Marr v Green

[1992] TASSC 91

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Marr v Green [1992] TASSC 91; B10/1992

PARTIES:  MARR, Robert James
  v
  GREEN, Louise

FILE NO/S:  M24/1992
DELIVERED ON:  29 April 1992
JUDGMENT OF:  Zeeman J

Judgment Number:  B10/1992
Number of paragraphs:  10

Serial No B10/1992

List "B"

File No M24/1992

ROBERT JAMES MARR v LOUISE GREEN

REASONS FOR JUDGMENT  ZEEMAN J

29 April 1992

Limitation of actions – Action in negligence – Application to extend time – Delay by applicant and solicitor – Application refused.

1. The applicant seeks an order pursuant to the Limitation Act 1974, s 5(3), for an order extending the period limited for the bringing of an action for damages for personal injury allegedly suffered by the applicant as the result of the negligent driving of the respondent on 19 March 1988. In support of his application, the applicant sought to read four affidavits. The respondent took objection to the admissibility of portions of three of those affidavits. I immediately ruled on certain of those objections, but permitted other passages objected to be read de bene esse. All passages objected to and not previously ruled upon were objected to upon the basis that the matters deposed to were not relevant to any issue to be determined upon this application. I have concluded that all those passages are admissible as going to the manner in which the applicant‘s solicitor acted consequent upon being instructed by the applicant, the whole of that conduct being irrelevant to the exercise of my discretion. I granted leave to the applicant to give oral evidence to supplement the material contained in his affidavit. The applicant and the employed solicitor having the immediate conduct of his matter were cross–examined upon their affidavits. The respondent did not adduce any evidence. Upon the basis of the material contained in the affidavits to the extent that they were read and the oral evidence and the documentary exhibits tendered during the course of that oral evidence, I make the findings of fact which follow.

1. On 19 March 1988 the applicant was a pedestrian at the junction of Rokeby Road, Howrah and an access road to Wentworth Park. The applicant commenced to cross the road at that junction. He was struck by a motor car being driven by the respondent. As a result the applicant sustained injury to the right foot. The respondent does not seek to argue that in the circumstances the applicant does not have an arguable case in negligence against the respondent. At the time of his accident, the applicant was aged almost thirty and employed in a clerical capacity by the Department of Social Security. As the result of his injuries, he was incapacitated for work for some time. He discussed with his mother what he ought to do, and as a result of her advice he telephoned a solicitor who had previously acted for his father. That solicitor did not accept instructions but referred the applicant to another solicitor. At that time, the applicant had a belief that he was entitled to be recompensed for the expenditure incurred and to be incurred by him as a result of his injuries and also that he was entitled to receive some further amount by way of compensation. The applicant took the advice of his father's solicitor and sought to consult the solicitor to whom he had been referred. He did not actually see that solicitor, but on 7 April 1988 he saw a solicitor employed in his office. As to precisely what instructions the applicant gave the employed solicitor, or as to what advice she gave him, is quite unclear. However, I infer that the applicant told the employed solicitor what had occurred and relied upon her to take the necessary steps so that he would recover whatever compensation as was his entitlement.

1. On 11 April 1988 the employed solicitor wrote to the Motor Accidents Insurance Board ("the Board") enclosing an application for the payment of "no fault" benefits, asserting that the respondent had been negligent and indicating that the applicant would be pursuing a claim for damages. Some correspondence then followed as to the applicant‘s entitlement to be paid "no fault" benefits. On 20 July 1988 the employed solicitor wrote to the Board enquiring whether "liability had yet been considered". The Board replied on 26 July 1988 advising that it had appointed solicitors "to act for our Board in settlement of this matter". On 11 August 1988 those solicitors wrote to the applicant's solicitor offering to settle the question of liability on the basis of an apportionment therein specified. The applicant again saw the employed solicitor on 29 November 1988 when inter alia the applicant informed her that he had completed all medical treatment. Thereafter it appears that the solicitor did nothing until 17 May 1989 when she sent him a legal aid application form for completion and return. There was no evidence as to why the applicant was sent the legal aid application form. By that letter she also advised the applicant that once legal aid had been granted she would obtain medical reports, that the Board had made an offer to settle liability on the basis of the particular apportionment, and that she would seek his further instructions after she had received the medical reports. Although the offer as to an apportionment of liability had been made some nine months earlier, it does not appear as though that fact was communicated to the applicant prior to the letter of 17 May 1989. It appears that legal aid was refused and the applicant was informed of that by letter from his solicitor of 8 August 1989. By that same letter the applicant was asked to telephone upon receipt so that he could supply some information required to enable a medical report to be obtained. Such information was supplied on 28 March 1990. There was no suggestion that the applicant made any earlier attempt to communicate with his solicitor as requested. Thereupon the employed solicitor embarked on some further activity by way of correspondence (the purpose of some of which escapes me). On 9 April 1990 she wrote to the applicant advising inter alia that no offer of settlement had yet been made. If that was intended to refer to the offer of a sum of money, that advice was perfectly accurate, although at that time there was no basis upon which it could have been expected that an offer of that type would be forthcoming as the applicant‘s solicitor had provided absolutely no information to the Board's solicitor upon the basis of which the Board or its solicitors might formulate an appropriate offer. The letter of 9 April also sought some information from the applicant and he supplied that to his solicitor on 24 April 1990.

