Smith v Morton

Case [2004] NSWCA 84

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Smith v. Morton [2004]  NSWCA 84 revised - 26/03/2004

FILE NUMBER(S):
40101/03

HEARING DATE(S):               11 March 2004

JUDGMENT DATE: 25/03/2004

PARTIES:
Trevor George Smith - claimant
Graham William Morton - opponent

JUDGMENT OF:       Giles JA Hodgson JA Stein AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 8297/00

LOWER COURT JUDICIAL OFFICER:     O'Reilly DCJ

COUNSEL:
Mr. A.C. Bridge SC with Mr. P. Gow for claimant
Ms. A. Katzman SC with Ms. S. Thode for opponent

SOLICITORS:
Hunt & Hunt, Sydney for claimant
Gary Robb & Associates for opponent

CATCHWORDS:
LIMITATION OF ACTIONS - Motor accidents - Extension of time - Loss of evidence - Whether fair trial likely - Onus of proof - Relevance of prima facie weakness of plaintiff's case - Relevance of alternative remedy

LEGISLATION CITED:
Motor Accidents Act 1988 s.52(4)

DECISION:
1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4.Judgment below set aside, and leave under s.52(4) refused, with costs. 5. Opponent to pay claimant's costs of the application and appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40101/03
DC   8297/00

GILES JA
HODGSON JA
STEIN AJA

Thursday 25 March 2004

SMITH  V.  MORTON

Judgment

  1. GILES JA:  I have had the advantage of reading the reasons of Hodgson JA in draft.  Subject to what follows, I agree with them. 

  2. I respectfully differ from Hodgson JA’s opinion that material error is not indicated by what the judge said concerning the alterations to the truck. 

  3. The alterations to the truck, in fact to the trailer also in that it was stripped of usable parts and left standing derelict in a paddock, plainly prejudiced the claimant in depriving him of the ability to lead expert evidence as to the occurrence of mechanical failure.  Evidence to the effect that the claimant once was able, but thereafter was not able, to lead material expert evidence was not required in the application.  The judge’s response was only that the tow ball, which he described as “obviously fractured” was still available and could be subject to metallurgical testing.  First, mechanical failure was not confined to the metallurgy of the tow ball.  Secondly, although photographs of the tow ball make the judge’s description understandable there was evidence that the tow ball had been “cut from the draw bar by an acetylene torch”, underlining that mechanical failure was not confined to the metallurgy of the tow ball.  The judge’s response was inadequate, and amounted to proceeding on a wrong view of the facts. 

  4. Although the alterations to the truck had probably occurred within months of the accident, the prejudice to the claimant was nonetheless to be taken into account in determining whether there could be a fair trial.  See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548-9, 554-5, and as an illustration

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Smith v Morton [2004] NSWCA 84
Case
[2004] NSWCA 84
Decision Date

CaseChat Overview and Summary

The case of Smith v Morton concerned an appeal from a primary judge's decision to grant a claimant leave to commence court proceedings out of time under section 52(4) of the Motor Accidents Act 1988 (NSW). The claimant sought to bring an action for damages arising from a motor accident, but had failed to commence proceedings within the prescribed three-year limitation period. The opponent argued that the delay had rendered a fair trial unlikely, and that the primary judge had erred in granting leave.

The central legal issue before the appellate court was whether the primary judge had correctly exercised their discretion in granting the claimant an extension of time to commence proceedings. This required the court to consider the onus of proof on the claimant to demonstrate that a fair trial was still likely, despite the delay and any consequent loss of evidence. The court also had to assess the relevance of the prima facie weakness of the claimant's case and the availability of alternative remedies.

The appellate court reasoned that for a trial to be considered fair, it need not be perfect or ideal. It was noted that the loss of an opportunity to have medical issues examined earlier could not necessarily be treated as a prejudice flowing from an extension of the limitation period. The court found that the primary judge's comments, which were criticised as reversing the onus, were likely a shorthand for dealing with the question of whether delay had made a fair trial unlikely, and did not necessarily indicate error. The court also considered that the claimant could rely on contemporary documents and the benefit of cross-examination of the opponent, while the opponent would not have the benefit of cross-examining the claimant. The court highlighted that the person who maintained and repaired the truck was available, and that the claimant was in no different a position than if the opponent had commenced proceedings in time.

The appeal was allowed, the judgment below was set aside, and leave under s.52(4) was refused. The opponent was ordered to pay the claimant's costs of the application and appeal.

