Prudzinski v Vicinity Centres PM Pty Ltd
[2019] VCC 1854
•15 November 2019
Of
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-05543
| TERESA PRUDZINSKI | Plaintiff |
| v | |
| VICINITY CENTRES PM PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2019 | |
DATE OF JUDGMENT: | 15 November 2019 | |
CASE MAY BE CITED AS: | Prudzinski v Vicinity Centres PM Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1854 | |
REASONS FOR JUDGMENT
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Catchwords: Limitation of Actions Act 1958 – Division 3 – s27K and s27L – three-year limitation period – occurrence of accident involving personal injury in 2011 – proceedings ultimately issued in 2017 – mistaken belief of plaintiff as to duration of limitation period – belief that, for personal injury actions, the limitation period was six years – ignorance of amendment of Act and halving of limitation period as at November 2002 – advice from solicitor as to a six-year limitation period given some years prior to amendment of Act – notification to defendant of occurrence of accident shortly after it occurred – absence of any notable specific prejudice pursuant to s27L – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Ms J Cowen | Moray & Agnew Lawyers |
HIS HONOUR:
1 This matter comes before me by way of an application pursuant to s27K of the Limitations of Actions Act 1958 (hereinafter referred to as “the Act”). Reference will be made to at least some of the circumstances referred to in s27L of the Act.
2 No oral evidence was received. However, an affidavit of the plaintiff sworn 11 July 2019 and an affidavit of her husband, Graham Alexander Collard, sworn 11 July 2019 were placed in evidence. There were various exhibits, including photographs, to these affidavits. In addition, there was an affidavit of Allanah Goodwin, the solicitor with the conduct of the plaintiff’s file, sworn 22 July 2019. On behalf of the defendant, an affidavit of Mr John Wicherley, solicitor for the defendant, of 22 October 2019 was placed in evidence. There are a number of exhibits to that affidavit. An Amended Statement of Claim of 13 August 2019 and a Defence of 28 August 2019 were put before me. The plaintiff’s interrogatories for the examination of the defendant and the answers thereto were also put before me. In addition, counsel made concise, but very helpful, submissions.
3 Mr C Harrison QC with Mr E Makowski of Counsel appeared on behalf of the plaintiff. Ms J Cowen of Counsel appeared on behalf of the defendant. My attention was drawn to various aspects of the affidavits, the exhibits, the interrogatories and the answers. I shall now summarise the evidence, a considerable part of which is not contentious, for the purposes of this application.
(1) Factual background
4 This judgment is based upon the material put before me for the purposes of this application.
(a) Non-contentious matters
5 The plaintiff was born in September 1951 and is 68 years of age. At the relevant time, the defendant was the occupier and manager of common areas of the Chadstone Shopping Centre and had the day-to-day operation of them. For the purposes of the present application, there is no argument but that on 7 May 2011 the plaintiff was lawfully on the premises and was walking through the Lower Ground Level towards the exit of a car park. She walked past a pillar and came into collision with a machine which was a height/weight measurement device. As a result of that collision, she fell. It is asserted by the plaintiff that the device was obscured by the pillar. The device in question was placed in position by an entity called Ward Logistics and was so placed with the agreement of the defendant. What occurred on 7 May 2011 shall hereinafter be referred to as “the accident”.
6 As a result of the accident, the plaintiff alleges injury to both shoulders, and particularly to the left, it requiring surgery, as well as other injuries, both physical and mental, of a general nature. It is not suggested that any of the injuries alleged to have been suffered by the plaintiff affected her powers of comprehension or played any role in her delay in issuing proceedings.
7 There is also no argument but that the ownership of the machine resided in Ward Logistics and that the proprietor of that entity was Mr Perry Ward. For the purposes of the present application, the plaintiff does not dispute that, some years ago, Mr Ward became seriously ill and died. Thereafter, a person by the name of “Craig”, believed to have been the son-in-law of Mr Ward, took over the tasks of cleaning, servicing and emptying money from the machines. They were removed from Chadstone Shopping Centre in 2016.
(2) The timetable of events and the applicable legislation
8 As stated, the accident occurred on 7 May 2011. The applicable limitation period is one of three years – see s27D(1)(a) of the Act. There is no argument but that, prior to 5 November 2002, the limitation period in respect of personal injuries had been six years.
