Reginald Edward May v Electricity Trust of South Australia No. 4149 Judgment No. SCGRG 91/888 Number of Pages 13 Limitation of Actions
[1993] SASC 4149
•6 September 1993
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J
CWDS
Limitation of actions - contracts, torts and personal actions and proceedings generally - Appeal against order granting extension of time to bring action - respondent claiming damages for personal injuries and loss suffered as a result of 1983 Ash Wednesday bushfire - consideration of Limitation of Actions Acts48 - respondent unaware until 1991 that appellant responsible to some degree for fire - whether this a "material fact" - appeal dismissed.
Limitations of Actions Act 1936 s48; Limitation Act 1969 (NSW) and Limitation Act 1936 (UK). Sola Optical Australia Pty Ltd in Mills (1987) 163 CLR 628; Lovett v Le Gall (1975) 10 SASR 479 and Napolitano v Coyle (1977) 15 SASR 559, applied. Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234, discussed.
HRNG ADELAIDE, 23 August 1993 #DATE 6:9:1993
Counsel for appellant: Mr R White
Solicitors for appellant: Mouldens
Counsel for respondent: Mr A Besanko
Solicitors for respondent: Piper Alderman
ORDER
Appeal dismissed.
JUDGE1 OLSSON J This is an appeal from an order made by a Master, disposing of a preliminary issue arising in this action. 2. On 16 April 1991 the respondent issued a summons against the appellant claiming damages for personal injuries and loss suffered as a consequence of the 1983 Ash Wednesday bushfires in the Adelaide Hills. The claim is brought in negligence, nuisance, breach of statutory duty and the rule in Rylands v Fletcher. 3. The summons was endorsed with an application for an extension of time pursuant to section 48 of the Limitation of Actions Act ("the Act"). 4. That aspect of the proceedings came on for hearing before a Master as a preliminary issue. Having heard oral evidence led in support of it, the Master granted the extension sought. He published written reasons encapsulating his findings of fact and the conclusions to which he came. 5. It should be said at the outset that, in the main, the findings of narrative fact made by the Master are not now under challenge. What is primarily in contention is the proper characterisation of them for the purposes of the Act. 6. The key narrative facts found by the Master may be summarised as under:-
. As at 16 February 1983, the respondent, his wife and his
19 year old son resided at premises situated at 16 Yarrabee Road,
Greenhill ("the premises").
. On that day the respondent's house erected on the premises
was destroyed by a bushfire. His wife was incinerated in the
house.
. Prior to 16 February 1983 the respondent had, on several
occasions, received warnings to prepare to evacuate the premises,
due to a threat of bushfire. However nothing further had
eventuated.
. On that day the family received a message telling them to
evacuate, or get ready to evacuate. However, because of past
experience, they did not treat it very seriously.
. The bushfire suddenly materialised in the form of a fire
ball. The respondent and his son ran to the car in panic to
drive away. The former thought that his wife was also doing so.
As the two of them got into the vehicle they realised that she
was not with them. By that time such was the intensity of the
fire that it was impossible for the respondent to get back into
the house. All that he and his son could do was to flee the
scene to save their own lives.
. The respondent was not able to get back to the premises for
some time. He and his son stayed with relations overnight. It
was not until the following day that it was confirmed that his
wife had perished in the fire.
. The respondent's house was gutted by the fire. With the aid
of insurance moneys and moneys received from Bushfire Appeals, he
rebuilt it. He lived elsewhere for eight or nine months.
. The fire and its sequelae ultimately had a profound effect
upon the respondent. He consulted Professor McFarlane, a
specialist psychiatrist on a series of occasions commencing in
May 1984. He was haunted by memories of Ash Wednesday and
suffered serious guilt manifestations in relation to his wife's
death. His psychiatric problems developed and worsened over
time.
. Ultimately the respondent found himself unable to continue
to reside at the premises. After living there with his current
wife for some 18 months, they moved first to Aberfoyle Park and
then, in 1987, to Alice Springs.
