Norris v McGeachy
[2009] TASSC 110
•16 December 2009
[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 in the middle of the left of two lanes for traffic leaving the city. He was staggering a bit and she thought he may have been drunk and could be run over. He was wearing a white shirt. She continued to a shop in Wellington Street and drove back over Paterson Bridge, heading for Riverside. She said that she was driving in fifth gear at about 60 – 65 kph in the left of the two outgoing lanes. She had rounded the bend [to the left and just past the bridge] and was on a flat section [prior to Forest Road]. She was conscious of another car behind her. She was looking ahead with her lights on low beam, with a good view ahead and a clear road. The next thing she remembered was something white hitting the left side of her windscreen and she realised that she had hit a pedestrian. She braked hard to a standstill and it occurred to her that it must have been the male she had seen earlier. She said that as she was driving she had thought no more of that male.
A statement was made by Jesse Harvie. He said that at about 3.40am he was driving north along the West Tamar Highway about 100 metres behind the Mitsubishi and in the left lane at a speed of about 70 kph. He saw the Mitsubishi brake and moved into the right lane. Then he saw something white rolling on the road and realised that it was it a person.
Sarah Bartlett knew the plaintiff and his girlfriend. She was in the city in the early hours of that morning when she saw the plaintiff pushing his girlfriend over in the course of an argument. She told him to go home. She described him as firey and fuming, and evidencing that he had been drinking. The time was about 3.15am. About 20 minutes later, Ms Bartlett was a passenger in a taxi that drove over Paterson Bridge heading for Riverside when she saw the plaintiff walking "down the rise off the bridge". She described him as being in the middle of the road, walking in a line that crossed from the right lane to the left lane, with his back to approaching traffic. He was wearing a white shirt and baggy light blue jeans. He was staggering. The taxi was in the left lane and passed him before he crossed into the left lane.
Kenneth Fitzgerald was also travelling in a taxi towards Riverside. He said he was in the front passenger seat and saw ahead a male walking in the left lane towards the line dividing it from the right lane. The cab driver slowed and moved to the right to go round the male. Mr Fitzgerald could only recall that the male was wearing jeans. He described the male as "staggering about on the road".
Taxi driver Anthony Sherriff said that as he got near the other side of the bridge he saw a male wearing a white T-shirt and black jeans on the side of the left lane and then move out to the right into that lane. He sounded the horn. The pedestrian got as far as the white line. Mr Sherriff moved from the left lane into the right lane to pass him. The pedestrian was walking in a zigzag fashion and not looking at the taxi. Mr Sherriff said that about 10 minutes earlier he had seen the same male at about the start of the bridge "doing exactly the same zigzagging as though he wanted to be hit", about halfway out into the left lane. Mr Sherriff had to slow and move into the right lane to pass him on that occasion. He said that he could clearly see the man and his white T-shirt in the headlights. Finally Mr Sherriff described the man as "deliberate in the way he walked out into the lane on both occasions as though he wanted to get hit".
A statement was made by Sergeant Michael Davis, an accident investigation officer. He said that the accident happened on a straight, clear and open section of West Tamar Road about 300 metres past the bend last rounded by the defendant's vehicle. Sergeant Davis calculated the speed of the vehicle at between 55 and 66 kph. The speed limit was 70 kph. The initial impact on the Mitsubishi by the pedestrian was with the bonnet above the front left headlight, 40 centimetres in from the left front corner. The vehicle was in good condition. Measurements taken by Sergeant Davis indicate that the vehicle and the pedestrian were both in the left lane at the moment of impact.
The plaintiff suffered multiple fractures including a fractured skull requiring acrylic reconstruction and facial injuries requiring a nasal reconstruction. Other injuries included damage to the right optical nerve, a blood clot behind the left knee and severe tissue damage in the area of the right hip. He was hospitalised for about two months. A recent neuropsychological assessment suggests that as a result of the accident he has mild impairment of the majority of executive functions (basic planning and organisation, logical thinking, mental arithmetic, verbal abstract reasoning) and multiple task processing. He demonstrates moderate to severe (borderline to extremely low) impairments in the areas of attention to detail (with a tendency to make errors), working memory, processing speed, more complex learning and delayed recall. The impairments would have an impact on his employment prospects.
