Senyucel v Mercy Secondary Education Inc & Ors (Ruling)
[2015] VCC 1157
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-04418
| EDANUR SENYUCEL | Plaintiff |
| v | |
| MERCY SECONDARY EDUCATION INC | First Defendant |
| and | |
| JOHN MAXWELL DOWSON | Second Defendant |
| and | |
| RHONDA YVONNE DOWSON | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2015 | |
DATE OF RULING: | 28 August 2015 | |
CASE MAY BE CITED AS: | Senyucel v Mercy Secondary Education Inc & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1157 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to Limitation of Actions Act 1958 – whether “just and reasonable” to grant an extension – conduct of solicitor representing plaintiff – general prejudice – specific prejudice
Legislation Cited: Limitation of Actions Act 1958 (Vic), s27E; Civil Procedure Act 2010; County Court Civil Procedure Rules 2008
Cases Cited:Brown v Commissioner of Taxation (2001) 47 ATR 143; Bell v SPC Limited [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Ruling: The time for the issue of the writ be extended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Melbourne Injury Lawyers |
| For the First Defendant | Ms M Britbart | Wotton + Kearney |
| For the Second and Third Defendants | Ms A Magee | DLA Piper |
HIS HONOUR:
Preliminary
1 This is an application by the plaintiff, Edanur Senyucel, by Summons dated 1 April 2015, for an extension of the limitation period within which to bring an action for damages. Ms Senyucel alleges that on 21 April 2006, she fell and suffered injury to her left elbow whilst roller skating (“the incident”) during an excursion organised by her school, the first defendant, Mercy Secondary Education Inc (“Mercy”) at a roller skating rink owned and operated by the second and third defendants, John Maxwell Dowson and Rhonda Yvonne Dowson (“Dowson”).
2 Ms Senyucel alleges that her injury was caused by the negligence of the defendants, principally, by reason of their failure in the provision of instruction and training, supervision of the activity and the provision of protective equipment. The particulars of negligence pleaded in the Amended Statement of Claim are identical as against each defendant.
3 Ms Senyucel was eleven years old at the time of the incident. The limitation period in respect of her cause of action is thus governed by 27E of the Limitation of Actions Act 1958 (“the Act”). There is agreement between the parties that Ms Senyucel’s cause of action accrued on the date of the incident and therefore her six-year limitation expired on 21 April 2012.
4 By their Defences, both Mercy and Dowson plead the proceeding against them is statute barred, given it was commenced more than six years after the cause of action was discoverable.
5 Ms Senyucel issued a Writ on 9 September 2014. The Writ is out of time by almost two years and five months.
6 The period of delay between the accrual of the cause of action (21 April 2006) and the issue of the Summons (15 April 2015) is eight years eleven months (“the period of delay”).
7 In brief compass, both Mercy and Dowson submit it is not just and reasonable to extend the limitation period for the following reasons:
· Each will suffer general prejudice by reason of the effluxion of time.
· There is a strong case in negligence against Ms Senyucel’s former solicitor, Mr Zigouras.
· Each says that if an extension was granted against either Mercy or Dowson, but not the other, the party remaining in the proceeding will be prejudiced by being unable to either commence proceedings for contribution or seek joinder as a third party by reason of the proper basis certification requirements prescribed by the Civil Procedure Act 2010.
8 In addition, Mercy claims:
· Written documents relating to the incident cannot be located or are lost.
· By reason of Ms Senyucel’s delay, it cannot fully identify which teachers were present at the excursion because it no longer has any relevant records.
· Without the ability to adduce evidence from teachers present at the excursion, it will suffer specific prejudice because it cannot properly address the allegations in relation to supervision and instruction or challenge the evidence of Ms Senyucel and her lay witness (another student).
· The Court will have to determine Ms Senyucel’s claim based on her evidence and that of her lay witness, both of whom were eleven years old at the time of the incident.
9 In addition, Dowson claims:
· Written documents relating to the incident cannot be located or are lost.
· By reason of Ms Senyucel’s delay, it cannot identify which of its employees was present at the time of the incident because any relevant documents have been either lost or destroyed.
· It will therefore suffer specific prejudice because it cannot properly address Ms Senyucel’s allegations in relation to supervision, instruction and provision of safety equipment, or challenge the evidence of Ms Senyucel and her lay witness.