. Prior to going to Alice Springs the respondent had met a Mrs
Jarrett through his son.
. After moving to Alice Springs the respondent's wife opened
an art and craft shop. That business continued for about two
years, but was not successful.
. Having moved to Alice Springs the respondent and his wife
occasionally visited Adelaide. When they did so they normally
stayed with Mrs Jarrett. On one such occasion the possibility of
bringing a claim for damages against the appellant was raised.
By resorting to a process of reconstruction this must have been
shortly prior to 24 May 1990. It was Mrs Jarrett's evidence
that, being aware of the anguish brought to the respondent by any
memory of the bushfire, that topic was not discussed, until the
moment seemed appropriate at dinner one evening. Mrs Jarrett
informed him of the possibility of bringing a claim against the
appellant and, in effect, urged him to see a solicitor.
. As a consequence of that discussion Mrs Jarrett contacted Mr
Phelps of Piper Alderman the next morning and the respondent
thereafter had an interview with him on 24 May 1990. What is
clear from the evidence is that, during the course of the
interview, whatever else may have been said, the notes made at
the time reveal that the respondent told Mr Phelps that he did
not know that he could recover damages at that time and "never
knew he could bring an action".
. Mr Phelps gave the respondent certain information and
tendered some advice to him. He at once arranged for the
respondent to be re-examined by Professor McFarlane and handed a
so-called "damages questionnaire" to Mrs May. The respondent
returned to Alice Springs shortly thereafter. The Master
described what happened thereafter in these terms:-
"Approximately 11 months later, the proceedings in this ,
action were issued. In explanation of the delay, Mr. Phelps
advised that it was usual for him to await confirmation of
various facts before issuing the proceedings. One of the
matters, which would have to be confirmed, obviously, was the
medical situation. The report of Professor McFarlane is dated
12th December, 1990. That obviously accounts for a substantial
part of the delay. Thereafter, prior to the issue of the
proceedings, there was correspondence between Piper Alderman and
the Legal Services Commission and with Mr. Worthington QC. I do
not have any detail, however, as the contents of this
correspondence. It is also agreed that the first reference, by
the plaintiff's solicitors to the defendant of this claim, was
made in a computer list, which was produced to me in March 1991,
at a general callover of bushfire matters. The first actual
confirmation of the claim to the defendant was on 7th May, 1991." 7. In his reasons for decision the Master recited that the section 48 application was founded upon an assertion that facts material to his claim were first ascertained by him within twelve months of the date of commencement of the action and that, in the circumstances, it was just that an extension of time be granted. 8. The material facts expressly relied upon in the statement of claim were stated to be:-
"(a) On the 11th day of May, 1990 the plaintiff was advised
by a family friend, Mrs. Phil Jarrett of;
(i) The possibility of prosecuting a claim against the
defendant for personal injury and property damage sustained in
the Ash Wednesday 1983 bushfire; and
(ii) The plaintiff should pursue a claim for property damage
against the defendant. On the same day or very shortly
thereafter the plaintiff contacted Messrs Piper Alderman and
arranged to speak to Mr. A.K. Phelps of that firm.
(b) On the 24th day of May, 1990 the plaintiff was informed by
Mr. A.K. Phelps of the offices of Messrs Piper Alderman that
the State Coroner, Mr. K.B Ahern, had issued a written report
dated 20th July 1984, in which he had found, inter alia, that the
said fire in all likelihood was caused by the clouting or lashing
of overhead electricity and conductors owned and maintained by the
defendant at Chapman Crescent, Glen Osmond aforesaid.
