Smith v Smith

[1989] TASSC 98

Serial No. B20/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Smith v Smith [1989] TASSC 98; B20/1989

PARTIES:  SMITH
  v
  SMITH

FILE NO:  M490/1988
DELIVERED ON:  23 May 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B20/1989
Number of paragraphs:  14

Serial No B20/1989
File No M490/1988

SMITH v SMITH

REASONS FOR JUDGMENT  CRAWFORD J

23 May 1989

1. This application is for an extension of time in which to commence an action for damages for negligent driving against the respondent, arising out of a single vehicle motor accident on 18 June 1984. Under s5 of the Limitation Act 1974 an action for damages for negligence, where the damages claimed consist of, or include, damages in respect of personal injuries, shall not be brought after the expiration of a period of three years from the date on which the cause of action accrued unless a judge, after hearing such of the persons likely to be affected by that application as he may think fit, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extends the period limited for the bringing of the action, provided that the period does not exceed one of six years from the date on which the cause of action accrued.

1. The applicant relies on affidavits sworn by her solicitor, Mr Webster, an orthopaedic surgeon, Mr Field and herself. The affidavit of Mr Field was supplemented by a typed statement which the parties agreed should be treated by me as part of Mr Field's evidence, so as to avoid the need for him to be cross–examined. In addition a form of unsworn affidavit of the respondent is to be deemed by me to be his evidence, apparently to save the expense of bringing him from Queensland where he now lives.

1. The applicant alone was cross–examined. Her evidence was to the following effect. She was born on 18 November 1968 and is now 20 years of age. At the time of the accident she was 15 years old. At 7.45am on that day she was a front seat passenger in a Torana sedan which was owned and driven by the respondent. He is her brother (and was then aged 18 years). They were travelling on the Lyell Highway from New Norfolk and were about half way between there and Granton. The respondent had owned his car for only four or five days. It was second hand. He was driving the applicant to her high school. The road was wet and slippery. The car came to a left hand bend, which was not a sharp corner but rather a sweeping bend. She can remember no other cars. The car was travelling quite sedately. She did not consider at the time that the respondent was driving too fast to get around the bend without difficulty. Suddenly the car flipped over onto its passenger side and slid off the left side of the road into some bushes. It all happened very quickly. All she remembers is that it flipped over. There was to her no apparent reason for it doing so. The respondent did not seem to swerve before hand. She did not hear any unusual noise just before the accident. She could not remember whether the car went off the side of the road before it flipped over. All she could remember was that it flipped over and went off the road.

1. The applicant's evidence was that she suffered injuries to her back and was admitted to the Royal Hobart Hospital for five days. She suffered crushed T11 and T12 vertebrae and nothing else. She was discharged from hospital and then spent two months at home recuperating, before returning to school. Initially she was "in that much pain it wasn't funny". Even when she returned to school she was suffering a lot of pain and could not wear tight clothes. Over the five years since she has had aches and pains in the lower and middle back which are aggravated by physical activity, prolonged sitting and standing, and cold and wet weather. It has improved a bit but now it is not improving or getting worse. She cannot ride a horse for more than 10 or 15 minutes, following which she must get off because her back aches. She needed boards to be placed under her bed following the accident and she can only sleep on her back. At the time of the accident she was in grade 10 studying level II for three subjects and level III for the rest. By the end of 1984 she had dropped in standard to level II and level I, with no level III subjects, because of her time away from school, she says. She has had little employment since. She was employed by a clothing manufacturer as a sewing machinist from about March to June 1988, but was put off because she was not productive enough, she claims because the back pain interrupted her work.

1. Her evidence as to the cause of her ongoing symptoms conflicted with that of the orthopaedic surgeon, Mr Field. He said that she did suffer compression fractures of the T11 and T12 vertebrae. He found on 17 November 1988 that she was tender on direct pressure over the interspinous ligaments from approximately T12 to L5. X–rays showed some wedging of both the T12 and L1 vertebral body consistent with the fractures. Mr Field is of opinion that it is more likely than not that the injuries are not causing any of her symptoms, which he considers are likely to have been caused by a natural, degenerative condition of the lower spine, unrelated to the accident. He believes that she is not prevented or restricted from doing any work, except work involving heavy lifting or long periods of back bending. The compression fractures were very minor and he expects that they resolved quickly without symptoms.

1. So far as the delay in commencing a claim for damages is concerned, the applicant's evidence was that immediately following the accident her mother, with whom she was then living, notified the Motor Accidents Insurance Board of the accident and all medical accounts, she believed, were paid by the Board. She was not advised by her mother, the Board or any other person of the possibility of suing the respondent for damages until September 1988. To that time she was unaware of common law actions and of any time limits for making a claim. When she was in hospital she was told by someone that the exhaust may have fallen off and jammed the back wheel but "they" said it was not true. All along she had a suspicion that the accident was her brother's fault. In September 1988 she told a friend about her back trouble and the accident and he told her to obtain legal advice quickly. She made an appointment to attend at a legal aid office, but had to wait one and a half weeks for it. That office then told her to see a private solicitor and she arranged an appointment to see her present solicitor, Mr Webster, within a week.