10 Mr Ingram, for Ms Senyucel, submitted that in the circumstances, it is just and reasonable to extend the time for the following reasons:
· The potential claim for professional negligence against Mr Zigouras is very difficult and complex. It cannot be equated with the claim against the primary tortfeasor;
· He disputed the adequacy of the defendant’s affidavit material and the degree of prejudice each claimed;
· The period of delay was not that long;
11 For the reasons which follow, I consider it is just and reasonable to extend the limitation period as against both Mercy and Dowson.
Other matters
12 By Summons dated 12 May 2015, Dowson sought judgment against Ms Senyucel, pursuant to Order 23.03 of the County Court Civil Procedure Rules 2008. Shortly after the above application had commenced, Ms Magee, for Dowson, advised that the application would not be proceeded with.
13 A preliminary dispute arose between the parties with respect to the admissibility of the affidavit of Steven Parashis, solicitor for Ms Senyucel, sworn 12 August 2015.
14 Exhibited to the affidavit were two redacted letters dated 2 June and 11 August 2015 written by Ms Willshire, solicitor for Dowson, to Mr Parashis. I was informed by the defendants that the redacted portions of those letters contained without prejudice offers of settlement to Ms Senyucel and were thus inadmissible pursuant to s131 of the Evidence Act 2008, which excludes communication in connection with an attempt to negotiate a settlement of a dispute.
15 The letters also contained the following identical dot points:
· “Your client was informed that there was safety equipment available at the rollerama which was available for use at the time of her accident.
· Your client fell over because another skater accidently fell in front of her. This is an unforeseen accident that was not caused by the negligence of the defendants.”
16 Mr Ingram argued that the dot points contain factual matters that undermined the basis for the defendants’ position that they are unable to locate witnesses. He said the dot points indicated there may be witnesses available to one or other of the defendants, notwithstanding that the opposite position had been expressed by both defendants in their respective affidavit material. From the bar table, both defendants denied Mr Ingram’s assertion.
17 Mr Ingram submitted that the dot points fell within the exception of s131(2)(g) of the Evidence Act 2008 on the basis that the Court would likely be misled if the affidavit’s admission into evidence were to be refused.
18 Having regard to the decision of Emmett J in Brown v Commissioner of Taxation[1] to which the defendants directed my attention, I considered that s131(2)(g) of the Evidence Act 2008 has no application and I ruled the affidavit inadmissible.
[1](2001) 47 ATR 143
Applicable legislation
19The application is brought pursuant to the provisions of s27K of the Act, which provides:
“(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court—
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.”
20Section 27L of the Act sets out the matters to be considered in determining an application for an extension of the limitation period:
“(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant’s conduct.
(3)In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4)In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”
Relevant legal principles
21 The Court may make an order extending the time for commencement of a proceeding if it decides “it is just and reasonable to do so”.[2] In exercising the power under s27K of the Act, the Court shall have regard to all the circumstances of the case (including but not limited to) the factors set out in s27L(1) of the Act.
[2]Section 27K(2)(b) of the Act
22 The principles I consider relevant to this application are:
· Ms Senyucel has the onus of satisfying the Court that it is just and reasonable to extend the limitation period.[3]
[3]Bell v SPC Limited [1989] VR 170 at 174
· In determining an application for an extension of time, the Court should synthesise the competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that Ms Senyucel bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[4]
[4]Tsiadis v Patterson (2001) 4 VR 114 at 116 and 123
· The delay referred to in s27L(1)(a) of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time.[5]
[5]Koumorou v State of Victoria [1991] 2 VR 265 at 271
· The availability of a cause of action to the plaintiff against his or her solicitor is a relevant factor to take into account.[6]
[6]Tsiadis v Patterson (supra)
· Time may diminish the significance of a known fact or circumstances, and relevant evidence may be lost. It is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to arrange their affairs in the knowledge that they have no liabilities beyond a certain period.[7]
[7]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554 – 555
· An inordinate delay may be taken as evidence of prejudice.[8]
[8]Tsiadis v Patterson (supra) at 123 – 124
· The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendants’ potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on them.[9]
· In relation to the passage of time and any resulting prejudice, consideration is to be given as to whether the passage of time has prejudiced a fair trial of the claim.
[9]Brisbane South Regional Health Authority v Taylor (supra) at 554 – 555
The evidence
23 No witnesses were called to give evidence or be cross-examined.
24 Ms Senyucel relied on her affidavit sworn 27 March 2015.
25 Mercy relied on the affidavits of its solicitor, Ms Noa Zur, sworn 14 May and 12 August 2015.
26 Dowson relied on the affidavit of their solicitor, Ms Christine Willshire sworn 14 May 2015.
27 The parties made oral submissions.
Ms Senyucel’s delay in bringing the proceeding against Mercy and Dowson
28 Details of the steps taken by Ms Senyucel to prosecute her claim are set forth in her affidavit sworn 27 March 2015. I summarise the salient events as follows.