9 I accept that, within a comparatively short time of the accident occurring, there was a flurry of activity by and on behalf of the plaintiff. The plaintiff was hospitalised until approximately 17 May 2011, but whilst she was still in hospital her husband contacted the defendant in order to advise of the accident and the injury. The plaintiff’s son took photographs and made video footage of the area where she fell. He in fact attended twice, once on his own and once with the plaintiff’s husband. He also noted that, approximately one or two weeks following the plaintiff’s fall, the machine had been moved. The plaintiff’s husband requested the release of any CCTV footage, but the defendant would not release this without some order from Victoria Police. On 19 May 2011, the plaintiff’s husband wrote to the management of the defendant, having left a message on 13 May 2011. In that letter, he set out details of the accident, including informing the defendant that the plaintiff had fractured her left shoulder and had torn tendons and muscles. He recounted that he had asked whether any further information or written report was to be prepared and had been advised that the reporting of the incident by telephone was all that was required and that there was nothing further for him to do. He also set out some details of his request for a copy of surveillance footage.
10 In setting out her reasons for the delay in seeking legal advice in her affidavit of 11 July 2019, the plaintiff has referred to the very considerable amount of medical attention which she received, particularly in the period immediately after the accident. She has sworn to her belief that her condition would improve. She also had other health problems, including concerns relating to possible breast cancer. Further, she was visiting her parents, who were in care and experiencing difficulties. In addition, her son was involved in several work-related accidents and suffered a number of injuries between November 2011 and November 2016. Her older brother had cardiac problems, culminating in bypass surgery in early 2016.
11 A factor of particular significance is that the plaintiff had previously engaged a lawyer named Mr Robert Murphy in relation to some contractual matters, debt collection and a professional negligence matter. Discussions with Mr Murphy took place in 1998. Apparently he suicided in that same year. Mr Murphy also asked the plaintiff to obtain some material for him from the Monash Law Library. The plaintiff and her husband have sworn that they can recall Mr Murphy telling them that a six year limitation period applied for contractual claims and negligence claims. Accordingly, the plaintiff formed the belief that a six year limitation period applied and that it would expire on 7 May 2017.
12 When the plaintiff’s condition did not improve, she had some discussions with her husband about bringing a claim. As the expiry of the six year period approached, the plaintiff’s husband encouraged her to contact lawyers. Ultimately he contacted several firms, speaking to the plaintiff’s present solicitors on 21 April 2017. It was at this time that he was told that the limitation period was actually three years – see, for example, the affidavit of Ms Goodwin. This was the first time that the plaintiff had been made aware of the three-year limitation period. She gathered some documents together and visited the offices of Arnold Thomas & Becker, whom she had engaged, on 8 May 2017. On 14 May, she instructed them to file a generally endorsed writ and this seems to have been issued on 16 May 2017. The plaintiff has sworn that the first time that she had received advice regarding the prospects of successfully suing the defendant were when she engaged that firm.
13 It is against that background, much of which is either accepted or not disputed, that counsel made their submissions. I now turn to a summary of such submissions. I shall deal with them in the order in which they were made.
(3) The submissions on behalf of the plaintiff
14 Mr Harrison and Mr Makowski presented written submissions on behalf of the plaintiff, with Mr Harrison speaking to them. In addition, Mr Harrison, who had a copy of the defendant’s written submissions, outlined them, indicating those concerning which there was agreement and those which raised areas of dispute. I will deal firstly with a summary of the oral and written submissions on behalf of the plaintiff, before turning to the comments of Mr Harrison in relation to the defendant’s written submissions.
15 Firstly, the statement of the now deceased solicitor, Mr Murphy, in 1998 as to the limitation period for negligence actions being six years was accurate at the time. This was before the Ipp Report (which was published on 30 September 2002) and the adoption of changes recommended in it. The end result was the reduction of the limitation period in respect of personal injuries from six years to three years, this becoming operative on 5 November 2002. It is apparent from the affidavit of Ms Goodwin that it was in a telephone conversation with the plaintiff’s husband on 21 April 2017 that she advised him that the limitation period was three years. She has sworn that he was surprised when so told, and stated that he had believed that his wife had six years in which to commence a claim.
