Struwe v Oldfields Pty Ltd

[2004] TASSC 66

[2004] TASSC 66

CITATION:            Struwe v Oldfields Pty Ltd [2004] TASSC 66

PARTIES:  STRUWE, Lloyd Martin
  v
  OLDFIELDS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  588/2002
DELIVERED ON:  21 June 2004
DELIVERED AT:  Hobart
HEARING DATES:  21 June 2004
JUDGMENT OF:  Underwood J

Edited reasons for judgment given orally

CATCHWORDS:

Limitation of Actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Principles upon which discretion exercised - Strong prima facie case – Explanation for delay – Absence of prejudice.

Limitation Act 1974 (Tas), s5(3).
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
           Applicant:  R M Grueber
           Respondent:  A B Walker
Solicitors:
           Applicant:  Ogilvie Jennings
           Respondent:  Dobson Mitchell & Allport           

Judgment Number:  [2004] TASSC 66
Number of Paragraphs:  13

Serial No 66/2004
File No 588/2002

LLOYD MARTIN STRUWE v OLDFIELDS PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J
(DELIVERED ORALLY)  21 June 2004

1. This is an application for an order pursuant to the Limitation Act 1974, s5(3), for an extension of time within which proceedings may be brought against the defendant.

1. The applicant is an electrician and was employed by what I might call his own company.  He was cross-examined on his affidavit and I can say that he impressed me as being an honest witness, doing the best he could to recall the relevant events.  His memory was not good in some respects, and where it was faulty, he showed a marked tendency to accept propositions put to him by his cross-examiner, ie, "would you dispute 3.2 metres was the length of the ladder?", "Well I accept that if you have it there". 

1. I will say at the outset that although the applicant said in his evidence that he was taking advice from Mr McTaggart about this accident between July and August 2000, I reject his evidence in this respect.  As Mr Walker fairly conceded, this part of the applicant's evidence is directly contrary to the implied evidence in pars1 – 3 of Mr McTaggart in his affidavit, and it is completely inconsistent with other parts of the applicant's affidavit and the rest of his oral evidence.  In my view, the likely explanation is that the applicant is simply mistaken as to the dates when he consulted Mr McTaggart.  There would be no reason for him to be speaking to two different lawyers about the same matter at the same time. 

1. The applicant suffered his accident on 25 August 1998 and consequently the time within which proceedings may have been brought as of right expired on 25 August 2001.  I do not place much reliance on the hearsay statement in par24 of the applicant's affidavit about what some unknown person said to him at K & D that the "defendant" had in turn said to this person about the ladder following the accident.  However, I do find that on 19 April 2002, when Mr McTaggart wrote to the defendant some eight months after time expired, the defendant became aware of all the circumstances surrounding the accident.

1. According to the material on the application, the accident happened when a ladder, manufactured by the defendant, buckled inwards whilst the applicant was stepping from it onto a flat roof.  From his evidence given in the witness box, I find that he was getting onto this flat roof in the same manner as persons get out of the swimming pool, namely, by putting his hands on the edge of the roof and then pushing his arms out straight, thus hoisting his body up so that about half of it was above the level of the roof.  The applicant was then just about to cock a leg over the edge of the roof when the ladder buckled inwards causing him to slip back.  He grabbed and was forced to cling on to the facia board on the edge of the roof.  This would have caused quite a jolt in his shoulder blade.  The evidence, which is unchallenged, was that about eight days after this accident, he and his wife went on a scheduled holiday.  During that time, he suffered two incidents of what he considered to be dislocation in his shoulder, never having suffered from such a problem before.  He and his wife returned from holiday on 27 September 1998, he complaining of pain in his shoulders.  It is significant that he saw a doctor in Hobart two days after his return from his holiday.  No submission was made that the applicant did not suffer some injury from this incident and I find that he did.

1. With respect to the issue of a prima facie case, it is my view that the applicant has made out a very strong prima facie case.  As I put to Mr Walker a little while ago, ladders just do not buckle like this unless there is something wrong with them, and it seems to me that on the evidence as it presently stands, that is sufficient to show a strong prima facie case.  What will happen after discovery, amendments, interrogatories, and the like, is another matter.  But I am satisfied there is a strong case made out.