29 After the incident, Ms Senyucel said her father took her to Mildura Base Hospital, where she had an x-ray and her arm was placed in plaster. She said her elbow remained painful despite that treatment. Subsequently – exactly when is unclear – Ms Senyucel’s father took her to the Royal Children’s Hospital in Adelaide where she consulted a surgeon, who advised that her elbow had been incorrectly set in plaster. Surgery was discussed but not recommended.
30 On 26 November 2010, Ms Senyucel said she consulted with Mr Zigouras, solicitor, in Mildura. She said he advised her to wait until she was eighteen years old before brining proceedings and that she had until the age of twenty one to commence proceedings.[10]
[10]The plaintiff’s affidavit sworn 27 March 2015, paragraph 9
31 Ms Senyucel said she attended Mr Zigouras on a further occasion in Mildura, and approximately four to five times in Melbourne. During this time, his advice remained unchanged. She did not give dates of those attendances.
32 Due to some uncertainty in Ms Senyucel’s condition – exactly what is not mentioned – she was referred by her general practitioner on 18 October 2013 to Mr Love, orthopaedic surgeon. Mr Love expressed the same opinion as the surgeon she had seen in Adelaide; that is, surgery would not improve her condition.
33 On 4 February 2014, at Mr Zigouras’ request, Mr Love performed an impairment assessment on Ms Senyucel’s elbow, for which he provided a certificate pursuant to s28LNA of the Wrongs Act 1958.
34 On 21 July 2014, Ms Senyucel attended a Medical Panel for an examination. On 1 August 2014, the Medical Panel determined that Ms Senyucel’s degree of whole person impairment satisfied the required threshold under the Act.
35 Some time in mid 2014, Mr Zigouras arranged for Ms Senyucel to consult with Mr Perry, of Counsel. She said Mr Perry advised that the time for commencement of proceedings had passed and it would be necessary for her to obtain advice from new solicitors. Mr Zigouras sent a letter to Ms Senyucel telling her that it would be necessary for her to seek alternate advice.
36 On 3 September 2014, Ms Senyucel consulted her current solicitor, Mr Steven Parashis, at Melbourne Injury Lawyers in Glenroy. He arranged for a Writ to be issued.
37 Ms Senyucel said her solicitors received Mr Zigouras’ file on 20 October 2014.
Cause of action against Mr Zigouras
38 The defendants submitted that the delay in commencing the proceeding occurred by reason of the negligence of Ms Senyucel’s former solicitor, Mr Zigouras. They said the availability of a cause of action against him is a factor that I should take into account.
39 Ms Britbart directed me to the following comments made by Buchanan JA in Tsiadis v Patterson:[11]
[11]Supra
“The relevance of a cause of action against a negligent solicitor has arisen in various contexts: extension of a period of limitation, dismissal of an action for want of prosecution and renewal of a stale writ. In those cases in which the nettle of a plaintiff's ability to successfully sue his solicitor has been grasped, there has been a divergence of opinion. Some judges have regarded the ability of the plaintiff to sue a solicitor as irrelevant, while others have taken it into account.[12]
…
In my opinion it is appropriate in determining an application pursuant to s.23A of the Act to have regard to the ability of an applicant to recover damages from a former solicitor whose default has made the application necessary. The existence of a cause of action against a solicitor may enable the respondent to recover compensation partly as a consequence of the original wrongdoing.”[13]
…
In my view the additional element which renders the availability of a cause of action against a solicitor relevant to the exercise of the discretion is that the cause of action arises from the barring of the right of action in respect of which an extension of time is sought. The Court is required by the section to have regard to all the circumstances of the case. The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the Court's discretion.[14]
…
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. [15]
…
In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent's version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd. v. Scardamaglia should not lead to a plaintiff's potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.” [16]
[12]Tsiadis v Patterson (supra) at paragraph 26
[13]Tsiadis v Patterson (supra) at paragraph 27
[14]Tsiadis v Patterson (supra) at paragraph 27
[15]Tsiadis v Patterson (supra) at paragraph 28
[16]Tsiadis v Patterson (supra) at paragraph 28
40 Ms Britbart argued that the case in negligence against Mr Zigouras is stronger than was in Tsiadis for the following reasons:
(i) Ms Senyucel deposed to the fact that Mr Zigouras gave allegedly negligent advice as to the expiry of the limitation period in 2010 which remained unchanged until mid 2014 when she saw Mr Perry who told Ms Senyucel the limitation period had expired.