(c) On the 24th day of May, 1990 the plaintiff was informed by
Mr. A.K. Phelps of the offices of Messrs Piper Alderman the
Coroner in his said report had found the fire referred to in
paragraph (b) hereof had commenced at Chapman Crescent, Mount
Osmond on the 16th day of February, 1983 and spread to the
plaintiff's property and surrounding areas." 9. Having reviewed the evidence led before him, the Master had no hesitation in finding that all of those alleged facts had been established, given that what was said by Mr Phelps to the respondent may not necessarily have been an accurate resume of the actual findings of the Coroner. 10. Section 48 of the Act, so far as material for present purposes, confers a general power on the court, in any case in which a statute limits the time for instituting an action, to extend the time for so doing, subject to the provisions set out in that section. By subsection (3) it stipulates that:-
"(3) This section does not -
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time prescribed
by this Act unless it is satisfied -
(i) that facts material to the plaintiff's case were not
ascertained by him until some point in time occurring within
twelve months before the expiration of the period of limitation
or occurring after the expiration of that period and that the
action was instituted within twelve months after the
ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff's failure to institute the action
within the period of the limitation resulted from representations
or conduct of the defendant, or a person whom the plaintiff
reasonably believed to be acting on behalf of the defendant, and
was reasonable in view of those representations or that conduct
and any other relevant circumstances, and that in all the
circumstances of the case it is just to grant the extension of
time." 11. It was the view of the Master that the facts relied on by the respondent were, in the relevant sense, facts material to his case and that the test postulated by subsection (3) had been satisfied. 12. He proceeded to examine the various factors relevant to the exercise by him of his discretion. Having listed the relevant considerations he went on to say:-
"In the present action, there is a claim both for personal,
injuries including solatium and a claim for property loss. The
limitation period in respect of the first claim would, therefore,
have expired in February 1986. The period in respect of the
second claim would have expired in February 1989. The personal
injuries claim was, therefore, instituted a little over five
years after the expiration of the statutory period and the
property claim something over two years. The periods involved
are, therefore, quite substantial and one would need to find
significant justification from the other factors, in order to
exercise the discretion in favour of the plaintiff.
The material facts were ascertained in May 1990, and it was
some 11 months later that the proceedings were issued. Again,
that period of time, in itself, is substantial. A significant
portion of that time, however, can be justified by the awaiting
of the report from Professor McFarlane, in order to determine
whether or not the plaintiff has a medical condition caused or
aggravated by the bushfire. The delay thereafter is not
particularly great. Whilst I do not have any direct evidence, it
is possible, by reading between the lines, to obtain an
explanation, which is quite reasonable. All in all, although the
period is substantial, unless there is some reason why this has
significantly affected other matters which I must consider, I do
not consider that this should prevent me from exercising my
discretion in favour of the plaintiff. The next question, as to
the reasons for not commencing the proceedings within the
statutory limit, is one which I have little difficulty in
deciding in favour of the plaintiff. The circumstances, of the
plaintiff's involvement in the fire and its immediate
consequences, are the sort of circumstances one encounters in
horror movies. It is not surprising that this had a very
significant and long lasting emotional effect on the plaintiff.
That it had such an effect, medically, is confirmed by Professor
McFarlane. For my own part, having seen the plaintiff in the
witness box, I am satisfied that it continues to have a very
significant effect. Part of the condition, from which the
plaintiff suffers, is an avoidance of anything to do with the
fire and a consideration of it. To get away from the effect of
the consideration of such matters, the plaintiff moved out of his
reconstructed home, not long after it was completed. Because of
persisting problems, he moved out of the State. The explanation,
for not having commenced proceedings within the statutory limit,
is understandable and acceptable. In relation to prejudice
sustained by the defendant, Mr. White called no evidence. He
did, however, make submissions on the subject, about matters
which are obvious. Nothing was heard of this claim by the
defendant until March 1991 and formal notification was not
received until 7th May, 1991. Mr. White pointed out that,
unlike Workers Compensation or road traffic actions, where a
potential defendant is put on notice at an early stage, the
defendant in this action had no such notice. The defendant,
therefore, is disadvantaged, because there are no contemporaneous
medical examinations and no opportunity to investigate the
background circumstances of the plaintiff, both medically and
factually. Mr. White suggested that the difficulties were
compounded in the present case, by the fact that Mr. May has a
very poor memory. Mr. White described Mr. May as being 'an
unreliable historian' and, in support of this, referred to what I
have described as 'the inconsistencies' of the plaintiff.