1. With respect to the issue of prejudice, it seems to me that the defendant really has suffered very little prejudice by the passage of time.  In April 2002, the defendant was advised of the name, address and telephone number of the only witness to these events and presumably he has been interviewed by now, or certainly there was plenty of opportunity for that to have been done.  The damaged ladder is still available in its damaged state for inspection should the defendant wish to do so.  Although there will have been some general deterioration of the memories of the relevant events, due to the passage of time, it seems to me in the circumstances of this case, that such diminution is of very little moment.

1. So far as the injuries are concerned, the applicant claims to have suffered wide-ranging and diverse injuries, both physical and psychological.   Sometimes the passage of time hinders the proper resolution of a causal link between the tortious act and the injuries allegedly sustained as a result of it.  However, I think it can be inferred in this case that this is not a problem and that all the histories, the diagnoses, the treatment and so on are all well documented.

1. I am satisfied there is a strong prima facie case and there is no significant prejudice going to be occasioned by the passage of time, which is, of course, relatively short.

1. With respect to a reasonable explanation for delay, the applicant's affidavit and his evidence was that before the time expired, he was talking about the accident to a solicitor, Mr Readett, who was known to him socially.  Mr Readett made the applicant aware that there was a time limit within which proceedings might be brought as of right as provided by the Limitation Act, s5(3). The applicant deposed in his affidavit that prior to August 2001, he discussed the history of his symptoms with Mr Readett and he told him that there was a three year time limit. The applicant then deposed in par21 of his affidavit that he made a mistake as to the actual date of his accident. He said that he believed that the injury was sustained in October 1999 and not in August 1998 as was in fact the case. He was closely cross-examined about this. He said that he spoke to Mr Readett about the negligence of the defendant, as he felt there was no fault on the part of the company or himself. He said that when Mr Readett said to him "what are you going to do about this", he looked at his records and found that he had made a mistake about the date. The applicant told his cross-examiner that he decided to check his records when Mr Readett gave him, what he described as a stern warning, "what are you going to do about it". The applicant said, "I think Mr Readett said like 'Lloyd, the limitation is coming up, do something'."

1. I see nothing in the applicant's oral evidence that is inconsistent with his written deposition that he was mistaken about the date of the accident.  He thought he had more time.  His then adviser was pressing him to get on with it, one way or another.  He checked his records and found that he was mistaken as to the date.  According to par22 of his affidavit, within a month after time had expired, he had ascertained the error and spoken to Mr Readett about applying to extend the time within which proceedings could be commenced.  From this point in time there is a period of some six months, a little less than six months, but very close to it, before the applicant actually did anything to prosecute his application.  At the end of that six-month period, he consulted Mr McTaggart on a referral from Mr Readett.  Paragraph 23 of his affidavit states that this failure to act during this period was due to his physical condition, the continuing stresses, difficulties in dealing with legal matters and gathering the evidence that he had been advised would be necessary in order to support this application.  I do accept the submission of Mr Walker, who appeared for the respondent, that there is no medical evidence, or other satisfactory evidence, that any condition from which the applicant might have suffered could have caused him to have the difficulties that he relies upon in his affidavit, par22.  I have come to the conclusion that this period of six months after the applicant knew that he had to do something to get the time extended, and before he consulted Mr McTaggart, is largely unexplained.

1. This has given me pause as to whether, generally speaking, the discretion should be activated in his favour.  For the reasons I have given, there is a satisfactory explanation for the other periods of delay.  I have come to the conclusion that I should grant the order sought because, notwithstanding this defect in the application, the applicant has a very strong prima facie case, there is an absence of prejudice, particularly in the light of the fact that the only witness has been made available for interview, and the ladder is still in existence and can be examined and tested.  On balance, this overweighs the shortcoming of the unsatisfactory explanation for that six-month period to which I have referred. 

1. For those reasons, I am satisfied that the application should be granted.  There will be an order that the time within which the plaintiff may bring proceedings against the defendant for damages for personal injuries suffered by him on or about 25 August 1998, be extended to 12 October 2002.