The plaintiff's 2005 decision not to sue
Eight months after the accident, the plaintiff consulted a legal practitioner, John Pedder, who was employed by Archer Bushby, a Launceston legal firm. Affidavits of both the plaintiff and Mr Pedder are in evidence, as is Archer Bushby's file. Both the plaintiff and Mr Pedder were cross-examined.
I do not understand Mr Pedder to have any worthwhile memory of acting for the plaintiff. He answered questions about events that occurred when he was acting for the plaintiff, but my understanding is that his answers were based on what the contents of the file told him.
The plaintiff has a memory of some of what occurred when Mr Pedder was acting for him. However, some of his evidence conflicted with what was recorded in the file and I gained the strong impression that he was reconstructing and at times gave answers merely because they suited his case. Where there was a conflict between his evidence and the file, I accept what is stated in the file. I have no reason to doubt its accuracy.
The plaintiff's evidence was that he saw Mr Pedder for legal advice about options that were open to him as a consequence of the accident.
His only attendance on Mr Pedder was on 21 July 2005. It lasted 50 minutes. Mr Pedder made a brief handwritten record of the attendance. The record was followed by a more comprehensive printed record, comments of Mr Pedder and notes of what he thought should be done by him and by the plaintiff. Among other things, it stated that liability was going to be very much an issue, that the plaintiff said he had consumed 12 beers over a five to six hour period before the accident and that at the time of the accident he was walking from the left to the right side of a dual carriageway.
Under a heading of personal injuries, the record included that the plaintiff suffered a significant head injury and had endured four operations. There were resulting scars. An injury to a knee caused pain and he was unable to kneel on the knee. For about two to three months prior to the accident he worked as a barman at the Country Club Casino and on the day before he saw Mr Pedder, the Casino gave him the job back on a casual basis for about 25 hours per week. Until then he had a medical certificate for light duties for 10 to 15 hours per week. He intended to seek another certificate. After about 3½ months in hospital, he had spent about three months in a rehabilitation facility, during which time he learned to walk again.
Under the heading "Homework for the Client", Mr Pedder recorded that the plaintiff was to provide him with an outline in chronological order of the treatment he had received and how he was affected by pain, suffering and inability to carry out recreational pursuits.[2] Mr Pedder noted that there had been a breakdown of a relationship between the plaintiff and a woman due to stresses on the plaintiff, who said he suffered depressive episodes. He had lost his flat and had moved in with his sister.
[2] The "homework" was never provided.
Under the heading "To do", Mr Pedder noted that he should write to the Motor Accidents Insurance Board advising his involvement and asking for a copy of claim documents, write to police for an accident report and have someone find out from the Bureau of Meteorology what time sunrise was on the morning of the accident.
Contained on the file is an authority dated 21 July 2005, and signed by the plaintiff, authorising the Board to release to his solicitors any information they requested. Also on the file are three unaddressed authorities bearing the same date, also signed by the plaintiff, authorising the release to his solicitors of whatever medical information they requested.
On 25 July 2005, Mr Pedder wrote to police for copies of witnesses statements and reports concerning the accident, with a cheque for $38.50 for the necessary fee. He also wrote to the plaintiff advising what he had done and explaining that the material would assist in advising him in relation to issues of contributory negligence. He foreshadowed it was likely that the Board's solicitors would raise contributory negligence to limit its liability in relation to a claim. He advised that upon receipt of the material from the police he would contact the plaintiff to discuss the matter. He enclosed with the letter what appears to be the firm's standard three-page letter containing the terms of the plaintiff's retainer. He asked the plaintiff to sign and return the letter of retainer a soon as possible, together with $200 on account of costs. No such payment was made at any time and it seems that the letter of retainer was not signed or returned. It is not on the file.
On the same day, Mr Pedder also wrote to the Board asking for release of the plaintiff's "No Fault Documentation" together with a list of scheduled benefits paid to or for his benefit. On 26 July the Board advised that it had instructed the legal firm Dobson Mitchell & Allport to act for it and requested that all future correspondence be directed to that firm.
On 28 July, Dobson Mitchell & Allport wrote to Mr Pedder advising that they had been instructed by the Board and were authorised to accept service of any proceedings issued by the plaintiff. On 1 August, they wrote again requesting that the plaintiff provide a signed authority for the inspection of his medical records at the Royal Hobart Hospital. On 3 August, Mr Pedder wrote to the plaintiff with several forms of authorities authorising the inspection of hospital records, requesting that he complete and return them as soon as possible.
