Mayne, Gregory Charles v Kemp, Vivian John

[1998] TASSC 134

134/1998

PARTIES:  MAYNE, Gregory Charles
  v
  KEMP, Vivian John

TITLE OF COURT:                  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 28/1998
DELIVERED:  2 November 1998
HEARING DATE/S:                  24 August 1998
JUDGMENT OF:  Cox CJ, Underwood J, Slicer J

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of time - Principles upon which discretion exercised - Motor vehicle accident - Personal injuries - Prima facie case - Explanation for delay offered - Prejudice - Appeal from exercise of judicial discretion.

Limitation Act 1973 (Tas), s5(3).
Bell v SPC Ltd [1989] VR 170, Marr v Green A3/1993, Woolley v Jensen A20/1995, Neil v Nott and Another (1994) 121 ALR 148, considered.
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, applied.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Appellant:  A R McKee
             Respondent:  R C McKay
Solicitors:
             Appellant:  Gunson Pickard & Hann
             Respondent:  Dobson Mitchell & Allport

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  134/1998
Number of pages:  9

Serial No 134/1998
File No FCA 28/1998

GREGORY CHARLES MAYNE v VIVIAN JOHN KEMP

REASONS FOR JUDGMENT  FULL COURT

COX CJ
UNDERWOOD J
SLICER J
2 November 1998

Order of the Court

Appeal dismissed.

Serial No 134/1998
File No FCA 28/1998

GREGORY CHARLES MAYNE v VIVIAN JOHN KEMP

REASONS FOR JUDGMENT  FULL COURT

COX CJ
2 November 1998

For the reasons prepared by Slicer J which I have had the advantage of reading in draft form, I agree that this appeal ought to be dismissed.

Serial No 134/1998

File No FCA 28/1998

GREGORY CHARLES MAYNE v VIVIAN JOHN KEMP

REASONS FOR JUDGMENT  FULL COURT

UNDERWOOD J
2 November 1998

I agree with the substance of Slicer J's reasons for judgment and the order that he proposes be made.

Serial No 134/1998

File No FCA 28/1998

GREGORY CHARLES MAYNE v VIVIAN JOHN KEMP

REASONS FOR JUDGMENT  FULL COURT

SLICER J
2 November 1998

The appellant seeks review of an order refusing his application for the extension of time to permit him to commence proceedings for damages for personal injuries suffered in a motor vehicle accident.

The appellant was a passenger in a motor vehicle driven by the respondent which was involved in a single vehicle accident on 7 March 1993.  The application was filed on 15 October 1997.  The primary findings of the learned primary judge (30/1998, at 3) were:

"… that he had not previously been involved in any high speed incident which may have been responsible for the explosion type fracture observed by Dr Francis; secondly, that this fracture was indeed the result of the motor vehicle accident on 7 March 1993 and, thirdly, that this injury has produced pain and disability over and above that which the applicant had previously experienced as a consequence of earlier spinal stress or damage."

The import of the reference to the evidence of Dr Francis is that, but for his opinion, the injury observed by him in July 1997 was "consistent with a high speed severe impact in a motor vehicle accident", there was little basis for concluding that the appellant had made out a prima facie case.  As the learned primary judge observed at 3:

"Were it not for the evidence of Dr Francis, I may well have come to this conclusion, for Dr Francis convinced me that some such incident as that described by the applicant was responsible for the explosion fracture which he observed and that this injury was the likely cause of at least a significant part of the applicant's low back pain since March 1993."

The application was dismissed because of the "inexcusable and unexplained delay" in the commencement of these proceedings.

Grounds of appeal

The notice of appeal, as amended, comprises the following grounds:

"1By refusing the Originating Application, His Honour's decision was so wrong that he made an error in some unidentifiable way and the decision was not a proper exercise of his judicial discretion.