(ii) Mr Zigouras sent Ms Senyucel a letter telling her to seek alternative advice.
41 Both Ms Britbart and Ms Magee said that Mr Zigouras’ actions showed clear negligence, in particular, the letter referring her to other solicitors was an admission to that effect.
42 Mr Ingram said a claim against a solicitor for professional negligence cannot be equated with the claim against the primary tortfeasor. To succeed in a professional negligence claim, it is necessary to prove the case against the original tortfeasor and the solicitor as well. Essentially, the claimant must “run a trial within a trial”.
43 In my view, Ms Senyucel acted promptly and reasonably in attempting to obtain legal advice and prosecute her claim. I consider that no blame for the delay can be sheeted home to her. On the face of it, there would appear to be a cause of action in negligence against Mr Zigouras. However, bearing in mind Buchanan JA’s comments above, some caution should be exercised. I have no evidence before me from Mr Zigouras. I am reliant totally on the evidence of what occurred from Ms Senyucel. It is possible there may be a dispute as to what she said to Mr Zigouras.
44 Further, while he did refer his client to another firm of solicitors, that may be no more than a cautious solicitor ensuring independent advice is provided where there is even the slightest suggestion of fault. It may or may not constitute an admission. That can only be determined after all of the evidence is heard. Finally, as Mr Ingram pointed out, were the plaintiff forced to bring a proceeding in professional negligence against Mr Zigouras, she would be faced with the two-fold requirement of proving negligence against the primary tortfeasors, as well as against her solicitor. Such actions are often heavily contested and plaintiffs put to their proof. There is the further complication of delay and additional costs. All these matters should be borne in mind.
45 The defendants submitted that the negligence of Mr Zigouras was far more significant than Mr Turner, the solicitor in Tsiadis. In other words, the present case is stronger than Tsiadis. However, on examination, the facts are not particularly dissimilar. In Tsiadis, the plaintiff suffered injury in an incident in 1989. In May 1990, she instructed Mr Turner to pursue her claim for compensation. At one point, he obtained a surgeon’s report. She enquired of the progress of the action with him from time to time but was fobbed off with excuses. In 1996, she engaged other solicitors and was informed her proceeding was statute barred.
46 It is no simple matter to equate and measure the conduct of a solicitor, on the one hand, who provides inaccurate advice, and on the other, who sits on his hands and does nothing. Mr Turner had the conduct of the proceeding for six years, while Mr Zigouras was involved for about four years. It should be borne in mind that the Court, in Tsiadis, in considering all of the evidence, determined that it was just and reasonable to extend the time.
47 Of itself, the potential action against Mr Zigouras is not, in my view, a factor sufficient to prevent an extension of time. However, as the authorities make clear, it is one factor to be synthesised with the other issues.
General prejudice
48 The defendants submitted that the almost nine-year delay in bringing the summons is unreasonable and that each defendant will suffer prejudice by reason of the effluxion of time as identified by McHugh J in Brisbane South Regional Health Authority v Taylor:[17]
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[17](supra) at 551
49 I accept that Ms Senyucel’s delay will cause the defendants to suffer some general prejudice, as identified by McHugh J. The fallibility of human memory makes this unavoidable. I therefore give this factor some prominence in the synthesis. In the case of Mercy, I am mindful that the incident was reported to it at the time. That is clear from the Accident Report Form completed.[18] According to the affidavit of Ms Willshire, for Dowson, the incident was not reported to her clients and they only became aware of it when they received a letter of demand in July 2014. Overall however, I am not persuaded that the period of delay is inordinate in the circumstances.
[18]Exhibit NZZ 8 to the affidavit of Noa Zur sworn 12 August 2015
50 It is never a straightforward matter to determine the extent to which general prejudice, occurring over a period of approximately nine years, will affect the capacity of the defendants to properly defend the plaintiff’s claims at trial. However, what should be borne in mind, is that the incident was a relatively straightforward fall. The allegations of negligence are confined, as referred to above. While there will undoubtedly be some effect upon the capacity of witnesses to recall the events, I do not view that as particularly significant. I am of the view that there will be no significant prejudice to the defendants in that regard.
Specific prejudice and Mercy
51 Mercy alleges that by reason of Ms Senyucel’s delay, it cannot fully identify which teachers were present at the excursion, because it no longer has any relevant records.