16 The ultimate question is whether it is just and reasonable to extend the limitation period, having regard to all the circumstances of the case, including, but not limited to, the matters set out in the relevant provisions of the Act. The Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all – see, for example, Edwards v Kennedy [2009] VSC 74 and Tsiadis v Patterson (2001) 4 VR 114. The plaintiff bears the burden of persuading the Court that it is just and reasonable to extend the limitation period. The plaintiff must establish that there is evidence available which gives her a reasonable prospect of establishing the cause of action – see Wintle v Stevedoring Industry Finance Committee & Ors [2002] VSC 265.
17 Essentially the question to be considered is whether there is prejudice to the defendant that is so significant as to outweigh any legitimate claim by the plaintiff and make imposition of the claim unjust and unreasonable. Mere delay, when inordinate, may be taken as evidence of prejudice to a defendant absent any identification of specific prejudice.
18 Reference is made to the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Prince Alfred College Incorporated v ADC [2016] HCA 37. It is pointed out that the present case is not one of very lengthy delay and some of the observations made in the High Court cases are not applicable.
19 Prejudice to a defendant, whether presumed simply by reason of elapse of time or whether it is the subject of specific material, is not the only matter which is to be taken into account in considering the exercise of a discretion under s27K. The question raised by s27K(2)(b) is whether it is just and reasonable to extend time, and that involves a consideration of s27L(1) and the having of regard to all the circumstances of the case – see Tsiadis and other cases. The relevant period of delay is calculated from the date on which the cause of action accrued – see Repco v Scardamaglio [1996] 1 VR 7. In the present case, the issue of responsibility of solicitors does not arise. The late Mr Murphy gave advice in a different context and was not retained. Once the plaintiff had instructed solicitors and obtained advice, the matter proceeded with alacrity.
20 Attention is then directed to the criteria set out in the Act. In the particular circumstances of the present case, the date that the cause of action was discoverable (s27F) is not relevant. The matters listed in s27L(1) are then to be considered. The first of these is the length and the reasons for the delay on the part of the plaintiff. These, including the reliance on the advice of the late Mr Murphy, are set out in the affidavit material.
21 In relation to s27L(1)(b), it is submitted that there is not, and there is not likely to be, any prejudice to the defendant. The death of Mr Ward, the owner of the machine, does not adversely affect the defendant’s position. This is not a case where the plaintiff is claiming that, for example, she got on to the machine, which was faulty, or that she injured herself for some reason as a result of a defect in the machine which should have been remedied. This is a case about the position of the machine on the defendant’s property. It will be alleged that the machine was shielded by a pillar and could not be seen from the direction in which the plaintiff was approaching. That is the central issue. The defendant’s answers to interrogatories assert that the machine was plainly visible. The particulars of contributory negligence alleged in the Defence include reference to such matters as a failure by the plaintiff to keep a proper lookout, walking into the machine, failing to have proper regard to her surroundings, failing to watch where she was going and the like. The case is all about whether or not the machine was hidden and whether it was reasonable for the plaintiff to not see it until she fell over it. Thus, the central issue is the location of the machine, an issue concerning which the defendant as landlord had an overriding discretion. Whether it was subsequently moved would be an issue relevant to what should have been done beforehand. It is also pointed out that the defendant has an incident report and information has been procured relevant to all the matters which would enable it to defend the case. The defendant has suffered no specific prejudice. Any general prejudice which it has suffered should be balanced against the prejudice to the plaintiff if she cannot pursue her litigation.
22 Section 27L(1)(c) is not particularly relevant. In relation to s(1)(d), the plaintiff’s ongoing health problems concerning which she has sworn are relevant. In relation to (e), the plaintiff had the requisite degree of knowledge shortly after the accident. As regards (f), the plaintiff has at all times acted with appropriate promptness and has accepted the advice of her solicitors. The situation that has arisen is not attributable to any fault on her part.