On 11 August, police forwarded to Mr Pedder a copy of witnesses statements and an accident report. On 15 September, Mr Pedder sent copies of the material to the plaintiff and sought his instructions to contact the witness Sarah Bartlett to obtain from her a proof of evidence as to the circumstances surrounding the accident. There is no record of a response from the plaintiff, nor of an attendance on Ms Bartlett, except in the firm's final tax invoice to the plaintiff in which a charge was made for a 20 minute attendance on Ms Bartlett on 20 October 2005.
On 21 September, Mr Pedder wrote to the plaintiff again seeking instructions in response to his letter of 15 September and advising that the Board's legal practitioners had indicated that liability was very much in issue but also indicated that they were instructed to confer to determine whether or not the matter could be resolved expeditiously. Mr Pedder asked whether the plaintiff was content for him to speak to them along those lines. He also forwarded an authority for him to sign and return in order for medical records to be obtained from the Launceston General Hospital. On 26 September a message was sent from the plaintiff to Mr Pedder authorising him to speak to the Board's lawyers "to try and sort something out or resolve the matter".
The file records that on an unspecified date the Board's legal practitioner spoke to Mr Pedder advising that he was thinking of 40 percent for contributory negligence, that the Board had paid scheduled benefits to date of $156,152.51 and that applying that to an assessment of damages he thought that the result would be "negative" against the plaintiff. He made a without prejudice offer to settle for $5000. Mr Pedder undertook to think about the offer and talk to the plaintiff.
On 2 November 2005, Mr Pedder sent a letter of advice to the plaintiff. He explained that the offer of $5000 had been made and that settlement on that basis would preclude the plaintiff from making any further claim from the Board for medical expenses or loss of income under the no fault scheme. Effectively, if the plaintiff was to accept the offer, he would be required to sign a deed of release by which he accepted the money in full and final settlement of all claims against the Board.
Mr Pedder explained that it was clear from the accident report and the plaintiff's own statement to Mr Pedder, that the plaintiff was under the influence of alcohol and wandered out into the middle of the road without due regard to his own safety. Mr Pedder said that his research into case law concerning pedestrian accidents disclosed that the propensity of courts was to attribute 40 percent of responsibility for an accident to the pedestrian. He referred to an unnamed case in which such an apportionment of responsibility was attributed to an inebriated pedestrian who had stepped onto a roadway into the path of a motor vehicle.[3] Mr Pedder explained that a 40 percent apportionment for contributory negligence would not necessarily be made in the plaintiff's case, but said that he was simply pointing out that courts took the view that pedestrians who had been consuming alcohol, and who put themselves at risk, faced a reduction in their overall damages of up to 40 percent.
[3] Notes on the file indicate that the case was Direen v Coad [2005] TASSC 21. It was unsuccessfully appealed. Direen v Coad [2005] TASSC 122.
Having explained that to that date the Board had paid $150,650.81 for the plaintiff's medical expenses and $5501.70 for loss of salary benefits, a total of $156,142.51 by way of scheduled benefits, Mr Pedder gave the following advice to the plaintiff in the final four paragraphs of the letter:
"Pursuant to the Motor Accidents (Liabilities & Compensation) Act if a matter proceeds to trial and an award of damages is made and a finding of contributory negligence is made against a plaintiff any amount paid by the MAIB by way of Scheduled Benefits, in your case $156,152.00, is deducted from the overall sum awarded. By way of example in your case, if you were awarded $60,000.00 by way of general damages and a further award for future medical expenses and loss of capacity to earn was made at approximately $155,940.00 the overall damages payable to you would be $215,940.00. If by way of example, a finding of 40% contributory negligence was made against you the sum of $86,376.00 would be taken off that award of damages leaving $129,564.00 from this amount would be deducted the amount already paid by the MAIB of $156,152.00 this would then produce a negative sum of your owing the MAIB $26,588.00. Applying the same. calculations, if for example, a finding was made against you of 30% contributory negligence this would produce again a negative result of $4,994.00. In the event that a finding of contributory negligence was made against you of 25 % then on the same figures it would produce a positive result of $5,803.00.
The figures that we have used in these examples are only by way of example. Before we could proceed further with your matter we would need to obtain comprehensive medical evidence to substantiate claims such as those used and determine whether or not your capacity to earn an income has been adversely affected by your injuries. We would also need to ascertain as to whether or not future medical treatment will be required. All of this in order to produce a figure which, as we have noted above, would need to be well in excess of the sum already paid by the MAIB of $156,152.00.