In relation to the property damage claim, Mr. White pointed out
that, even now, over ten years after the fire, the plaintiff has
not provided particulars of the claim. Mr. White contended that
the prejudice is obvious. The longer period of time which
elapses, the more difficult it will be for the defendant to check
any claim made by Mr. May. The plaintiff was asked, in May
1990, to provide these particulars to his solicitors and has not
done so. Although it seems that the questionnaire was given to
his wife, it is nevertheless the plaintiff's personal
responsibility to see that those particulars are provided.
Because no particulars have yet been provided, it is difficult,
in a sense, to evaluate the extent of the prejudice to the
defendant. The matter must be considered, however, in the
context that the plaintiff's house and presumably, therefore,
most of the records and evidence of property were destroyed in
the fire. Also the plaintiff carries the onus of establishing
the loss. It will be equally difficult for him to prove his loss
after this length of time. Mr. White did not put any detailed
submission in relation to prejudice in respect of the plaintiff's
personal injury claim. It is clear, however, that he did not see
treatment from Professor McFarlane at the Flinders Medical
Centre. The records will be available for consideration by any
medical practitioner nominated by the defendant. In any event,
the comprehensive report of Professor McFarlane, which was
tendered before me, gives a good background to the plaintiff's
claim. Against this, I must weight the prejudice to the
plaintiff, if I do not grant the extension. The obvious
prejudice is that the plaintiff will not be able to pursue his
claim for damages. Professor McFarlane describes substantial and
significant psychiatric injury resulting from the fire. From a
factual point of view, also, clearly the plaintiff has had to
make substantial modifications to his life, in an attempt to
overcome the effects of the fire. It is quite conceivable that
this has resulted in a significant economic detriment to him.
The nature and extent of the material facts, again, mainly speaks
for itself. On the basis of these facts, the plaintiff considers
that he has a good and justifiable basis for a cause of action
against E.T.S.A., in respect of his loss and damage. The
circumstances, in which the facts were ascertained could almost
be described as accidental. Clearly the plaintiff himself, had
not endeavoured to ascertain whether he had a basis for a claim.
The medical condition, which caused him to want to avoid
consideration of such matters, would be a sound basis to make
such a statement. Finally, the conduct of the parties must be
considered. Mr. White suggested that the failure to provide
particulars of the property claim, even to this date, and the
claim for privilege, which was made in respect of the plaintiff's
solicitors file at the hearing before me, should be matters that
I should consider adversely to the plaintiff. Dealing with the
matters in the reverse order, I very much doubt whether, the
plaintiff himself, is aware as to the position taken, with regard
to claim for privilege in respect of the file. So far as the
claim for property loss is concerned, it is certainly a matter
which should count against the plaintiff. Having said that,
however, one has to understand the very significant and far
reaching effect that discussion, or consideration, of matters
relating to, or arising from, the bushfire have on the plaintiff.
Taken overall I do not feel that I should take any adverse
inference from the plaintiff's conduct. So far as the
defendant's conduct is concerned, there is nothing to influence
me one way or the other." 13. I have recited those conclusions in extenso because they serve to illustrate the care with which the Master went about his task. 14. It was his ultimate conclusion that he ought to exercise his discretion in favour of the respondent. He ordered that there be "an extension of time to bring this action nunc pro tunc to 16 April 1991". 15. The appellant now seeks to challenge the propriety of that decision. The grounds expressed in its notice of appeal are:-
"1. The Learned Judge erred in finding that the plaintiff
had within the twelve months prior to instituting the action
ascertained a fact or facts material to his case for the purposes
of Section 48 of the Limitation of Actions act 1936 (as amended).