23 Mr Harrison then spoke concerning the written submissions on behalf of the defendant which had been provided by Ms Cowen, grouping some of these and highlighting propositions with which the plaintiff agreed and others which were contested. Mr Harrison then effectively spoke to the written submissions on behalf of the defendant. This was a very helpful way of clarifying what was agreed or conceded and what was in dispute. I turn, now, to the points which he made.
24 It is agreed that the plaintiff bears the onus, but all the plaintiff need establish is that she has an arguable case. The Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all – see Tsiadis. In Edwards, the competing considerations were grouped into four categories, namely the length of the delay; the reasons for the delay, including the factors set out in s27L(1)(a), (c), (e), (f) and (g); the extent to which there has been prejudice to the defendant – see s27L(2); and the nature and extent of the plaintiff’s loss, along with the nature of the conduct alleged against the defendants – see s27L(2)(b) and (c).
25 Essentially the plaintiff agrees with the list of key dates set out in paragraph 4 of the defendant’s written submissions, save that it submits that a key date which has not been included is that in 1998 the solicitor, Mr Murphy, gave advice, in general terms, that the limitation period in respect of negligence claims was six years.
26 The plaintiff takes issue with what is contained in paragraph 9 of the defendant’s written submissions to the effect that the plaintiff’s misapprehension as to the time limit cannot be used as justification for the delay. It is correct that the legal advice of Mr Murphy was given to her over 12 years prior to the incident and was provided in a different context. The change of the limitation period for personal injury claims was not something that was the subject of great publicity. Essentially it was a matter of relevance only to a particular group of lawyers. It was quite reasonable for the plaintiff, who is an accountant, to rely upon advice that had been given to her by a professional in another discipline. In the context of her ongoing health and other issues, there is nothing unreasonable about her failure to ascertain that the time limit had been altered.
27 The proposition that the number of stressors which the plaintiff has had in her life over the last few years is not unlike the ordinary stressors that many other litigants would face is contested. True it is that the plaintiff was well aware of the injuries which she had suffered and her husband had taken active steps shortly after the accident in order to determine the circumstances. However, once the plaintiff found out that she and her husband were wrong as to the limitation period, she acted swiftly. It is correct that no prior steps were taken after 24 May 2011. The plaintiff hoped that she would get better and the necessity for litigation would not arise. The preliminary investigations had been made. The consequences of the plaintiff’s injury did not improve. Nothing would have been achieved by further contact with the defendant at that time. Photographs had been taken and the incident report obtained.
28 There is no evidence that the plaintiff made a deliberate decision not to pursue a cause of action, a proposition advanced in the defendant’s written submissions. The situation in Sparkes v Hylemit Pty Ltd [2016] VSC 453 deals with a different situation where a plaintiff made a deliberate decision not to pursue an application for an extension of time for a two year period. In the present case, the evidence is to the contrary. Further, it cannot be said that it is plain that the plaintiff’s claim has no prospects, or almost no prospects, of success. In the early days, the plaintiff had obtained the relevant information. Further, in the defendant’s written submissions it is argued that the letter sent by the plaintiff’s husband was not a claim for compensation, but merely notification of the incident. It is asserted that, when the defendant had not heard from the plaintiff on or after 24 May 2011, it was reasonable for the defendant to assume that no further action was required. The plaintiff asserts that the defendant was aware of there being a potential claim. It is evident that the defendant sent out security staff, spoke to potential witnesses and took photographs. This indicates that the defendant was aware that there was a very real prospect of a claim. There is no affidavit material from the defendant to the effect that an assumption had been made that no further action was required. Had that happened, it is certainly something that would have been set out in the affidavit material.
29 The defendant’s written submissions refer to what was said by McHugh J in Brisbane South Regional Health Authority in relation to the importance of limitation periods. However, there is a discretion which involves a synthesis of all considerations. Balancing those, the plaintiff should succeed in her application.
30 In the present case, the defendant refers to general prejudice due to the delay. However, it is effectively admitted that, within a very short time, there was an awareness on the part of the defendant as to what had allegedly occurred. Thereafter, there was an absence of contact, but nothing turns upon that unless something specific can be identified.