1. Mr Webster's evidence established that he was consulted by the applicant on 25 October 1988. He arranged for her to see Mr Field on 17 November. He wrote to the police for statements concerning the accident but on 8 November was told the police had no record of it. On about 12 December he received two medical reports from Mr Field and on 14 December he discussed them with the applicant, who instructed him to commence the application for an extension of time. Legal aid for that purpose was obtained and this application was filed on 20 December 1988, with supporting affidavits being filed in January and February this year. No blame can be attached for any delay since.

1. The deemed evidence of the respondent was to the following effect. He recalls the accident. He in fact made a statement to the police on the day following the accident in which he said as follows:

"As I was rounding a slight left hand bend in the road, approximately 6 kilometres north of Granton I suddenly felt the tail end of my vehicle grab and bounce around to the right.

As a result my vehicle then went onto the gravel edge on the left hand side of the road and suddenly turned onto its left side. The vehicle then skidded along on its left hand side for approximately 50 metres until it came to rest near a small tree.

After the vehicle stopped I alighted from my vehicle. A short time later both the police and ambulance arrived and, with my sister, I was taken to the Royal Hobart Hospital. I was not injured in the accident.

I was wearing my seat belt at the time.

At the time of the accident the road was wet. I was travelling at approximately 80 to 83 kilometres per hour at the time of the accident. I consent to this statement being used in civil proceedings."

1. He believes that it was accurate as to his beliefs and recollections at that time, but he no longer has a recollection of feeling "the tail end of my vehicle grab". The respondent also signed and submitted on 6 September 1984 to the Motor Accidents Insurance Board a form of Notice of Accident. In it he said that he was driving at 80 kilometres per hour and his description of the accident was in the following terms:

"Rounded slight curve in road, heard an unusual noise, could not control car and ran off the left hand side of the road through a fence. The car stopped on its side (passengers) in a paddock. Car later found to have a snapped exhaust pipe which had lodged around back axle".

1. He believes it was accurate as to his beliefs and recollections at that time, but he no longer has a recollection of hearing "an unusual noise" as referred to in the form. He had purchased the car from a car dealer just prior to the accident.

1. The applicant has satisfied me of her reasons for not making a claim within time. She was only fifteen years of age at the time of the accident and was ignorant of her rights until September 1988. She has not unreasonably delayed since then. I am also satisfied that she has established a prima facie or arguable case of negligent driving. Cars do not normally tip over or run off the road without negligence on the part of the driver, without evidence of some cause suggesting absence of negligence. The deemed evidence of the respondent suggests that the accident may have been caused by a circumstance beyond his control, but that would be a matter for him to establish at the trial. I cannot resolve the question on the hearing of this application.

1. It was submitted for the respondent that the evidence of Mr Field establishes that the applicant is suffering no ongoing symptoms from her injury. But she certainly was injured, suffering quite an amount of pain and was forced to be absent from school for two months. Her evidence suggests that in fact she is still suffering from her injury. The extent of her injury and her pain and suffering would be a matter for the trial judge on the hearing of the action. Now is not the time for me to resolve that conflict.

1. I must carefully consider the deemed evidence of the respondent that he no longer recalls feeling "the tail end of my vehicle grab" nor hearing "an unusual noise". There are two particular problems with his deemed evidence. One is that I do not know when it was that such recollections left him. The other is that his deemed evidence is otherwise silent as to what evidence he has, or does not have, which might show that the cause of the accident was not his negligent driving, but was the exhaust pipe lodging around the back axle. I presume that he can still produce evidence to that effect but precisely what it is I do not know. Presumably he can still recall that he suddenly felt the tail end of the vehicle bounce round to the right, and that as a result the vehicle then went onto the gravel edge on the left hand side of the road and suddenly turned onto its left side. Of course it is not a matter for him to establish absence of negligence at this time, nor is it his obligation to disclose his evidence.

1. The respondent was not cross–examined. If he had been, I would be in a better position to assess the extent to which his chances of successfully defending the action have been prejudiced by the passage of time. It may well be that the applicant would have had financial difficulty in paying for the costs of the respondent travelling from Queensland to be cross–examined. Be that as it may, I am of the view that I must accept the effect of the respondent's deemed evidence. On that basis, I find that time has dimmed his memory to the extent that he can no longer recall two important matters, they being the sudden grabbing of his vehicle and the unusual noise immediately before he lost control. It seems to me that if these two matters were established as facts they could have a most important bearing on the result of the case. Because the evidence leaves me no choice but to find that they have been lost from the respondent's memory through the effluxion of time I do not consider it appropriate, in the interests of justice, that time should be extended in favour of the applicant.