2. The Learned Judge erred in finding that the plaintiff
learning from the witness Jarrett of the possibility of
prosecuting a claim against the defendant for personal injury and
property damage sustained in the Ash Wednesday 1983 Bushfires
constituted a material fact for the purposes of Section 48 of the
Limitation of Actions Act 1936 (as amended).
3. The Learned Judge erred in finding that the plaintiff
learning what his solicitor Mr. Phelps erroneously believed was
the effect of the Coroner's findings, constituted a material fact
for the purposes of Section 48 of the Limitation of Actions Act
1936 (as amended).
4. The Learned Judge erred in finding that the plaintiff had
learned the alleged or any material fact for the purposes of
Section 48 of the Limitation of Actions Act during the course of
an interview with his solicitors on th 24th day of May, 1990.
5. The Learned Judge erred in failing to take into account
that what the plaintiff was informed by Mr. Phelps at the
interview on the 24th day of May, 1990 was an erroneous account
of the Coroner's findings.
6. The Learned Judge erred in failing to take into account the
inconsistencies between the plaintiff's evidence and the evidence
of Mr. Phelps given from his notes of the interview on the 24th
day of May, 1990." 16. The first major issue raised by Mr White, of counsel for the appellant, on the hearing of this appeal, was that what the respondent learnt from Mrs Jarrett for the first time (and was later confirmed by Mr Phelps) was that he might well have a cause of action against the appellant - a possibility that he had not earlier appreciated. This was, Mr White submitted, simply not capable of constituting, and did not constitute, a material fact in the sense contemplated by the statute. In advancing that proposition he sought to rely upon the decisions of the High Court in Sola Optical Australia Pty Ltd v Mills
(1987) 163 CLR 628 at 636 and Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234. 17. In the former case the judges of the High Court spelt out the proper conceptual approach to issues arising under subsection (3) of section 48. Mr White quite properly took this as his commencement point. 18. He directed attention to the oft quoted dictum from the joint judgment of the High Court to the effect that:-
"A fact is material to the plaintiff's case if it is
both relevant to the issues to be proved if the plaintiff is to
succeed in obtaining an award of damages sufficient to justify
bringing the action and is of sufficient importance to be likely
to have a bearing on the case. The Shorter Oxford English
Dictionary defines the word 'material', inter alia, to mean 'Of
such significance as to be likely to influence the determination
of a case'. Although a definition attributed to the sixteenth
century, in our opinion it provides an apt guide to the intention
of the legislature in choosing to refer, without any elaboration,
to 'facts material to the plaintiff's case'." 19. He then went on to rely heavily upon the reasoning of the High Court in the latter case - in which it was held that, for the purposes of the Limitation Act, 1969 (NSW), ignorance of the existence of a cause of action was not, of itself, sufficient to satisfy the pre-condition for exercising a discretion to extend time. As Wilson J expressed the situation:-
"The concept of a 'cause of action' would seem to be clear.
It is simply the fact or combination of facts which gives rise to
a right to sue. In an action for negligence, it consists of the
wrongful act or omission and the consequent damage: cf. Cooke v
Gill; Read v Brown; Trower and Sons Ltd v Ripstein; Board of
Trade v Cayzer, Irvine and Co Ltd; Shtitz v C.N.R.; Williams v
Milotin. Knowledge of the legal implications of the known facts
is not an additional fact which forms part of a cause of action.