31 The defendant has also made submissions concerning the possibility of specific prejudice because of the unavailability of potential witnesses and in particular Mr Ward, who has died, and “Craig” who took over from him. It is submitted that there are likely to be considerable difficulties in locating Craig. Firstly, the likelihood of those considerable difficulties is speculation. What they are is not deposed to in the supporting affidavit. It is repeated that the potential relevance of such evidence is, in any event, extremely limited or non-existent. It is repeated that the case is about the location of the machine and not about its function and the like. The pleadings, including the particulars of contributory negligence and the interrogation, are all directed towards the location of the machine and not about its function.
32 The defendant’s submissions in relation to the plaintiff’s injuries are essentially not relevant. That becomes analogous to assessing the merits of the claim or the potential pool of damages. All the Court needs to be satisfied about is that it is a bona fide claim, not either hopeless or approaching hopeless. On behalf of the plaintiff, it is submitted that an assessment of the level of the plaintiff’s injuries is not relevant to the dispute that is presently before the Court.
(4) The submissions on behalf of the defendant
33 Given what has been said on behalf of the plaintiff in relation to identifying the issues as set out in the defendant’s written submissions, the oral submissions of Ms Cowen were somewhat abbreviated, but directed with some considerable precision to the matters that remain in dispute. She said at the outset that the parties were not at odds in relation to the applicable authorities and in relation to the approach which I should take in conducting the synthesising process.
34 Turning to the four considerations referred to in Edwards, the length of the delay between the accrual of the claim and the cause of action being initiated is nearly 8.5 years – more than double the limitation period.
35 What can be seen from the affidavit material is that there was a flurry of activity in May 2011. There were several phone calls, a letter, a visit to the defendant’s premises to take some photographs and some video. After that, from the plaintiff’s perspective, all was silence, and despite the efforts of the defendant to attempt to engage with her. There is nothing in the material to indicate why the plaintiff or her husband did not respond to a telephone call from the defendant seeking to talk to them further. In addition, the letter of the plaintiff’s husband was not a letter claiming compensation, but a letter setting out what the injury was and what the circumstances of the accident were. Thereafter, and having received no response, there was nothing further which the defendant could do.
36 The defendant had done a cursory investigation based upon the very limited information available. It had taken some photographs and spoken to people in a nearby shop. However, there was not a lot more that could be done, because the defendant knew so little about the circumstances of the accident or the injury itself. Thereafter, it heard nothing from the plaintiff until the writ was served in 2017.
37 The plaintiff is attempting to rely on some legal advice given to her in 1998 in a completely different context. Apparently such advice related to a claim against a solicitor. It was not in relation to a claim for personal injury. In essence, the plaintiff is saying that it was reasonable for her to assume some 13 years later that the information she had found out about something occurring in a completely different context was still true and applicable. The plaintiff is a professional person, being an accountant, and, as indicated in her affidavit, she has had dealings with solicitors previously. It would not have been difficult for her to access legal advice. Instead, she chose to do nothing. Ultimately, it was at the behest of her husband, at a time when they believed that the six year limitation period was close to expiring, that anything was done. Further, at some stage the plaintiff had made a deliberate decision not to do anything further about her claim. Reference is made to paragraph 21 of her affidavit in which she swore that a friend advised her that she should be looking at suing the defendant, but the plaintiff apparently responded that she was too busy trying to get well and did not want to sue. A deliberate decision not to sue creates the type of situation referred to in Sparkes. It should count against the plaintiff in her extension application and is a significant part of the balancing exercise which is to be performed.
38 In relation to general prejudice, the Court should look at the time it will take for this case ultimately to get to trial. Reference is made to Edwards. The period which should be considered is that between the date of the accident and the actual time at which the matter comes to trial. In the present case, it is unlikely that this matter will get to trial until some time in 2020. If so, it will be nine years or more since the date of the accident and the accrual of the causation.
39 Emphasis is placed upon four rationales relating to the enactment of limitation periods. Firstly, as time passes, relevant evidence may be lost. Secondly, it may be oppressive for a defendant if proceedings are brought against it long after the circumstances giving rise to it have passed. Thirdly, people should be entitled to arrange their affairs and utilise their resources on the basis claims can no longer be made against them after a certain time. Fourthly, the public interest requires that a dispute be settled or disposed of without undue delay. In Brisbane South Regional Health Authority, McHugh J went further, stating that what must be considered is that the defendant’s potential liability expired at the end of the limitation period and the extension of time would re‑impose such legal liability on it. An extension of the limitation period is an indulgence sought by a plaintiff and such plaintiff needs to be a party who provides cogent evidence that can persuade a court that it is just and reasonable for the extension to be allowed.