Further, we would point out that the sum of $5,000.00, which has been offered to settle your claim, would preclude you from claiming any further benefits from the MAIB should future surgery be required or future treatment be required by you in relation to your injury. Pursuant to the Motor Accidents (Liabilities & Compensation) Act you still at present may claim the cost of medical expenses, from the MAIB, without any legal action being initiated, as those are incurred. You would be aware that there is a limit placed on the amount the MAIB will pay. You have approximately $49,000.00 left on that limit. We point out that you cannot ask for that money to be paid to you but, should you require further surgery or other medical procedures this is claimable by you from the Board. Should it be required you may still claim upon the MAIB for loss of salary or wages, as these are paid by the MAIB upon production of a medical certificate for a period of 2 years following the motor accident. It may be therefore, that you may decide upon considering this letter not to proceed with any damages claim against the MAIB. However, should you wish to discuss the contents of this letter in further detail please do not hesitate to contact the writer.
In any event, we would appreciate your advice as to whether you wish to proceed with this matter and obtain further medical evidence or consider the Board's offer."
Two basic errors are contained in the first of those paragraphs. The first error was that the calculations omitted to include in the damages the total of $156,152 already paid by the Board in the form of scheduled benefits, before deducting the same sum following reduction of the damages by 40 percent, 30 percent or 25 percent. Without the error, using Mr Pedder's basic figures for scheduled benefits, general damages and future medical expenses and loss of capacity to earn, the overall damages, before reduction for contributory negligence, should have been stated as $372,092 and not $215,940 as in the letter. After a reduction of 40 percent for contributory negligence, the damages would have been reduced to $223,255 and after deducting from that the amount paid by way of scheduled benefits, the plaintiff would have gained $67,103. He would not have been left owing $26,588 as stated in the letter. If contributory negligence was 30 percent, the net gain for the plaintiff would have been $104,312 and not an amount owing to the Board of $4994, as stated in the letter. If contributory negligence was assessed at 25 percent, the net result would have been a gain for the plaintiff amounting to $122,917 and not $5803 as stated in the letter.
The other basic error was the statement of the possibility that the plaintiff might finish up owing money to the Board if the amount of scheduled benefits that had been paid exceeded the net amount of damages after application of a percentage for contributory negligence. Such a result was not a legal possibility. The Motor Accidents (Liabilities and Compensation) Act 1973, s27(1), only requires damages to be reduced by the amount of scheduled benefits paid.
A record was made by Mr Pedder's secretary of a telephone call received from the plaintiff on 4 November 2005. It stated that he was calling in relation to the letter of advice. He said that he did not want to speak to Mr Pedder personally. He asked to know what costs he had incurred to date and was told approximately $350. He asked what would happen if he did not accept the offer but proceeded on the matter, what would happen concerning costs. The secretary told him that they could try to negotiate payment of costs. He asked what would happen with the costs if he just did not accept the offer. He was told that he would be liable to pay the firm's costs. He then asked whether "Centrelink and the debt collections" would have first claim on settlement monies. The secretary told him that the firm would write to Centrelink and Medicare to find out how much was owing to them and whatever it was would be taken out of the settlement money and he would receive a cheque for the balance. He said that if he had any other queries he would telephone again.
The secretary recorded another telephone conversation with him later the same day. He said that he had been considering Mr Pedder's letter all morning and had discussed it with his parents. He had decided to reject the offer of $5000, not issue proceedings, have further medical assessments done and leave open the option of claiming further medical expenses by way of scheduled benefits. He commented that he might incur a lot more by way of medical expenses in the future. He said that he would send Mr Pedder a letter and would like to thank him tremendously for all the work he had done. He added that he would come into the office and start paying for Mr Pedder's costs.
In evidence the plaintiff confirmed that he decided to reject the offer of $5000 because he needed the security of scheduled benefits in case medical expenses had to be incurred in the future as a result of his injuries. However, he denied that he made a decision at that time not to commence legal proceedings for damages. I do not accept his denial in view of what Mr Pedder's secretary recorded him saying on 4 November. (As will be seen, it was recorded as being repeated on 30 November 2005 and Mr Pedder confirmed his understanding to that effect in a letter to the plaintiff of 2 December 2005 and a letter to the Board's legal practitioners of 27 January 2006.) I find that the plaintiff made a decision not to sue.