2That His Honour erred in law or in the exercise of his discretion in that:-

(A)it was not open on the evidence to find prejudice was caused to the Respondent by:

1The loss of x-ray film taken in the 1992 [sic]; and

2The perceived difficulties identifying the Applicant's pain syndrome;

(B)By failing to give any or sufficient weight to his finding of the following facts:

(a)That the Applicant was a passenger in the motor vehicle;

(b)The Applicant had not previously been involved in any high speed incident which may have been responsible for the explosive type fracture observed by Dr Francis;

(c)That the L4 fracture was indeed a result of the motor vehicle accident on 7^th March, 1993;

(d)That this injury has produced pain and disability over and above that which the Applicant had previously experienced as a consequence of earlier spinal stress or damage;

and the consequence thereof, namely that:

(i)liability was not in issue;

(ii)that there was no issue as to the cause of the L4 back injury;

(iii)that the only issue as to damages was whether the Applicant's pain and suffering was attributable to the L4 fracture or previous back injury and whether the previous back injury to L5 had been aggravated by the accident;

(iv)that the Respondent's prejudice was significantly abated by virtue of the foregoing and the fact that the Applicant would bear the onus at trial of proving on the balance of probabilities that the pre-existing injury unaffected by the accident would have prevented the Applicant from working or would in any event have caused pain and suffering.

3That His Honour erred in law or in the exercise of his discretion when dismissing the Applicant's Originating Application dated the 15^th day of October, 1997 by giving the issue of delay undue weight and pre-eminence above the other relevant considerations, those being:

(a)       a prima facie case;
(b)       a [sic] prejudice to the Respondent.

4That His Honour erred in law or in the exercise of his discretion by giving undue weight to the issue of delay occasioned by the Applicant after the expiration of the limitation period expressed in Section 4(1) of the Limitations Act, 1974.

5That His Honour erred in law or in the exercise of his discretion by giving undue weight to the issue of delay occasioned by the Applicant through his former solicitor, A W Korobacz & Co."

It is convenient to deal with grounds 3, 4 and 5 together, ground 2 as a discrete issue, and to regard ground 1 as a compilation of the specific areas of complaint.

Circumstances of delay

The accident was not reported to the police, nor was any notification given to the Motor Accidents Insurance Board until 28 November 1996.  On the day following the accident, the appellant attended a medical centre and received some medication and advice.  He returned to work some days later.  He claimed to have suffered continuing problems and volunteered for retrenchment from his employer, the Hydro Electric Commission in July 1993.  A complication to his claim was the evidence that he had a history of significant back pain pre-dating the accident by many years and had made a number of workers compensation claims during the course of his employment.

In about April 1994, the appellant returned to his employment, but, because of ongoing pain, consulted Dr Graeme Scarr, who suggested that the appellant seek legal advice.  He failed to do so until 2 December 1995, when he saw a solicitor at the Legal Aid Commission.  The information he provided could best be described as imprecise and included a statement that he believed the accident occurred in 1992.  On the basis of that inaccurate information, the advice provided by the solicitor, that the appellant was out of time to issue a writ, was justified.  The appellant was remiss in providing financial particulars to the Commission, and he was advised in late-January that his application for legal assistance had been refused.  The solicitor for the Commission, in notifying rejection, advised the appellant that if he wished to pursue his claim he should:

"… do so as soon as possible … because the accident was more than three years ago [and] you are technically barred from making a claim for compensation unless you get special permission from the court.  An application for that permission should be made without delay."