40 In the present case, there is also the potential for specific prejudice in relation to the death of Mr Ward. He was responsible for these machines. The responsibility for them was then taken over by his son-in-law, a man only known by the name of Craig. The contract was ultimately ended in 2016. Any business relationship has now ceased. It is likely to be difficult to find the person called Craig.
41 It is evident in the present case that the plaintiff has suffered an injury and undergone surgery. No particular or significant weight can be given to the injury. The injury is not a matter of any weight in the present case to any degree greater than it would be in any other claim.
42 The nature of the injury is not sufficient to displace the factors which weigh against the exercise of the Court’s discretion. Those factors include the length of the delay. There was an 8½ year delay in a situation where it was well known to the plaintiff, from the outset, that she had suffered an injury that put her in hospital and led to her having surgery. She then required further surgery, still within the limitation period, in February 2014. However, still nothing was done. There is a lack of adequate explanation in relation to the delay. The defendant has suffered both general prejudice and the possibility of specific prejudice as a result. In all the circumstances, it should be found that the plaintiff has not been able to persuade the Court that it is just and reasonable that the limitation period be extended.
(5) The reply on behalf of the plaintiff
43 The reply by Mr Harrison on behalf of the plaintiff could be summarised as follows.
44 There is no evidence of specific prejudice to the defendant flowing from the plaintiff’s silence subsequent to the initial contact. Secondly, deliberately choosing to do nothing is not consistent with moving immediately prior to the expiry of what was thought to be the six year limitation period. The present case is a different situation from that in Sparkes, where the plaintiff chose to do nothing in the face of a written warning from his solicitor advising of the potential expiry of the limitation period.
45 In the present case, the most that could be said is that the plaintiff may have fluctuated about whether or not she intended to proceed, before ultimately deciding so to do. She moved into action very shortly prior to the expiration of what she understood to be the limitation period. The plaintiff accepts that the ultimate date to be considered is when the action will come to trial. However, that issue and the potential for general prejudice, or even specific prejudice, is substantially diminished once the writ is served. The defendant then knows that the claim is on foot. The defendant knows, from that date, what is going on. In addition, as was said in Sparkes, the defendant must prove that there is a real possibility of significant prejudice.
46 In referring to the plaintiff’s ill health, it has not been argued on her behalf that, because she has had a nasty injury, she should get a greater indulgence. There is no submission of this nature. What is required is that there be an arguable case. The severity of the injury is not a relevant consideration in terms of exercising the Court’s discretion, but this is different from it being an explanation as to why nothing was done until the end of the perceived limitation period. That is its relevance.
47 The plaintiff also agrees with the submission of the defendant that the delay ought to be counted from the date of the accrual of the cause of action and that the end point for the calculation ought to be the date of making the application for extension of time. The plaintiff also agrees that, in the present case, it matters little whether the delay is calculated from the date of accrual or the date of discoverability. The plaintiff was aware that she had sustained an injury of sufficient seriousness to require hospitalisation and surgery within days of the incident. She and her husband had formed the view that the management of the defendant was at fault in respect of the incident. It is also agreed that the plaintiff (and her husband) made little or no further factual inquiries between the letter of 19 May 2011 and the contact with Arnold, Thomas & Becker on 21 April 2017. The plaintiff agrees that the period of delay is one of approximately 8.5 years.
(6) Ruling
48 I am satisfied that the plaintiff is entitled to the relief which she seeks. She has satisfied me that the period of limitation should be extended so as to embrace the date upon which the summons was issued, namely 16 May 2017. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) The length of the delay in issuing proceedings is significant, but not dramatically so. I appreciate that it is more than twice the limitation period. However, it is not of such length as to warrant an assumption that memories will almost automatically have faded and that witnesses will be unlikely to be found. That is particularly so when the nature and circumstances of the accident are borne in mind.
