Mayne, Gregory Charles v Kemp, Vivian John

[1998] TASSC 30

30/1998

PARTIES:  MAYNE, Gregory Charles
  v
  KEMP, Vivian John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M302/1997
DELIVERED:  7 April 1998
HEARING DATE/S:  20 March 1998
JUDGMENT OF:  Wright 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.

Limitation Act 1973 (Tas), s5(3).
Bell v SPC Ltd [1989] VR 170, Marr v Green A3/1993, Woolley v Jensen A20/1995, considered.
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, applied.
MAIB v Duc Thang Lee 67/1989, followed.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  L Howroyd
             Respondent:  R C MacKay
Solicitors:
             Applicant:  Bennett Howroyd
             Respondent:  Dobson Mitchell & Allport

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  30/1998
Number of pages:  4

Serial No 30/1998
File No M302/1997

GREGORY CHARLES MAYNE v VIVIAN JOHN KEMP

REASONS FOR JUDGMENT  WRIGHT J

7 April 1998

The applicant is a 40 year old invalid pensioner who claims to have been injured in a motor vehicle accident which occurred on the Strahan to Zeehan Road on Saturday 7 March 1993 at approximately 10pm when the motor vehicle in which he was a passenger left the road after colliding with guide posts at high speed.  At the time the applicant was employed as a trades' assistant by the Hydro-Electric Commission and was returning with his companion, the respondent, to the Commission's singlemen's quarters at Tullah.

It appears that the collision was not reported to the police, nor was it reported by the applicant to the MAIB until some years later.  The applicant, in an affidavit sworn in connection with the present proceedings, says that he experienced bad back pain immediately after the accident and reported to the Medical Centre at Tullah the following day, where, in the absence of a doctor, he was given some medication and advice by a male nurse.  He then spent several days resting before returning to work, at which time he was still suffering back pain.  He continued to experience pain and difficulty discharging his work duties, so he volunteered for retrenchment and ceased working for the Commission in about July 1993.

In his affidavit, the applicant says:

"25Before my accident I had suffered some back pain but it had not been as severe.

26Prior to my accident I had not been injured in any other motor vehicle accident."

Counsel for the respondent suggested that these disclosures were less than frank, as the applicant, by his own admission under cross-examination, had a history of significant back pain antedating the accident by many years and which had, on occasions, been the cause of the applicant making workers compensation claims during his employment.

The applicant stated that he was again employed by the Hydro-Electric Commission between March and April 1994.  He was put on to jack hammer work but found that this exacerbated his back pain.  He consulted Dr Graeme Scarr concerning his back pain in April 1994.  Dr Scarr had x-rays of the applicant's spine taken and, on seeing the exploded condition of one of the lumbar vertebra, questioned the applicant as to whether he had been involved in a motor vehicle accident.  As the oral evidence given by Dr Hilton Francis indicated, a high speed impact such as that sustained in a motor accident can produce a very distinctive form of vertebral fracture.

Dr Scarr suggested to the applicant that he should seek legal advice regarding the accident.  The applicant says that before receiving such advice he had not considered the possibility of recovering damages for his spinal injuries insofar as the same were attributable to the collision.  At all events, the applicant did not seek legal advice as Dr Scarr had suggested.

After this, the applicant returned to work, again doing heavy labouring work with the firm Southern Cross Electrical.  However, he was unable to continue for long.  He gave up work and applied for an invalid pension which was granted.

The applicant sought legal advice for the first time in relation to his claims arising from the accident when he consulted Mr L Neasey at the Legal Aid Commission on or about 2 December 1995.  At the time, he said, he could not recall the date on which the accident had occurred and told Mr Neasey he thought that it had happened at some time in 1992.  Mr Neasey then advised the applicant that if this information was correct, he may be out of time to issue a writ.  What instructions, if any, the applicant gave to Mr Neasey at that time are not clear.

Towards the end of January 1996, the applicant received a letter from Mr Neasey advising him that he had been ruled ineligible for further legal aid as he had neglected to provide information (presumably as to his financial status) which had been requested.  In the same letter, Mr Neasey urged the applicant that if he intended to pursue his claim through private solicitors, 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."

Ironically, the applicant's action would have been well within time if proceedings had been instituted at that time.

On or about 30 January 1996, the applicant consulted A W Korobacz & Co, a firm of solicitors practising at Bridgewater.  His new solicitors renewed his application for legal aid which was subsequently granted.  On or about 27 March 1996, after conversing with the respondent, the applicant, apparently having had his memory refreshed as to the date of the accident by Mr Kemp, rang his solicitors and advised Mr Korobacz that "he thought his accident" may have been in April 1993."  He also passed on the respondent's telephone number, presumably with the intent that Mr Korobacz should speak with him to check the date.  These facts were confirmed by an affidavit sworn by Alan William Korobacz and filed on the applicant's behalf.  In this affidavit details are given of inquiries and other steps taken by Mr Korobacz on the applicant's behalf.  However, a writ was not issued and, after the time for doing so expired, no application for an extension of time was made.  Making all due allowances for the applicant's vagueness and confusion as to the date of the accident, this inaction by A W Korobacz & Co was plainly negligent and has not been adequately explained, either by Mr Korobacz or the applicant.  Mr Korobacz was not cross-examined upon his affidavit.