Indeed, a person may be well appraised of all of the facts which
need to be proved to establish a cause of action but for want of
taking legal advice may not know that those facts give rise to a
right to relief." 20. He then went on to make the point that the statute then under consideration expressly related the exercise of discretion to the coming to the knowledge of the plaintiff of "material facts of a decisive character relating to the cause of action" - phraseology which "draws a clear distinction between facts and the legal consequences of those facts". So it was that the Court held that advice given as to the existence of a cause of action was not a material fact "and therefore knowledge of the legal consequences of material facts is not intended to be itself knowledge of a material fact". As Deane J elsewhere succinctly expressed the concept "The ignorance of a material fact to which those sections refer is, in my view, ignorance of factual matter in the ordinary sense and not ignorance either of the law itself or of the legal consequences of material facts". 21. As readily emerges from a perusal of the relevant section of the New South Wales statute, it is couched in terms quite different from the section here under consideration. In express terms it relates the material facts to "the cause of action" and, in specifically, draws a clear distinction between material facts "of a decisive character" on the one hand and the cause of action on the other. In my opinion the reasoning in Do Carmo v Ford Excavations Pty Ltd was very much the product of the quite differently expressed legislation there under consideration. It is simply not directly relevant or applicable to the South Australian statute, save to the extent that the distinction drawn by Deane J, as above cited, would, with respect, appear to be of general validity. 22. The constrast between the two statutes is, potentially, of critical importance. It should be stressed that, in Sola Optical Australia Pty Ltd v Mills (supra), in contrasting the South Australian statute with the Limitation Act, 1936 (UK), the Judges of the High Court emphasised that the latter statute was pre-occupied with material facts which both related to a cause of action and also satisfied very specific, exhaustive criteria arising from a statutory definition of "material facts" of "a decisive character" which were limited to:-
"... any one or more of
(a) the fact that personal injuries resulted from the
negligence constituting the cause of action,
(b) the nature or extent of the personal injuries resulting
from the negligence, and
(c) the fact that or the extent to which the personal injuries
or any of them were attributable to the negligence.
Material facts relating to a cause of action were to be taken
to have been 'facts of a decisive character' if a reasonable
person, knowing them and having obtained appropriate 13 advice
about them, would have regarded them as determining that an
action would have a reasonable prospect of success resulting in
an award of damages sufficient to justify bringing the action." 23. The High Court pointed out that, when one considers the South Australian legislation:-
"... The subject-matter of par.(i) is facts which are
material to the plaintiff's case, with no attempt to provide any
definition of the categories to which such facts must conform.
The reference to the plaintiff's case supplies a broader canvas
than the reference in the 1963 Act to the cause of action.
Unlike the 1963 Act, there is no requirement that the material
facts be of a decisive character, no reference to constructive
knowledge, no obligation to have used due diligence in seeking to
discover at an earlier time the facts in question and no mention
of seeking appropriate advice." 24. So it was that, in the Sola Optical case, it was held that the existence of a specialist medical report expressing an opinion as to the effect of disabilities in terms of a per centage loss of function of an arm, which had previously been unknown to the plaintiff, was a material fact of the type contemplated by the section. 25. It is clear that the former reasoning of the Full Court of this court in Lovett v Le Gall (1975) 10 SASR 479 was held, generally, to be correct. The Full Court there accepted the proposition that "facts material to the plaintiff's case" was not restricted to the facts necessary for the formulation of the plaintiff's cause of action, but included any fact which was of such significance as to be able to influence the determination of the case. It was said:-
"When we withdraw our exclusive concentration from the
pleader's chambers and look at the wider context involved in the
concept of the plaintiff's case as it will appear at the trial, I
think the phrase takes in the whole complex of evidence and
argument which will be advanced at the trial on his behalf. This
is what we normally mean when we talk about putting, or
submitting or analysing, or considering the case of a litigant.