(b) I agree with the submissions of Mr Harrison that the nature of the accident is comparatively simple. The plaintiff tripped and fell over a machine or apparatus that had been located behind a pillar. The workings of the machine are not relevant. The plaintiff’s case is that she fell over an object that had been positioned where it should not have been. There is some force in the submission of Mr Harrison that, for the purposes of the case, the object in question could have been, for example, a rubbish bin. The plaintiff’s case is not that there was some particular feature of the machine or its mechanism. The plaintiff’s case is that it was on the defendant’s premises in a place where it should not have been.
(c) The machine and its location were photographed by or on behalf of the plaintiff and the defendant shortly after the accident occurred. Its location has been identified. There is no suggestion that its location or positioning altered between the time of the accident and the time of the photographs. The plaintiff’s husband left a detailed message on the defendant’s telephone answering machine on 12 May 2011. On 19 May 2011, he spoke to a female staff member and informed her of the plaintiff’s accident and her injury, explaining where and how the accident occurred. To err on the side of caution, he also sent a letter to the defendant on 19 May 2011. This again set out the details of the accident, as well as a description of the injuries sustained. He also obtained a copy of the defendant’s incident report. Amongst other things, this indicated that “Security” had spoken to a staff member at a restaurant close to the pillar in question. (It can be seen in one of the photographs.) The staff member indicated that the actual incident had not been seen, but a woman who had fallen was so seen. In other words, it would appear that what had occurred was very quickly made known to the defendant; the defendant investigated the reported accident; an interview was conducted with a person in a nearby restaurant; and photographs were taken. There is no suggestion that the now deceased proprietor of the machine, Mr Ward, was in attendance or was interviewed.
(d) Given the circumstances of the accident, the information that was provided promptly, the investigations that were then carried out, the photographs that were taken, and the manner in which the plaintiff puts her case, I find it very difficult to see what prejudice, if any, has occurred as a result of the subsequent death of Mr Ward. In addition, I am not persuaded that there is any evidence that Mr Ward’s son-in-law, Craig, would be in a position to throw much light on the claim. Indeed, there is little or no evidence advanced by the defendant as to any efforts that have been made to locate him. In summary, I am not persuaded by arguments that prejudice exists either in relation to the death of Mr Ward or in regard to Craig. In short, I am not of the view that any substantial prejudice – indeed, any prejudice at all – has been demonstrated in relation to s27L(1)(b), (e) and (f).
(e) I turn now to some considerations specifically directed to the matters listed in s27L(1). In relation to s27L(1)(a), I have already made some observations concerning the length of the delay. In relation to the reasons for the delay, I am of the view that these also assist the plaintiff. I accept that for a period she was hoping for a better recovery than that which actually occurred. I also accept that she was having ongoing treatment, including surgery, in the hope of achieving some improvement. It is to be remembered that, during this time and through to 2017, she was acting under the erroneous belief that she had six years from the date of the accident in which to commence legal proceedings. I shall return to that in more detail shortly. Apart from matters involving the injuries in question during that six year period, I accept that she also had other health problems. She was having annual checks in relation to breast cancer. I accept that she had considerable psychological and emotional concerns in relation to the health of her husband’s parents. After a period of ill health, her father-in-law died on 28 March 2014. Her mother-in-law suffered a stroke in 2013, was then accommodated in a nursing home and died in September 2015. The plaintiff was closely involved in the treatment of both and particularly of her mother-in-law. Further, her son was involved in a number of workplace accidents, requiring surgery and absences from employment. There were also health problems with her older brother.
There is no challenge as to these matters. I mention them in order to demonstrate that there were many pressures and distractions upon the plaintiff. I accept that they occurred against a background of her belief that she had a six year period in which to initiate proceedings.