It is impossible for me to be confident about all of his reasons, but I do not doubt that the incorrect figures in Mr Pedder's letter of advice, and the incorrect indication that if he sued he might well be found liable to pay an amount to the Board, played a significant role in the factors that influenced him. I add that he should have been advised clearly, but was not, that it was possible that he might recover a substantial sum of money by way of damages if medical assessments revealed a significant disability, a substantial need for medical treatment in the future or a substantial impairment of his capacity to earn income. The plaintiff communicated enough to Mr Pedder and his secretary to warrant advice that encouraged him to take the matter further, at least by having medico‑legal assessments.
I do not accept the submission of the defendant's counsel that I should find that the plaintiff decided not to commence proceedings as early as August 2005. The evidence does not justify such a finding.
In the course of that second telephone conversation on 4 November, the plaintiff said that he was living with his parents and not working as a result of a breakdown. His body could not cope with working long hours and he was also having trouble making decisions on his own. He had been told by a Hobart hospital the previous week that he needed further assessments and maybe further surgery. He had to see a surgeon for assessment and also a rehabilitation specialist. Screws and a plate were coming loose and he was also having trouble with his knee. He had lost 40 to 50 percent of the sight in an eye. He was currently suffering depression and was told by a doctor in Hobart that he needed a psychiatric assessment and might need to be medicated for the depression.
Mr Pedder did not immediately act on the instruction to reject the offer. He first wanted instructions from the plaintiff in writing. On 29 November 2005, his secretary spoke to the plaintiff by telephone and told him that. The plaintiff said again that he would provide written instructions. On the following day, the secretary made telephone contact with the plaintiff again and said that Mr Pedder wanted brief instructions over the telephone but still required written instructions. The plaintiff confirmed what he had said on 4 November that he wanted to reject the offer made by the Board, not issue proceedings and leave open as an option the claiming of further medical expenses. He said that he was going to Hobart on 9 December for a neurological appointment and to have more tests done and said that if he had to pay for all that, it would cost him thousands, which he could not afford. He added that if the Board came back with an increased offer he would like to be contacted. He said that he would provide written instructions.
On 2 December 2005, Mr Pedder wrote to the plaintiff noting his instructions that he did not wish to proceed with the claim for damages but wished to remain in receipt of scheduled benefits. He asked the plaintiff to confirm his instructions in writing. He also sent to the plaintiff an account for $653.18 for professional fees and disbursements.
Meanwhile, the Board's legal practitioners were pressing for a response to the offer. On 27 January 2006, Mr Pedder wrote saying that he had been instructed that the plaintiff did not wish to pursue a damages claim in relation to the accident. As a result, the Board instructed its practitioners to close their file, which they did on 31 January 2006.
On 6 March 2006, Mr Pedder spoke to the plaintiff about payment of Archer Bushby's account. It was the first time the two had spoken to each other since the original attendance on 21 July 2005. The plaintiff said that he would need to pay it gradually and would come in on the following Wednesday to commence payments. He was spoken to again on 27 June 2006 about the outstanding account and promised to pay something the following week. No payment was made and in 2007 the account was placed with a collection service for recovery. In March that year the collection service advised that judgment had been obtained and a garnishee issued, but subsequently reported that the plaintiff had left his employment. Eventually, in March 2008, the firm made a decision to write off the debt.
The plaintiff's knowledge of time limits
I accept Mr Pedder's evidence that he was aware of the relevant time limits for a proceeding for damages for personal injuries. It was also his evidence that he had a practice of advising a client about the time limits at the first interview, although in a little over three years at Archer Bushby there were probably only about eight personal injury clients to whom he needed to give that advice. I have no reason to doubt his evidence.
I find it is probable that he told the plaintiff about the time limits in accordance with that practice, notwithstanding that he made no note of doing so, which was not his practice, he said. I also find it is probable that the plaintiff had been given brochures issued by the Board which advised that strict time limits applied to the making of claims for damages for personal injuries.
It was the plaintiff's affidavit evidence that he knew in general terms that there were time limits but maintained that he was not aware that the primary limit was three years. When cross-examined he said that he first found out about time limits when he consulted his current legal practitioner in August 2008, which was outside the primary three year limitation period. Upon being pressed about that, he conceded that he knew in general terms in 2005 that there were time limits. He said that he knew that because his parents said there probably would be time limits and added that he thought he would probably get five years or so. I did not believe much of what he said about those matters. It was unconvincing evidence.
