "bathroom/toilet Qantas female toilet". She went on to say that the accident happened when she "bent down to pick up bag and hit head on the way up on towel rail" - the object involved was "towel rail".
There is some confusion of the identity of the toilets because of two sets of plans - one prepared in 1982 and one prepared in December 1995. Each shows a shower and the plaintiff claims in a statement of 27 October 1997 (which I have not seen) that she was injured after showering and redressing. Upon each plan there is another toilet area shown without a shower and the toilet facilities in the plans are differently situated.
The toilet facilities as they are thought to have existed in October 1995 are shown upon plans which are annexed to an affidavit of Keith Ernest Atkinson, a loss adjustor and assessor, sworn on 9 November 2000 and marked "KEA1". The plan marked 8 shows the area where the plaintiff says she was injured. These plans show four wash basins and, at the end of the premises near the shower, a hand dryer - which apparently is an air hand dryer. No towel rails or towel dispensers are shown upon the plans. This, however, is apparently not part of the Qantas area.
Ms Jayne Booth has described finding skin on a serrated edge of a towel dispenser in the public toilets near the main entry. This is not consistent with it being in the Qantas area.
In 1997 the airport terminal was redeveloped. Upon that redevelopment the hand dryers were to be retained in the positions they occupied before redevelopment - this is a note by reference to the existing male public toilets and it is said that the same was to be done to the female toilets. There is no reference to towel dispensers or a towel rail. The hand dryers were shown as "World model manufactured hand dryers".
Atkinson received confused reports upon his investigation in April 2000 concerning the existence of paper towel dispensers. There were contradictory reports concerning the type of paper towel dispenser thought to have been in place and recollections were vague concerning the time of their removal.
Following the plaintiff making her report of the occurrence on 19 October 1995 the plaintiff received compensation. The insurer was the Manufacturer's Mutual Insurance Company - not the insurer of the proposed defendant in these proceedings.
Amongst the medical practitioners and others seen by the plaintiff in respect of her injury have been Dr P L Silbert, a neurologist, since November 1995, Mr Barry White, a clinical psychologist and neuropsychologist, in December 1996, Dr C N De Felice, a psychiatrist, in October 1997, Dr Alan Home, a occupational physician, in November 1997, Dr Graziotti, an anaesthetist and specialist in pain management, in December 1997 and Ms G Hall, a work placement consultant, in February 1999. There have been other practitioners, medical and others, by reference to a list of payments made by the workers' compensation insurer - exhibit B to the plaintiff's affidavit sworn on 28 July 1999.
To January 1999 the plaintiff has received weekly payments totalling $105,123.37 gross and medical and other expenses paid of $27,092.55 gross - a total of $132,215.92. By 9 February 1999 she had reached the limit of prescribed payments under the Workers' Compensation & Rehabilitation Act, 1981.
The nature of the injury suffered by the plaintiff was a deep cut to her head accompanied by a whiplash injury. She has reported right frontal headaches ranging from mild to severe in intensity and right upper cervical pain with discomfort at the T8/9 and right L5/S1 levels. There is reported tenderness in the cervical spine and localised tenderness in the dorsal spine.
By November 1997 she was regarded as partially incapacitated for work and rhizotomy treatment at the C2/3 level of the spine was considered a possibility. She received local anaesthetic and Depomedrol and attended a physiotherapist during 1995. During 1997 the plaintiff was diagnosed as suffering from depression to the extent that she required psychiatric attention. Dr De Felice diagnosed her as suffering from a major depressive episode "occurring in the context of her chronic pain and disability".
The plaintiff does not rely upon mistake as a basis for delay in giving notice to the defendant or commencing an action before the expiration of one year from the date of the cause of action. She does say, however, that such failure was occasioned by other reasonable cause and that the defendant is not materially prejudiced in its defence by the failure or delay.
The "reasonable cause" is said to be her expectation that her injuries would fully recover. She did not therefore seek the advice of a legal practitioner until the middle of 1998. She was dissatisfied with that practitioner's conduct and sought the advice of her present solicitors on 30 September 1998. She gave instructions to her solicitors to commence these proceedings on 12 May 1999 and a letter was written to the defendant notifying the claim on 25 May 1999. This originating summons was issued on 18 August 1999.
The principles governing this application are well established. The plaintiff has the burden of demonstrating that leave should be granted and once she has laid the basis for showing that there is no material prejudice to the defendant, the defendant has an evidentiary burden to show some basis for the existence of prejudice.
I shall deal with the issues in turn.

Reasonable cause

Ignorance of the law does not amount to reasonable cause and whether she has shown reasonable cause for the delay requires an examination of all the circumstances.
Having regard to the reportedly serious nature of the plaintiff's injuries to her various medical practitioners it cannot be said that she has proved an expectation that the injuries would fully recover. Her symptoms appear to have become progressively more disabling and troublesome.
By mid‑1998 she saw solicitors and it was not until a year later that she notified a claim to the defendant.
She has not established a reasonable cause for the delay in notifying the claim and for commencing proceedings.

Material prejudice

The defendant has unquestionably been denied the opportunity of obtaining contemporaneous statements from personnel, of having the location of the accident examined by reference to the current allegation, identifying the fixture in question - whether it was a paper towel dispenser or a hand rail, its location, height from the ground and general characteristics.
The defendant has been denied the opportunity to have the plaintiff medically examined and reviewed over the period of time since the accident and by the time notification was given some three and a half years had elapsed since the date of the accident. During that time the plaintiff's condition deteriorated considerably.

The justice of the case

The plaintiff's claim as it is put in her affidavit alleges negligence in general terms. There is little within those particulars given that points to an unusual danger. Whilst it is not clear whether from the plaintiff's affidavit she alleges an injury to a towel rail or a paper dispenser, Jayne Booth in her affidavit suggests an injury to the serrated edge of a towel dispenser. The claim as it is currently put is tenuous. I am not persuaded that the justice of the case requires leave to be given.

Conclusion

In the result the plaintiff has not established any reasonable cause for the delay, the defendant has shown that it is materially prejudiced by the delay and there is no basis for determining that the justice of the case requires leave to be given.
The application is dismissed.