(f) Continuing with a consideration of s27L(1)(a), in relation to the belief of the plaintiff and her husband that a six year limitation period applied, I accept their evidence. It may be that this erroneous belief dated back to approximately 1998. However, I accept that it was a genuine belief and that it was reasonable and understandable to form it. Further, at the time that the late Mr Murphy advised that the limitation period in respect of negligence actions was six years, that was a correct statement of the law. I do not accept the submission of the defendant that the plaintiff’s misapprehension as to the time limit cannot be used as a justification for her delay. True it is that the observations of Mr Murphy were made a considerable period before the occurrence of the accident and were made in a different context. However, he was a solicitor and I accept that his statement as to the limitation period was not only correct, but also was something that remained in the memory of the plaintiff and her husband. There is also no argument but that the plaintiff made no attempt subsequently to determine whether the time limits that applied were the same as those operating in excess of 12 years earlier. However, it seems to me to be reasonable that the plaintiff and her husband, having been informed by a solicitor that the time limit in relation to negligence claims was six years, continued to believe that such was the case. Further, I do not accept the submission that, because the plaintiff is an accountant, she would have known how to access legal advice and should have done so. Whilst it would seem that, in 1998, she may have been of some assistance to Mr Murphy in relation to obtaining material concerning the claim in which she and her husband were then involved, it is another thing altogether to state that she should have accessed further legal advice in order to ascertain whether the law had changed in relation to the limitation period applicable to negligence claims. She and her husband believed that the appropriate period was six years and it is not suggested that this was anything other than an honest belief. It was a belief that had its foundation in advice given by a solicitor and was correct at the time of the advice being so given. It came as a shock to them when the plaintiff’s husband contacted Arnold Thomas & Becker, the plaintiff being aware that the “six year limit” was approaching, and was made aware of the three year limitation period. In summary, I regard this as quite a persuasive argument relating to the reasons for delay, particularly when it is combined with the other factors and occurrences to which I have referred.
(g) The matters referred to above are also applicable to s27L(1)(g). The plaintiff had been given expert advice concerning the limitation period, albeit that such advice was given some 12 years before the occurrence of the accident. However, the plaintiff believed the expert advice relating to the limitation period which had been given.
(h) I am not of the view that the decision in Sparkes particularly assists the defendant. True it is that there was a time, comparatively early on, when the plaintiff told a friend that she was too busy trying to get well and did not wish to sue. This also has to be seen in the context of a person who believed that she had six years in which to initiate proceedings. This is a quite different situation from that in Sparkes. In Sparkes, the plaintiff had been specifically advised in writing by his solicitors that he had six years in which to bring a common law claim for pain and suffering and economic loss. He was urged to contact his solicitor. The plaintiff in that case claimed that it was not until a couple of years after that letter that he became aware of the limitation period. This was accepted by J Forrest J. What was not accepted was that, after being advised of the existence of the limitation period, the plaintiff gave specific instructions to his lawyers to wait until his claim for statutory benefits was completed before issuing proceedings. J Forrest J accepted that such plaintiff had elected not to pursue his common law claim or any claim for extension of the limitation period. This resulted in a further delay of 1½ years. It was also a situation where J Forrest J found that the plaintiff had knowingly determined to delay making an application for an extension of time. Further, J Forrest J found that there had been real prejudice to the defendant by reason of the delay. He contrasted the situation to that which existed in his earlier decision of Davies v Nilsen [2015] VSC 584. He observed that, in Davies, the circumstances of the accident were fully understood, were not in issue, and bespoke negligence on the part of the defendant.
In the present case, the circumstances of the accident appear to be fully understood and do not appear to be in issue. Whether they bespeak negligence on the part of the defendant is perhaps more contentious, but they are relatively simple circumstances capable of being fully appreciated. In summary, I am not of the view that the decision in Sparkes assists the defendant. If anything, it assists the position of the plaintiff. There is no suggestion that the plaintiff, when advised of the actual limitation period, consciously decided to delay the commencement of proceedings for another quite lengthy period. The plaintiff and her solicitors moved promptly.
(i) In summary, I am of the opinion that the plaintiff has suffered little or no prejudice by reason of the delay. The principle reason for delay – namely, the mistaken belief as to the limitation period – seems to me to be a valid and reasonable one. It seems to me to be just and reasonable to order the extension of the period of limitation.
Conclusion
49 The plaintiff is successful. It is just and reasonable to order an extension of the applicable period of limitation. I shall hear the parties as to the period of extension which should be ordered and as to any further or ancillary orders that are required.
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