52 Ms Britbart submitted that without the ability to adduce evidence from teachers present at the excursion, Mercy will suffer prejudice, because it cannot properly address the allegations in relation to supervision and instruction. She said in a supervision case such as this, evidence as to the numbers of teachers present at the excursion, what was said to students by way of instruction or briefing and where each teacher was standing are matters of critical importance.
53 Ms Britbart further submitted that a consequence of Ms Senyucel’s delay is that Mercy no longer has the opportunity to properly challenge the evidence of Ms Senyucel and her lay witness and the Court is left to determine the claim based on evidence from two witnesses both of whom were eleven years of age at the time of the incident.
54 Mercy’s solicitor, Ms Zur, deposed to having identified two teachers present at the excursion based on an Accident/Injury Report Form dated 21 April 2006. The form records the names, Jen Ostrogany and Danielle Dusher.
55 Mercy’s solicitors made enquiries of Ms Ostrogany which revealed that she is no longer an employee of Mercy and she has no recollection of the incident or the excursion at all.[19]
[19]Affidavit of Noa Zur sworn 12 August 2015, paragraph 8
56 Enquiries were also made of Ms Danielle Dusher, a current employee of Mercy. According to Ms Zur, Ms Dusher did not witness the incident, but attended to the plaintiff immediately after.[20] Ms Dusher expressed to Ms Zur that there were likely to have been additional teachers present and supervising at the excursion, not only herself and Ms Ostrogany. Ms Dusher further advised Ms Zur that it is likely that there was a briefing to students before they began roller skating, and such a briefing would have been conducted by a senior teacher in attendance. Ms Dusher was not a senior teacher at the time. She advised Ms Zur that she is unable to recall the contents of the student briefing and she is unable to positively recall the identity of other teachers who were present at the excursion.
[20]Affidavit of Noa Zur sworn 12 August 2015, paragraph 9
57 Ms Zur asserted in her affidavit that Mercy does not have any further documents or information in relation to the excursion.[21]
[21]Affidavit of Noa Zur sworn 12 August 2015, paragraph 12
58 In response, Mr Ingram argued that the affidavits of Ms Zur are inadequate to persuade me that Mercy has suffered significant prejudice. He said:
· No attempt was made to provide Ms Ostrogany with the Incident Report so that she could refresh her memory.
· Ms Dusher’s assertion that there were likely additional teachers present is speculation. She and Ms Ostrogany may have been the only teachers present, in which case all relevant witnesses have been located.
· There is no evidence as to what documents were created as a matter of course for excursions, where those documents were stored or details of any policy regarding the numbers of teachers allocated to students.
59 For the most part, I agree with Mr Ingram’s submission. There is no evidence about Mercy’s usual practice from which I can draw an inference that there would have been more teaching staff present. I find Ms Zur’s affidavit deficient in this regard.
60 Further, I consider Ms Zur’s description of the searches undertaken by Mercy to be cursory. It is silent about the dates the searches were carried out and the extent of the searches conducted. These matters have not, in my view, been adequately explained.
61 In applications such as this, where the right of a plaintiff to bring a cause of action may be dismissed, evidence provided as to steps taken to investigate the circumstances of an incident should be far more comprehensive and detailed. While the rules of civil procedure provide that in an interlocutory application, evidence may be given as to knowledge and belief, and of information provided by others, that is not sufficient in an application to extend time. I would have expected the teachers who were identified to be on affidavit themselves, as to precisely their recollection of what occurred at the time of the incident. Steps should have been taken to locate Ms Ostrogany, and an affidavit provided detailing her recollection. Likewise, Ms Dusher. Further, I would have expected an affidavit from one of these teachers, or another representative of the school, detailing what the practice was as to supervision of students on excursions such as this. For example the number of teachers provided and whether there were any particular instructions as to supervision. A failure to provide this material on affidavit leads me to the conclusion that a somewhat cursory attempt was made to support the allegation of specific prejudice.
62 I am not satisfied a comprehensive and thorough search has been made to determine the extent of the supervision by teachers from the school at the time. Even accepting there is some prejudice to Mercy in identifying the numbers of teachers present, and their capacity to supervise the students, it is not, of itself, sufficient to deprive Mercy of the ability to conduct a fair trial. The availability of the Incident Report and Ms Dusher, together with the opportunity for cross-examination of Ms Senyucel and her lay witness, to some extent diminishes the prejudice against Mercy.
63 As for the young age of the witnesses at the time of the incident, I find that I am not persuaded by this argument. I consider that the age of the witnesses may actually be an advantage to the defendants depending on the quality of their evidence.