In such a context the word 'material' appears, in my view, in its
true significance for our purposes. In Bessela v Stern (1886) 2
CPD 265 the Court of Appeal had to consider the words of the
English statute 32 and 33 Vict c68, s2, which provided that no
plaintiff in a breach of promise action could recover 'unless his
or her testimony shall be corroborated by some other material
evidence in support of such promise'. The evidence in question
was the evidence of the plaintiff's sister who deposed to words
spoken by the defendant to her in her presence, words which did
not directly admit the promise but from which the existence of a
promise might be inferred. Cockburn LCJ said at p.271: 'The
evidence given in corroboration need not go to the length of
establishing the contract: if the evidence support the promise it
is enough'. The phrase 'facts material to the plaintiff's case'
is, of course, wider than the phrase 'material evidence', but I
point to the contrast in the words cited above between matter
essential for the desired conclusion and matter merely tending to
support it. Matter of the latter kind if of real significance
is, in my view, 'material' within the meaning of s.48. Indeed,
materiality is a familiar concept in the law of evidence and in
the definition of certain crimes, such as perjury, and in the law
relating to insurance and in other contexts. It does not in
those contexts mean necessary or essential for the purpose in
hand. I need not repeat in detail all the additional
considerations in favour of the conclusion I have reached which
were mentioned by the learned Judge. Like him I attach
significance to the fact that at the time s.48 was enacted in
1972 there was in existence in England a statute (Limitation Act
1963, ss.1 and 7) which dealt with the problem of extending under
appropriate conditions the rigid time limits of the former law,
and that statute is framed in a very different fashion. The
phrase used there was 'that the material facts relating to that
cause of action were or included facts of a decisive character
which were at all times outside the knowledge (actual or
constructive) of the plaintiff until a date which .. (here the
periods are specified)', and the statute goes on to define what
is meant by material facts. The draftsman of the South
Australian Act rejected this model. He left the phrase 'facts
material to the plaintiff's case' to speak for itself and he did
not insist on their decisive character." 26. The decision in Lovett v Le Gall was followed by that in Napolitano v Coyle (1977) 15 SASR 559. In the course of his judgment in the latter case Bray CJ commented:-
"... it is the ascertainment of fact which is required, not
the ascertainment of opinion. I do not think that the receipt of
advice from counsel that the party has a good 15 cause of action
could be regarded as the ascertainment of a material fact for the
purpose of s48, but it is not necessary to decide that now." 27. With respect, it seems to me that this view is plainly correct, provided that it is properly understood and applied. The learned Chief Justice was there speaking in literal terms. A bare receipt of advice as to whether or not an action lies, on the basis of facts already known, will patently not be a material fact. 28. However, some care needs to be taken in characterisation of a particular situation. If what is in contemplation is advice not only that a cause of action exists, but also that it exists because the relevant tort was apparently the consequence of the physical activity of a specific alleged tortfeasor (that fact not previously being known by the potential plaintiff), then there may well be a material fact within the advice, to which section 48 of the Act applies. 29. In the instant case I construe the evidence of the respondent before the Master as indicating that, following the fire, his insurance and appeal moneys covered his physical loss; and that he did not really give any thought to potential liability, of the nature of that now in issue, for a considerable time after the accident. He did, at some stage, become aware that a coronial enquiry was being or was to be conducted, but did not focus upon its eventual outcome. It seems obvious that this may well have been the product of his serious developing psychiatric problems. 30. When Mrs Jarrett spoke to the respondent in May 1990 she really conveyed to him, albeit in a single statement, what were, in reality, two quite significant items of intelligence, which he then comprehended for the first time. The first was that he may well have a claim for damages. The second was that such claim might lie against the appellant - obviously because of the probability that it was its actions which may well have given rise to the fire. 31. True it is that she did not go into any detail as to what it was that ETSA had done, in the terms which I have stated. However, the clear implication could only have been that the respondent then learnt, for the first time, that he could probably sue ETSA because of something which it had done. There was, as a matter of plain commonsense, no logical basis upon which any claim could have been possible, were that not so. 32. When the respondent saw Mr Phelps shortly thereafter, it is clear that, despite the formers' present lack of memory in that regard, what was said to him by the latter reinforced what he had gleaned from Mrs Jarrett. Whilst Mr Phelps himself has no present memory of the precise conversation which took place, it is beyond question that he told the respondent that it had been ascertained that the most likely cause of the fire for the Mount Osmond bushfire that burned Yarrabee Road was clouting of conductors at Chapman Crescent, on the base of Mount Osmond. It is equally patent that the respondent was, at that stage, unaware of such a possibility. He told Mr Phelps so. Further, in cross examination, he said that, prior to this general time, he was unaware that ETSA was responsible for the fire in question. 