In April 1997, Mr Korobacz referred the applicant's file to his present solicitors, Bennett Howroyd.  Mr Richard Howroyd was first consulted by the applicant on 9 April 1997.  Oddly enough, despite having revised his opinion as to the probable date of the accident as a result of speaking to the respondent in March 1996, the applicant told Mr Howroyd that "he thought that his accident was in 1992 but he did not know the month".

Within a few days of taking instructions, and after making further inquiries, Mr Howroyd ascertained that the accident had taken place on 7 March 1993.  He notified the MAIB of the accident and arranged a medical examination of the applicant by Dr Hilton Francis, a consultant rheumatologist.  Dr Francis swore an affidavit in support of the application, confirming that he had examined the applicant on 11 July 1997.  Dr Francis said (inter alia):

"While examining him I saw a CT radiological scan of Mr Mayne's back taken in April 1994 which showed a classical high speed explosion fracture.  The fracture is consistent with a high speed severe impact in a motor vehicle accident."

Dr Francis was cross-examined as to his findings and opinion but there is no reason to doubt the view which he expressed.  A good deal of doubt was thrown upon the applicant's reliability and truthfulness as a witness by admissions which he made in the witness box as to previous back injuries and false or inaccurate statements he had made on other occasions as to his medical history.  Nonetheless, I am prepared to accept, firstly, 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.

Mr Howroyd received Dr Francis' report concerning the applicant on 11 August 1997.  On 21 August 1997, he received a grant of aid from the Legal Aid Commission to pursue an application to extend time.  On 1 September 1997, a writ was filed claiming damages for personal injuries.

The present application was not filed until 15 October 1997.  Although not specifically claimed by the applicant or his solicitor, it seems likely that the time between 1 September and 15 October 1997 was spent by Mr Howroyd in obtaining sufficient instructions from the applicant and Mr Korobacz to enable their supporting affidavits to be filed.  Dr Francis' affidavit was sworn on 31 October.  It was not suggested by counsel for the respondent that there had been any significant delay thereafter which could, or should, be attributed to dilatoriness on the part of the applicant or his solicitors.

When the applicant was cross-examined upon his affidavit, I initially formed the provisional view that he was slow and vague by nature but, as the cross-examination progressed, it became apparent that he was not unintelligent and had a reasonably good vocabulary.  Further probing revealed that he had experienced many incidents of back trauma before the accident on 7 March 1993 and it seemed quite apparent that he was less than frank about these matters, both in his affidavit and during the course of his oral evidence.

Counsel for the respondent urged me to reject the present application on the basis that the applicant's evidence was so unreliable that I could not be satisfied, even to the degree necessary in proceedings of this kind, that there was a prima facie case against the respondent.  Were it not for the evidence of Dr Francis, I may well have come to this conclusion, but 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.

To succeed on an application of this kind, the applicant must also provide an acceptable explanation for his delay in instituting proceedings.  A satisfactory explanation is not necessarily one which provides justification for the delay and, insofar as the delay may be attributable to negligent or inadequate legal advice, this factor should be taken into account (MAIB v Duc Thang Lee 67/1989).  In my opinion, after giving full weight to these matters, the only reasonable conclusion which can be reached is that the applicant indulged in quite inexcusable and unexplained delay in the circumstances disclosed by the evidence.

The injury which he sustained was manifested by pain almost immediately after it occurred.  He could have easily checked as to the date of the accident when he first decided to seek legal advice, but he did not do so.  Dr Scarr suggested that he take legal advice as to the accident when he was consulted by the applicant in about March or April 1994.  He chose not to do so.  He first sought legal advice in December 1995 but failed to provide necessary information to the Legal Aid Commission.  On the basis of his erroneously asserting that the accident had occurred in 1992, rather than 1993, he had been made aware in no uncertain terms by Mr Neasey that he should act rapidly to protect his position.  True, it is, that soon after he consulted Mr Korobacz he was able to provide a more accurate date of the accident, but he was still far from sure about it.  Furthermore, although much of the blame for the delay thereafter can be laid at Mr Korobacz' door, it is the total delay which has occurred which is significant, not just that which has occurred after the expiration of the limitation period (Bell v SPC Ltd [1989] VR 170, Marr v Green A3/1993).

The totality of the delay is also important in considering the third factor which arises upon an application of this kind, viz, the existence or non-existence of prejudice to the opposing party.  It is plain that if the respondent can show the real possibility of significant prejudice, the application should fail (Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1). In addition, consideration must be given to the prospect of general prejudice which inevitably occurs with the effluxion of time.

As counsel for the respondent pointed out, there is a real difficulty for the respondent in disentangling the potential causes of the applicant's present pain syndrome.  X-rays taken in 1992, which could well have had an important bearing upon the issue, could not be brought to light, in spite of Mr Howroyd's apparently diligent inquiries.  It is now more than five years since the applicant's accident and I think there is a significant risk of prejudice to the respondent if the action is permitted to proceed. 

The onus is upon the applicant to show that the justice of the case favours the grant of an extension of time.  He has no "presumptive right" to such an extension, even if he is able to demonstrate a prima facie case, absence of prejudice and a good explanation for failure to sue within time (see Brisbane South Regional Health Authority v Taylor (supra) per McHugh J at 10).  It was not suggested by counsel for the respondent that the applicant's possible right of action against Mr Korobacz should enter into my consideration as to the exercise of my discretion (cf Woolley v Jensen A20/1995).

Some positive reason must be shown for the exercise of discretion in the applicant's favour.  I am not satisfied that such a reason exists in all the circumstances of the present case.  The application will be dismissed.