On the balance of probabilities, I find that Mr Pedder told the plaintiff that there was a basic three year limitation period at the first attendance on 21 July 2005. As it was only about eight months after the accident, the significance of the information might not have been great in his mind and he may have forgotten that there was a primary limitation period of precisely three years over the next two or three years.
The explanation for the delay after 2005
No explanation has been given by the plaintiff for the delay between his decision in late 2005 not to commence proceedings and his first consultation with his current legal practitioner on 25 August 2008.
From a certificate of scheduled benefits paid by the Board, it does not appear that he had significant medical or associated treatment or assessment consequent upon his injuries after the end of 2005. The only payments that appear to have been made for such treatment or assessment in that time were payments to Dr Mark Slatyer on 14 January 2006 and 22 March 2006. The next payment, again to Dr Slatyer, was not until 19 August 2008.
No explanation was given for the delay between when the plaintiff instructed his current legal practitioner and the filing of the application to extend time on 4 May 2009.
The question of prejudice
It is now five years since the accident. No doubt the memories of witnesses have dimmed because of the passage of time. There was evidence that Jesse Harvie, the driver of the vehicle that was following the defendant and the only independent eye witness to it, cannot be located despite efforts made on behalf of the defence. I summarised the material parts of his statement to the police in par6 of these reasons. His statement was a brief one. It is possible that if he was available, and if he could remember as much as he is likely to have done shortly following the accident, he could give more detail than is contained in the statement. Whether it would favour the plaintiff or the defendant cannot be ascertained.
Account should also be taken of the possibility that the defendant has suffered from indeterminable prejudice. Prejudice may exist without the parties or anybody else realising that it exists. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551. "What has been forgotten can rarely be shown." Barker v Wingo (1972) 407 US 514 at 532.
Determination of the application
An applicant for an extension of time bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably. Brisbane South Regional Health Authority v Taylor. It is a discretion whether to grant, not a discretion whether to refuse. Toohey and Gummow JJ at 547.
At 553 – 554, McHugh J, with whom Dawson J agreed, said:
"A limitation provision is the general rule; an extension provision is the exception to it. ... The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
At 552 – 553 McHugh J explained that there are four broad rationales for the enactment of limitation periods. They are that as time goes by, relevant evidence is likely to be lost; that it is oppressive to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and that the public interest requires that disputes be settled as quickly as possible.
The plaintiff has failed to discharge the onus. I am satisfied that the justice of the case requires that the application be refused for a number of reasons. They are:
1He was made aware of the time limits in July 2005.
2He made a conscious decision not to sue and on 4 November 2005 he communicated that decision to his legal practitioner.
3On 27 January 2006, his legal practitioner formally advised the legal practitioner for the Board, which stood in the shoes of the defendant, that he had decided not to pursue a damages claim. The Board's legal practitioner then closed his file.
4I infer that relying on that advice, nothing further was done by the Board or its legal practitioner to investigate or consider the plaintiff's common law claim until after his new legal practitioner wrote to the Board's legal practitioner on 15 September 2008 giving notice that there would be an investigation into "a potential common law claim for damages". By that time, the primary limitation period had expired about 10 months' earlier.
5No explanation has been given by the plaintiff for the passage of time that elapsed between instructing his legal practitioner on 4 November 2005 that he would not sue and consulting another legal practitioner nearly three years' later, notwithstanding that he was aware of time limits.
6Although of little weight in all the circumstances of the case, no explanation was given for the delay between first instructing his new legal practitioner on 25 August 2008 and making the application to extend time on 5 March 2009.
7There is a possibility that the defendant has suffered prejudice because the witness, Jesse Harvie, cannot be located, and other indeterminable prejudice because of the passage of time.
I have taken into account that the plaintiff's decision on 4 November 2005 that he would not sue was influenced by incorrect and inadequate advice from his legal practitioner. The apparent blamelessness of the plaintiff at that time, and the responsibility of the practitioner at that time, are material considerations. Hall v Nominal Defendant (1966) 117 CLR 423 at 425. However, the Court must do justice between the plaintiff and the defendant. Because of the communication of the decision not to sue, the plaintiff's awareness of time limits, the long delay that followed before advising the Board's legal practitioner that a claim was being considered again, the failure to explain that delay, the unexplained delay that followed until the application was filed, and the possibility of prejudice to the defendant, I have concluded that it would not be just, as between the parties, to grant the application.
3
5
0