Stephen Reid v Calvary Hospital Act Incorporated (ABN 43 786 634 505)
[2008] ACTSC 134
•5 December 2008
STEPHEN REID v CALVARY HOSPITAL ACT INCORPORATED (ABN 43 786 634 505)
[2008] ACTSC 134 (5 December 2008)
EX TEMPORE JUDGMENT
LIMITATION OF ACTIONS – personal injury – claim against occupier of land – failure of defendant’s insurer within limitation period – lapsing of government relief package following that failure within limitation period – action commenced eighteen months out of time – actual prejudice to defendant – extension refused
Limitation Act 1985, s 36
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
No. SC 496 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 5 December 2008
IN THE SUPREME COURT OF THE )
) No. SC 496 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STEPHEN REID
Plaintiff
AND:CALVARY HOSPITAL ACT INCORPORATED (ABN 43 786 634 505)
Defendant
ORDER
Judge: Master Harper
Date: 5 December 2008
Place: Canberra
THE COURT ORDERS THAT:
The application for extension of time be refused.
The plaintiff pay the defendant’s costs of the application.
This is an application for an extension of time to commence proceedings for damages for personal injury against Calvary Hospital ACT Incorporated. The plaintiff alleges in the statement of claim that on about 18 October 2000 he was walking through an area in the vicinity of the hospital when he slipped and fell, injuring his back, right shoulder and right leg.
The limitation period under the Limitation Act 1985 applicable to an injury sustained on 18 October 2000 was six years. Hence that limitation period expired on 19 October 2006. The present action was not commenced until 30 June 2008, something more than eighteen months later. The plaintiff applies for an order extending the limitation period until the date when proceedings were commenced.
The Court has power to make such an order under section 36 of the Limitation Act. Section 36 provides that the Court may, after hearing persons likely to be affected by the application, if it decides that it is just and reasonable to do so, order that the period within which the action may be brought be extended for such period as the Court determines.
Under subsection 36(3), the Court is required to have regard to all of the circumstances of the case including specified factors which the Court could or should take into account. These include the length of and reasons for the delay on the part of the plaintiff; the extent to which having regard to the delay there is, or is likely to be prejudice to the defendant; the extent to which the plaintiff acted promptly and reasonably once he knew that the Act or omission of the defendant might be capable of giving rise to an action for damages; and any steps taken by the plaintiff to obtain medical, legal or other expert advice.
By virtue of subsection (4) the Court has the power to extend the limitation period even though the application for extension is not made until the period has expired.
The plaintiff’s application is supported by his own affidavit and an affidavit by Mr Hamilton, his present solicitor. The plaintiff explains in his affidavit that the accident happened in circumstances where he had taken his son to the Accident and Emergency Department of the hospital and returned to his car while his son was being treated. It had been raining between the time when they arrived at the hospital and when he left to go back to his car. While walking down the footpath towards his car, he slipped and fell on a manhole. He noticed a large heap of soil that had been dropped on the side of the road, overlapping the pavement. He noticed, presumably after the fall, that the rain had washed wet dirt onto the manhole, which he concluded had been the cause of his fall. He obtained the name of a witness who had observed what had happened from inside the hospital building.
After his fall, he was taken back into the hospital and treated. He was later treated by other doctors. The day after the accident, he went to see a solicitor, Mr O’Neill at Tetlow Jansen & Doyle. It appears that Mr O’Neill was already acting for him in relation to an earlier injury claim. He instructed Mr O’Neill to act on his behalf for the purpose of bringing a personal injury claim against the hospital.
His evidence is that over a period of some four years, he saw Mr O’Neill from time to time. He gained the impression and believed that his claim was progressing appropriately. In about April 2005, another solicitor at the firm took over his matter. Towards the end of that year, at about the time that the firm changed its name, he saw yet another solicitor at the firm, Mr Gubecka.