Specific prejudice and Dowson
64 Dowson alleges that by reason of Ms Senyucel’s delay, it cannot identify which of its employees were present at the time of the incident, because any relevant documents have been lost or destroyed. It will therefore suffer specific prejudice, because it cannot properly address Ms Senyucel’s allegations in relation to supervision, instruction and provision of safety equipment, or challenge the evidence of Ms Senyucel and her lay witness.
65 Dowson relies on the affidavit of Ms Willshire, that the incident was not reported to Dowson at the time it occurred, as alleged by Ms Senyucel. Dowson did not become aware of the incident until July 2014, some eight years and three months after the incident.
66 In October 2013, the Dowsons sold the roller skating business to their daughter and son-in-law, who remain the current owners. All documents relating to the business in existence at the time were passed on to the new owners. Mr Dowson informed Ms Willshire that he had asked the new owners if they had any documents in their possession relevant to the proceedings such as an incident report, list of employees working that day and confirmation of the school’s booking. He told Ms Willshire that the new owners do not have the relevant documents in their possession. The documents have either been lost or destroyed at an unspecified date.[22]
[22]Affidavit of Christine Willshire sworn 14 May 2014
67 Ms Willshire asserted that there would have been an employee present at the premises. She stated that the Dowsons informed her that they do not recall who was working on the day, or the names of their employees in April 2006.
68 Ms Magee submitted that there may have been booking documents which had exclusion clauses, details of how many students were coming, the numbers of teachers that would have been in attendance and staff allocations. Ms Magee argued that the loss of documents was reasonable in view of the sale of the business prior to notification of the claim. She said the loss of documentation cannot be rectified and therefore is a significant matter to be taken into account.
69 Mr Ingram was critical of Dowson for the following reasons:
· No reference was made to any other person or institution who may have records on their behalf, for example an accountant or local authority.
· Mercy’s Incident Report was not shown to the Dowsons to enable each to refresh their memory.
· There is no evidence as to what documents Dowson kept as part of its usual business practice which might have been lost or destroyed.
· There is no indication of how many staff Dowson had on their books at the time of the sale of their business and how long those staff members had been employed for.
70 Again, I mostly agree with Mr Ingram’s submission; however, I doubt whether showing an Incident Report created by Mercy would have advanced the matter in any meaningful way. No doubt the Dowsons have been informed by their solicitors how the incident is alleged to have occurred.
71 I make the same criticism of the affidavit tendered on behalf of Dowson. In my view, the Dowsons should both have provided affidavits as to their usual practice with respect to documentation for school excursions, staff allocation and recording of incidents. They should have also detailed the searches each undertook and enquiries each made of the new owners as to any documents still in existence.
72 Ms Willshire’s affidavit is, in my view, quite cursory and inadequate.
73 The enquiries made as to any other employees who may have been present at the time are wholly inadequate. Attempts should have been made, either through the Taxation Office or Dowson’s accountants, as to documentation which would indicate employees at the time. It is difficult to believe the Dowsons could not give evidence, even of a general nature, of the number of employees they retained nine years before. Presumably there would be payment records available at least at some stage. Nothing is said as to the usual practice for the completion of documentation involving schools. There is little, if any, detail of what equipment was available, in particular, protective equipment around the area of the elbow[23] and nothing about the circumstances under which such protective equipment was issued.
[23]The plaintiff suffered an injury to her elbow
Conclusion
74 The lapse of time since the incident means there has been some prejudice to the defendants. The recollection of witnesses as to what occurred will undoubtedly be affected. The complaints of the defendants that there is specific prejudice, in that potential witnesses can now not be located, and documents have been lost or destroyed, is more doubtful given the cursory and incomplete investigations made. Even accepting there is some prejudice in that regard, in my view, it is not substantial. There is the prospect that the plaintiff has a cause of action against her former solicitor, but the passage to a successful outcome in that regard is potentially lengthy and not without difficulty.
75 While the delay of almost nine years from the date of the occurrence of the incident at the present time is lengthy, in the scheme of things it is not inordinate. The incident itself was relatively simple and the allegations made by the plaintiff confined. The incident occurred when another skater fell unexpectedly in front of Ms Senyucel. I do not accept that there will be any real and substantial prejudice to the defendants in being able to properly defend the action.
76 Taking into account all of the factors to which I have referred, in my view, it is just and reasonable, even accepting the prospect of prejudice to the defendants, that the time for the issue of the writ be extended. I will make consequent orders to that effect.
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