1. Thereafter there was complete inactivity on the part of the applicant and his solicitor until 3 October 1991 when the applicant contacted the employed solicitor. She then realised that the relevant limitation period had expired. She thereupon referred the file to her employer. He, within a few days, spoke to the solicitor acting for the Board enquiring whether the Board would plead a limitation defence. On 29 October 1991 he was advised that "the Board takes the point as to time and we are to oppose any application for an extension of time." On 21 January 1992 he advised the applicant that any action by him was statute barred. There is no explanation for the delay of almost three months in so advising the applicant. Having advised the applicant, prompt action was then taken to instruct counsel and to file the application seeking an extension of time.

1. The history of this matter displays a regrettable lack of attention to the applicant‘s instructions by the employed solicitor. Not only were steps taken only sporadically, some of those steps were inappropriate and unnecessary. Steps that ought to have been taken were not taken. Having received an offer as to the apportionment of liability, the employed solicitor did nothing by way of making the usual inquiries (eg by obtaining copies of the police statements) with a view to being in a position to give the applicant informed advice. She did not ever give any advice on this question to the applicant. I suspect that the real reason for the lack of attention is to be found in the inexperience of the employed solicitor and her lack of familiarity with the conduct of running down cases. She said in evidence that it formed only a very small part of her practice. I formed the impression that she did not know what to do. It is a matter of regret that solicitors accept instructions in areas of the law of which they do not profess to have any sufficient knowledge and in which they are not sufficiently experienced. Her employer is not free from blame. Having regard to her inexperience she should only have been entrusted with the matter upon the basis that she was closely supervised. His own delay in informing the applicant of the fact that he was out of time to bring an action is unexplained and inexplicable.

1. The manner in which this matter was conducted by the employed solicitor was dilatory and misdirected almost from the outset. Even if one accepts that delays up until the letter of 8 August 1989 were not unreasonable, one is left with the subsequent delays. The delay over the ensuing period of some eight months was equally the fault of the applicant and the employed solicitor. There is no suggestion that within that period he provided the information which had been requested of him by his solicitor. Similarly, there is no information as to what, if anything, the solicitor did by way of follow–up. There was then a flurry of activity during late March and April 1990 after which absolutely nothing happened until 3 October 1991 when the applicant telephoned the employed solicitor and she became aware of the limitation date having passed. No explanation for that delay or inactivity was given by the employed solicitor. The applicant's explanation, in essence, is no more than that having instructed a solicitor, he relied upon that solicitor to take all necessary steps. There then follows a further period of delay of almost three months, during which, conscious of the fact that the limitation period had expired and that a limitation defence would be relied upon by the respondent, the applicant‘s solicitor failed to inform the applicant of those facts and therefore did nothing by way of an application for an extension of time or telling the respondent or the Board that such an application would be made.

1. I accept the applicant's evidence that he was unaware of the existence of the time limit provided for by the Act, s5(1). However, no evidence was given by the applicant as to whether he had any knowledge of the existence of time limits in a general sense in circumstances such as the present. Having consulted a solicitor, he might well have held the belief that if there was any time limit, the solicitor would ensure that such steps as needed to be taken within a particular period of time would be taken within such period.

1. Counsel for the respondent asserted that upon the material before me there was at least the potential for prejudice. He did not suggest that actual prejudice could be said to have been demonstrated. Whilst delay in itself might be said to constitute prejudice or to have the potential to create prejudice, I am not persuaded that the material indicates that there is any significant risk of material prejudice to the defendant if I were to grant the application.

1. I consider the major consideration in exercising my discretion to be the question of delay. The Act, s5(3), enables me to make the order sought if I consider "that in all the circumstances of the case it is just and reasonable so to do". Nevertheless, it is for the applicant to persuade me that it is appropriate that the discretion be exercised in his favour (Klein v Domus Pty. Ltd. (1963) 109 CLR 467). Whilst the extent of the responsibility for the delay which rests with the applicant‘s solicitor is relevant, there is no general proposition that where delay may fairly be said to be occasioned by a solicitor of a blameless claimant that an extension of time will be granted as a matter of course. Each case must be determined on its own facts, and fault attributable entirely to the fault of a solicitor may nevertheless be a factor relevant to declining to exercise the jurisdiction. The appropriate general principles are those referred to by the High Court in Sophron v The Nominal Defendant (1957) 96 C.L.R. 469 at 474 – 475.

1. In the present case, the applicant's solicitor was guilty of gross delays, to which I have already referred. Nevertheless, the applicant was far from blameless. Having been asked to telephone the applicant‘s solicitor on a matter indicated as being relevant to his claim, he did not do so for a period of eight months. By March 1990 the applicant was in the situation that he knew that an offer to settle on a certain apportionment of liability had been made, he had been told that that offer could be considered when a medical report was obtained and he had been provided with information which ought to have led him to believe that a medical report would be obtained shortly. Nevertheless he thereafter made absolutely no enquiry until well outside the limitation period. This is not a case where the applicant was expressly assured that necessary steps were being taken. Whilst his solicitor's delay was inexcusable a reasonable person would have made much earlier enquiry. In cross–examination the applicant appeared to suggest that as he was continuing to see his solicitor the matter was proceeding satisfactorily. In fact he was not seeing his solicitor on any regular basis. It does not appear that he saw his solicitor after March 1990 and that his last telephone contact with her prior to 3 October 1991 was in April 1990. The delays on the part of the solicitor and his employee were extensive and largely unexplained. The delay on the part of the applicant between August 1989 and March 1990 is unexplained. His delay from April 1990 to October 1991 is largely unexplained. Delay is only one of the factors relevant to the exercise of my discretion. In the present case it is a very important factor. I am not persuaded that the extension ought to be granted. The application is dismissed.