Mr Gubecka told him that his matter was proceeding along its normal course and that proceedings were to be brought in the Supreme Court. I infer that Mr Gubecka told him about the limitation period. The plaintiff concedes that by the end of September 2006, he was aware that he had only a matter of weeks before the claim would be statute-barred.
In late September 2006 he was asked to come into the solicitor’s office to see Mr Gubecka. During the appointment, Mr Gubecka said to him words to the effect “I do not think that I am competent to run this matter for you. I think you should seek alternative legal representation”. The plaintiff says that this caused him considerable stress and disbelief.
He says that he approached the Legal Aid Office to obtain legal assistance. I infer from correspondence in evidence that by the time he had made an appointment to see a solicitor at the Legal Aid Office, it was mid-December 2006.
He was granted limited legal aid for the purpose of investigating and reporting in relation to the prospects of success of his proposed claim. He was ultimately advised by Legal Aid that they would not be proceeding on his behalf.
In November 2007 he approached his present solicitors, Slater & Gordon, and gave them instructions. Mr Hamilton of Slater & Gordon is now handling the matter and has had some involvement with it since November 2007. His explanation for the delay between November 2007 and the commencement of proceedings in June 2008 is a little unsatisfactory. It appears that the solicitors were waiting to hear from the Law Society about what action the Society proposed to take against Mr O’Neill, the solicitor the plaintiff first instructed in 2000.
I am not persuaded that any delay between December 2007 and the commencement of proceedings in June 2008 or the bringing of the present application in November 2008 is of any significance. The significance lies in prejudice to the defendant which was caused much earlier.
Calvary Hospital, at the time of the plaintiff’s fall, was insured by HIH Casualty and General Insurance Limited, a company which went into liquidation in August 2001, causing considerable hardship to many people and corporations who had been insured with it. The Commonwealth set up a relief package for people adversely affected by the liquidation of HIH. The relief package, as was made clear by public announcement by the responsible minister in August 2003, closed to new applications with effect from 27 February 2004.
I am satisfied that by that date the solicitors the plaintiff originally instructed had not written a letter of demand or letter before action to Calvary. The first such letter was written (probably by coincidence) about a month later, on 31 March 2004. It seems likely that neither the plaintiff nor the solicitors were aware of the significance of the HIH package closing date. Nevertheless, Calvary were advised by their brokers, and accepted, that they were uninsured against this claim and should conduct themselves accordingly. Calvary instructed the present solicitors acting on their behalf as defendant.
There is no suggestion that anything done by Calvary or by its solicitors amounted to an affirmation of any responsibility for the claim which might result in any postponement of the commencement of the limitation period. I am satisfied on the affidavit material that there are medical complexities about the claim, arising from a number of previous injuries and operative procedures undergone by the plaintiff, which would result in some prejudice to the defendant which might have been obviated or reduced if proceedings had been commenced some years earlier.
I am also satisfied that whilst proceedings could have been commenced up until 19 October 2006, well outside the closing date for the Commonwealth relief package for HIH, nevertheless once the limitation period expired the prejudice to the defendant by reason of the closure of the relief period crystallised, and that this would represent a real and substantial prejudice to Calvary if the period were to be extended.
I take account also of the fact that it would appear on the material before the Court on this application that the plaintiff has reasonable prospects of success in a claim against the solicitors who originally acted for him.
The principles to be applied by the Court in dealing with an application of this kind are well known and have been applied on many occasions in this Court, the leading authority being the High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Applying those principles it seems to me that this is a case where the exercise of the discretion to extend would be unfair to the defendant. The application for extension of time will be refused. The plaintiff is to pay the defendant’s costs of the application.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 5 December 2008
Counsel for the plaintiff: Mr WL Sharwood
Solicitors for the plaintiff: Slater & Gordon
Counsel for the defendant: Mr GA Stretton
Solicitors for the defendant: Minter Ellison
Date of hearing: 5 December 2008
Date of judgment: 5 December 2008
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