Orders

Orders of the court

1. Leave to appeal granted. 2. Claimant to file Notice of Appeal within 14 days. 3. Appeal allowed. 4.Judgment below set aside, and leave under s.52(4) refused, with costs. 5. Opponent to pay claimant's costs of the application and appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Notice of Motion seeking the extension of time was filed in Court on 12 September 2002, but apparently had been served some time prior to that, because the matter then proceeded as a defended matter on that day. It was part-heard on that day and the hearing concluded on 3 February 2003. As mentioned earlier, judgment was given on 10 February 2003.PRIMARY JUDGE’S DECISION The question of extension of time was governed by s.52 of the Motor Accidents Act 1988, which is as follows:52 Time limitations on commencement of court proceedings(1) The objects of this section are: (a)to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and(b)to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if: (i)the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and(ii)the claim is likely to result in an award of substantial damages,or in the circumstances described in subsection (4A).(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until: (a)6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person’s insurer, or(b)90 days have elapsed since the details required by section 50A were given to the other person’s insurer, or(c)if the other person’s insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant’s response to the offer is communicated to the other person’s insurer,whichever is the later or latest.(1B) Subsection (1A) (c) applies only to the first offer made by the other person’s insurer and not to any subsequent offer.(2) If notice is given to the other person’s third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs: (a)the insurer denies all liability in respect of the claim,(b)the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,(c)in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant’s explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.(3) (Repealed)(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a)the date of the motor accident to which the claim relates, or(b)if the claim is made in respect of the death of a person, the date of death,except with the leave of the court in which the proceedings are to be taken.(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.(4B) The leave of the court must not be granted unless: (a)the claimant provides a full and satisfactory explanation to the court for the delay, and(b)the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.(4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.

Ratio Decidendi

Legal Principle Established

Ms. Katzman referred to McLean v. Sydney Water Corporation [2001] NSWCA 122 at [27], where Giles JA pointed out that, for a trial to be fair it need not be perfect or ideal. Ms. Katzman also referred to Seib v. Morton [2000] NSWCA 139 at [52], where it was pointed out that the loss of an opportunity to have medical issues examined earlier could not fairly be treated as a prejudice flowing from an extension of the limitation period. Ms. Katzman submitted that this was in no way inconsistent with what was said in Taylor at 548, 549 and 554-5. Ms. Katzman submitted that the sentence in the judgment of the primary judge which was criticised as reversing the onus was simply a shorthand way of dealing with the question whether delay had rendered a fair trial unlikely, and did not indicate error. Finally, Ms. Katzman submitted that, if this Court were to find error and exercise the discretion for itself, it would find that the claimant would have a fair trial, because he could rely on the contemporary documents as supporting his case, and would have the benefit of cross-examination of the opponent, whereas the opponent would not have the benefit of cross-examination of the claimant. The person who maintained and repaired the truck was available. The claimant was in no different position than if the opponent had commenced proceedings in time: indeed, the opponent had commenced proceedings in time, and the claimant had notice of these proceedings well before the expiry of the limitation period, but these proceedings had been struck out.DECISION On the question of whether leave should be granted, in my opinion it is pertinent that, assuming damages would exceed $100,000.00, the claimant is entitled to have an appellate ruling on the question raised by the proposed appeal. It would appear that, at least in theory, that right could be availed of if leave is refused and a trial of the proceedings proceeds to finality, and results in a decision in favour of the opponent. In an appeal from that decision, it appears that the claimant could rely on the ground that the primary judge who granted leave under s.52(4) of the Motor Traffic Act was in error in doing so. However, that would raise precisely the same question as proposed to be raised in the appeal for which leave is now sought; and if the claimant is correct on this, it seems undesirable that both parties should be put to the expense of a full trial of the proceedings. Accordingly, it seems to me appropriate to consider if there is substance in the claimant’s challenge; and if there is, it seems to me likely that it would be appropriate to grant leave. Turning to the substantive issues, I note that the legislature has, by its limitation legislation, drawn a line between cases that can be pursued to finality notwithstanding vicissitudes that may affect the availability of evidence, and those that can be pursued to finality only if a court is affirmatively satisfied that it is fair to the defendant to permit this. In the former class of cases, the death of a witness or loss of material evidence may raise difficulties for one or both parties; but this is generally entirely irrelevant to whether the case can be pursued to finality. In one sense, the loss of evidence through no fault of a party may make a trial unfair for that party; but in a broader sense, the trial is fair because the loss of evidence is simply the realisation of a vicissitude which could equally have affected either party, in the context of proceedings brought within the time prescribed by the legislature.