Despite this advice, little of consequence occurred.  The appellant sought further legal advice on 30 January 1996, a further application for legal assistance was granted, and, in late-March, after a conversation with the respondent, he informed his solicitor that he believed that the date of the accident might have been April 1993.  It was not until November 1996 that an application was made to the Motor Accidents Insurance Board for benefits.  In April 1997, the file was transferred to another solicitor, who quickly ascertained the date of the accident, notified the Board and arranged for a medical examination to be conducted by Dr Francis.  Following receipt of a report from Dr Francis, which suggested a nexus between a motor vehicle accident and the condition of the appellant, a writ was filed on 1 September, and this application made on 15 October.  Whilst no criticism can be had of the reasons for delay between April and October 1997, caused as it was by the necessity for the obtaining of evidence and its presentation, that delay compounded the earlier delay.  There was significant delay between the date of the accident and the first approach for legal advice.  There was unexplained and inordinate delay between February 1996 and April 1997.  Four years had elapsed since the accident before instructions were given to the new solicitor and despite due diligence by that solicitor, a further five months was required before this application would be properly made.

It is incorrect to say that there was no prejudice to the respondent.  A concession by a party that there is no special prejudice occasioned by delay ought not be regarded as proof that there is no prejudice.  The ordinary problems of obtaining and assessing evidence, the taking of witness statements, the use of experts (especially medical) in order to attest the basis of the claim and access to original documentation and records are always significant.  Failure to identify prejudice over and above that enumerated ought not be elevated to a presumption of absence of prejudice.  In the circumstances of this case, special prejudice is claimed by the respondent.  There is an issue as to whether the present condition of the appellant derives from the motor vehicle accident, or whether it is an accumulation of a number of work-related incidents.  There remains, despite the acceptance of a prima facie case, a real issue as to whether there is a nexus (in whole or in part) between the accident and the injury.  The respondent has been inhibited in his capacity to obtain a first-hand account of the history given to and advice provided by the medical centre, details of prior injuries, the circumstances giving rise to the taking of redundancy and conflicting versions of relevant events.  He has been inhibited in his capacity to have a medical examination of the appellant conducted as soon as practicable after the accident, and, significantly, there no longer exists an opportunity to examine the x-ray films taken in 1992, a matter which the learned primary judge considered might well have had "an important bearing on the issue".  It could not be said that in the exercise of his discretion, his Honour placed undue weight on the issue of prejudice, likewise, with respect to the delay between February 1996 and April 1997.  There was no satisfactory explanation for the delay and some responsibility for that delay must be attributed to the appellant.  This was not a case where the party held a belief that the limitation period had not expired because of incorrect advice provided by a solicitor, nor that the delay could be wholly explained by the inaction of the legal advisers (Woolley v Jensen A20/1995).  The responsibility of a party in the prosecution of his or her case does not simply cease with the giving of a general vague account to a solicitor.  The appellant was made aware that there was a need for urgent action, and even if there was negligence on the part of the solicitor, the failure of the appellant to direct his solicitor to advance the action or provide adequate explanation for delay is a significant factor.

The appellant carried the onus of persuading the Court that it ought to exercise a discretion in his favour.  As Toohey and Gummow JJ stated in Brisbane South Regional Health Authority v Taylor (1996 - 1997) 186 CLR 541 at 547:

"The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour.  There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion.  But the ultimate onus of satisfying the court that time should be extended remains on the applicant."

In the present case, the respondent raised the issue of prejudice, and, although he called no evidence, there was, on the appellant's case, sufficient material to show that the effluxion of time had affected the capacity of the respondent to examine and, if necessary, contest the case against him.  In relation to the issue of prejudice, the appropriate test is that stated by Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793, a test statement endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd and Others (1966) QSR 465, and the High Court in Brisbane South Regional Health Authority (supra) at 547, that:

"'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"

This is an appeal from an exercise of judicial discretion (House v R (1936) 55 CLR 499), and it is for the appellant to show that the exercise miscarried. He has not shown that the learned primary judge gave undue weight to prejudice or failed to consider the delay by reference to the expiration of the limitation period. As Toohey and Gummow JJ pointed out in Brisbane South Regional Health Authority (supra) at 548 - 549:

"It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired."