33. In my opinion the Master was correct in assessing that the receipt by the respondent of the information of the physical responsibility of ETSA for the fire was a fact material to his case within the meaning of section 48 of the Act. 34. In so saying I by no means ignore the argument advanced by Mr White, of counsel for the appellant, that the probable cause of the fire as above described, was communicated by Mr Phelps in the context of what proved to be his erroneous memory that the Coroner had actually brought in a specific finding to the effect that the clouting of conductors at Chapman Crescent had initiated the relevant fire. It is now plain that the Coroner had not done so; and that Mr Phelps had been mistaken as to his recollection concerning the precise terms of the coronial finding. 35. On the other hand a careful examination of the evidence of Mr Phelps (particularly at pages 95-100 of the transcript of evidence) indicates that, whilst he accepted that the Coroner expressed residual doubt as to the precise cause of the fire, because of the number of fire fronts which had crossed Greenhill Road, nevertheless, the Coronial report did contain words which referred to clouting of conductors at Chapman Crescent, which might well have had a bearing on the fire - having regard to general evidence of bushfire behaviour known to Mr Phelps. 36. The truth of the matter seems to be that, in speaking with the respondent, Mr Phelps, who, according to the evidence, by then had gained considerable experience in acting for claimants in relation to the relevant Adelaide Hills fires on Ash Wednesday 1983, had in his mind an amalgam of information - stemming both from the coronial inquiry and his wider experience which, no doubt, gave rise to his faulty memory. 37. Mr White strenuously argued that, as the alleged material fact was that the Coroner had reported that ETSA was responsible, whereas he had not done so, then the material fact relied upon was not a fact at all. It therefore could not, he declaimed, meet the pre-condition of section 48. 38. I consider this contention to be over simplistic. Whether or not Mr Phelps was correct as to his source, the essence of what he was communicating to the respondent was a confirmation of Mrs Jarrett's earlier intimation that ETSA was, in some manner, physically responsible for the fire at Yarrabee Road - a fact which the respondent had not earlier appreciated. That was the real fact material to the respondent's case which is vital for present purposes. 39. In so saying I take into account the submissions made concerning the respondent's evidence as to his memory of what was said to him by Mr Phelps. The present inconsistencies between him and Mr Phelps are readily explicable in terms of Professor McFarlane's evidence concerning the nature of the respondent's psychiatric problems and their possible impact upon short and long term comprehension and memory. That was obviously the assessment of the Master and I see no reason to question it. 40. In the course of his reasons the Master expressed the view that, quite apart from the aspects above discussed, the evidence relied upon by the respondent was, in any event, that he had, for the first time, been given an expert opinion by Mr Phelps not merely that he had a proper cause of action against the respondent, but also that the effect of the Coroner's report was to establish that, as a matter of fact, the appellant was physically responsible for the occurrence of the fire. As I understand the Master's reasoning, it mattered not whether Mr Phelps' advice in that regard was soundly based - it was conceptually akin to that of the medical expert in the Sola Optical Case that a large per centage of functional disability had in fact resulted from the relevant injury. Both opinions focused on the existence of factual situations - the validity of which would need to be tested at trial - and not the mere legal issue of liability. It seems to me that there is considerable force in that line of reasoning. 41. In the foregoing circumstances I see no basis for overturning the essential conclusion arrived at by the Master - that the respondent had discharged his onus of proving the existence of facts material to his case within the time frame stipulated by section 48(3) of the Act. 42. No serious attempt was made on the appeal to impugn the reasoning of the Master, as set out in his reasons, concerning the basis upon which he exercised his discretion - given his primary findings of fact. 43. I agree with the ultimate conclusion to which he came. The appeal must be dismissed.
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