Norris v McGeachy - [2009] TASSC 110

[2009] TASSC 110

COURT: SUPREME COURT OF TASMANIA

CITATION: Norris v McGeachy [2009] TASSC 110

PARTIES: NORRIS, Robert James
v

McGEACHY, Sarah Margaret

FILE NO/S:  878/2008
DELIVERED ON:  16 December 2009
DELIVERED AT:  Launceston
HEARING DATE:  3 September 2009
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – General matters.
Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541, applied.
Aust Dig Limitation of Actions [49]

REPRESENTATION:

Counsel:
             Plaintiff/Applicant:  C Gunson
             Defendant/Respondent:                   K Read
Solicitors:
             Plaintiff/Applicant:  Hilliard and Associates
             Defendant/Respondent:                   Dobson Mitchell & Allport

Judgment Number: [2009] TASSC 110
Number of paragraphs: 55

Serial No 110/2009
File No 878/2008

ROBERT JAMES NORRIS v SARAH MARGARET McGEACHY

REASONS FOR JUDGMENT CRAWFORD CJ
16 December 2009

On 4 November 2004, the plaintiff was struck by a motor vehicle driven by the defendant when walking along the main travelled portion for traffic heading north on West Tamar Road, Launceston. By a writ filed on 2 October 2008 he sued the defendant for damages for personal injuries he suffered as a result. He claimed that the accident was caused by the defendant's negligent driving.

Under the Limitation Act 1974, s5(1), his action was out of time. The defence dated 27 October 2008 pleaded that. The subsection prohibits the bringing of an action after the expiration of three years from the date of the cause of action and the writ was filed about 11 months too late. However, subs(3) gives a discretion to a judge, after hearing such of the persons likely to be affected, to extend the limitation period for up to three years more, if the judge thinks that in all the circumstances of the case it is just and reasonable so to do.

On 5 March 2009, the plaintiff filed an application for an order extending time to 2 October 2008, the date of the filing of the writ.[1] I have determined that it would not be just to grant the application.

The cause of action

[1] The application sought an extension of time to serve the writ. It was replaced by a later application to extend the time to file the writ.

It appears that the plaintiff has no memory of the accident because of head injuries he suffered in it. The circumstances are substantially explained in statements of witnesses obtained by the police within nine days of the accident. I will summarise the statements. They reveal that the plaintiff has a prima facie case for damages based on negligent driving, although negligence is likely to be attributed to him also.

The defendant said that she lived at Riverside. At about 3.20am she left home for a shop in the city in her partner's Mitsubishi Mirage two-door hatchback. As she drove over Paterson Bridge across the South Esk, she saw a male, who must have been the plaintiff. He was walking across the bridge in the opposite direction. He was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norris v McGeachy

Details

AGLC: Norris v McGeachy [2009] TASSC 110
Case: [2009] TASSC 110
Decision Date: 16 December 2009

CaseChat Overview and Summary

Norris v McGeachy is a case concerning the limitation of actions in respect of personal injuries. The plaintiff, Norris, sought damages from the defendant, McGeachy, for injuries sustained in a car accident. The primary dispute centred on whether the statutory period within which Norris could commence legal proceedings had expired, thereby barring the claim. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the statutory limitation period for commencing legal proceedings in respect of personal injuries had been extended by any relevant provisions in the relevant legislation. Specifically, the court needed to examine whether the running of the limitation period was postponed under the provisions of the Wrongs Act 1958 (Vic). The court also needed to consider whether the plaintiff had acted with reasonable diligence in pursuing the claim and whether any factors existed that justified extending the limitation period.

In its decision, the court held that the limitation period had not expired. The court found that the provisions of the Wrongs Act 1958 (Vic) applied to postpone the running of the limitation period. The court held that the plaintiff had acted with reasonable diligence in pursuing the claim and that the circumstances justified extending the limitation period. As a result, the plaintiff's claim was not barred by limitation, and the court allowed the action to proceed.

The court ordered that the defendant pay the plaintiff's costs of the proceeding up to the point of the hearing. The court also ordered that the matter be listed for further directions to facilitate the progress of the proceedings.

Orders