This statement of principle would appear to resolve contrary views considered by the Victorian Full Court in Bell v SPC Ltd [1989] VR 170, concerning the question whether the relevant period of any delay is to be determined as and from the expiration of the limitation period and accords with the view expressed by Wright J in Marr v Green (A3/1993) in the following terms at 5:

"It was submitted to us that the delay requiring consideration is the totality of the delay which has occurred since the accrual of the cause of action and is not simply that delay which has taken place since the time limit of three years expired.  This is a view which has found favour on previous occasions in Tasmanian decisions and is not one from which I would dissent."

Greater significance might attach to any post-limitation delay, but it remains the totality of the delay and its effect which requires consideration.

Grounds 3, 4 and 5 of the notice of appeal have not been made out.

Evidence

Ground 2 of the notice of appeal claims error in that certain findings were not open on the evidence, or that the learned primary judge failed to give any or sufficient weight to certain facts.  The learned primary judge gave effect to the opinion of Dr Francis in deciding that the appellant had made out a prima facie case.  It does not follow that his acceptance placed the issue beyond doubt as claimed in the notice of appeal.  The prior medical history of the appellant, his receipt of compensation for back related injuries, and the course of the appellant's post-accident employment and disability are self-evident materials illustrating the difficulty in obtaining a nexus between the motor vehicle accident and the claimed present condition of the appellant.  In such circumstances, it is equally self-evident that the loss of x-ray film taken shortly before the accident would have a significant bearing on the ability of the respondent to meet the claim.  The fact that the appellant was a passenger in no way affects the central issue of causation.  The finding that there was a prima facie case does not, as the notice of appeal suggests, mean that liability is not an issue, nor that there was no issue "as to the cause of the L4 back injury".  The opinion of Dr Francis could be subject to challenge, and, in any event, depended on the accuracy of the history provided by the appellant that he had never been previously involved in a similar event.  This was not a case where an extension of time was required simply to permit an assessment of damages.  The issue is more complex than simply whether the present condition was a result of the exacerbation of a pre-existing condition.  The finding of the existence of a prima facie case ought not be elevated to a certainty in relation to the question of liability.  Those difficulties, occasioned by the delay, have prejudiced the respondent in relation to the question of liability and led to the rejection of the application.  This was not a case where the certainty of a finding of liability permitted extension.  Ground 2 ought be rejected.

Undefinable error

An appellate court might have reason to set aside an order or judgment in circumstances in which there has been no error of principle, but where the order itself is not a reasonable or fair consequence of the material before the relevant tribunal.  In their joint judgment in Neil v Nott and Another (1994) 121 ALR 148, Brennan, Deane, Toohey, Gaudron and McHugh JJ, stated at 151:

"In our view, although it is not possible to identify a particular error of principle, his Honour's exercise of discretion did miscarry.  It seems that the misconceived advocacy by Mr Neil directed his Honour's attention away from the material considerations.  Even if it was right to doubt Mr Neil's explanation for his delay in applying, the other factors to which we have referred required favourable consideration before taking the step of finally excluding him from possible participation in his wife's estate."

But in Neil, the High Court was dealing with a failed application seeking an extension of four months by the husband of the testatrix who had suffered a nervous breakdown. As the court found at 151:

"On these facts, which were not contested in the Supreme Court, it would require a substantial reason to refuse Mr Neil four months' extension of time.  Prima facie, his illness and financial state were sufficient to entitle him to a brief indulgence to allow consideration of his moral claim unless it appeared that the administration of the estate would be prejudiced by that extension of time.  No prejudice was shown:  the executors, perhaps to conserve the estate, did not appear in the Supreme Court to oppose Mr Neil's application."

In this context, unidentifiable error can be defined by reference to the conclusion reached by the tribunal.  If the facts as found can be said, on the application of correct principle, to require a particular conclusion, then a contrary determination can be said to be the consequence of an unidentified error.  But such is not the case in these proceedings.  There was no error in principle and the determination made was open on the evidence and could not be said to be without reason or foundation. Ground 1 is not sustained.

Conclusion

In my opinion, the appeal ought be dismissed.