Toppin v Coles Meyer Ltd and McVean

[2007] NSWDC 256

Reported Decision: 6 DCLR (NSW) 41

District Court

CITATION:	TOPPIN v COLES MEYER LTD & McVEAN [2007] NSWDC 256
HEARING DATE(S):	6/11/07
EX TEMPORE JUDGMENT DATE:	6 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. I grant leave to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day’s affidavit of 30 October 2007 ; 2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007; 3. The respondent is to pay the plaintiff’s costs of the motion.
CATCHWORDS:	Whether proceedings statute barred - Date of discoverability
LEGISLATION CITED:	Limitation Act 1969
PARTIES:	Robert John TOPPIN COLES MYER LTD Gary McVEAN
FILE NUMBER(S):	Wagga Wagga 11/07
COUNSEL:	Plaintiff - I D Roberts SC - R J M Foord Defendant - B S Kelly
SOLICITORS:	Plaintiff - Denniston & Day Defendant - McCulloch & Buggy

JUDGMENT

1 The plaintiff seeks leave to join Gary McVean as a defendant in the proceedings. The plaintiff does not pursue the orders sought in paragraph 1(a) of the amended notice of motion filed on 30 October 2007.

2 The proposed second defendant opposes the application arguing that the proceedings are statute barred by reason of the provisions of Division 6 of the Limitation Act 1969. Those provisions require the commencement of proceedings within three years of the date upon which the cause of action which is the basis for the claim is discoverable. In this case the incident involved a slip and fall in the Coles Supermarket in Russell Street, Tumut, on 14 February 2004.

3 The plaintiff in his affidavit of 22 October 2007 states that he had entered the front doors of the supermarket, walked across a mat immediately inside the door and was walking in the direction of a checkout counter when he slipped on vinyl floor and suffered an injury to his right knee. He alleges that there was water on the floor in the area in which he had slipped.

4 He was cross-examined on his affidavit today and stated that he was told by the first defendant’s staff at the time of his injury that they did not know how the water came to be on the floor. The second defendant, it is alleged, is engaged by way of contractual arrangement by the first defendant.

5 The plaintiff stated that he was aware that the first defendant worked at the supermarket collecting trolleys. He was unaware that he was involved in any cleaning work but he says that he did see him on the day of his injury, hosing down a wall about forty metres away from where he fell.

6 The plaintiff’s evidence is that as far as his injury was concerned he went to Tumut Hospital after the accident. He was treated. He consulted with his general practitioner and was referred to a specialist, Dr Redgment. An MRI was taken in February.

7 By 13 March 2004 his knee was considerably improved and Dr Redgment told him that he should make a full recovery. He returned to work in April 2004 and continued to work. In mid to late 2004 his evidence is his knee started to interfere with his capacity to work and by the end of 2004 he had to reduce his hours of work.

8 At that point he realised that he was not going to make a full recovery and he first consulted his solicitor in December 2004. It was at that point that he considered the injury sufficiently serious to take advice concerning an action against the first defendant.

9 In July 2006 the first defendant supplied his solicitors with an incident report form which is exhibited to the plaintiff’s affidavit. This, according to the plaintiff, was the first time that he had been informed that the proposed second defendant was a contractor to the first defendant and the first time that he understood that the first defendant was alleging that the proposed second defendant was involved or might have been responsible for the presence of the water on the floor of the supermarket.

10 The issues for determination arise out of s 50D(1) in determining when a cause of action is discoverable. It requires a finding that the plaintiff knew or ought to have known of certain facts. As far as the term ought to have known is concerned, ss 2 requires that I apply a standard of a person taking all reasonable steps to ascertain the facts involved.

11 Subsection 1(a) is not relevant to today’s determination. As far as ss 1(b) is concerned it is necessary to determine the time at which the plaintiff ought reasonably to have known of the fact that the injury was caused by the fault of the proposed second defendant. In this respect it is argued for the proposed second defendant that the plaintiff ought to have undertaken a greater level of inquiry at the time of the incident in order to determine precisely how the water came to be on the floor.

12 In my view, given that the plaintiff at that time was informed that the first defendant’s staff were unaware of the source from which the water came, it would not be reasonable to ask a person in the plaintiff’s position to make further inquiry particularly in respect of a person working with a hose some distance from the point at which he fell.

13 Subsection 1(c) also comes into question and that is the time at which a reasonable person ought to have known that the injury was sufficiently serious to justify the bringing of an action on the cause of action. In this case it was pointed out that the plaintiff was unable to work for a period of about eight weeks after the accident. On the basis of his income as stated this would have cost him around $3,200 gross and it is said that this loss justifies the bringing of an action.

14 I do not accept that s 50D(1)(c) applies to circumstances which would entitle a person to bring an action. The word used is justify and in my view this requires the consideration of circumstances which suggest that having regard to the time and cost involved in bringing a claim for personal injuries the level at which compensation might be expected to be awarded was sufficient to justify bringing the claim.

15 The plaintiff’s evidence was that he realised towards the end of 2004 that his injury was sufficiently serious in that he would not fully recover from it and at that stage he sought legal advice.

16 In my view the date upon which the cause of action in this case was discoverable was, at the earliest, in the latter part of 2004 and that is after 1 August 2004. It may well be that, having consulted his solicitor in December 2004, an inquiry concerning an incident report form might reasonably have been made earlier, but that does not affect the ultimate outcome.

17 In the circumstances I am satisfied that the action was brought within time when it was commenced on 1 August 2004.

18 The respondent to the application argues that notwithstanding that its argument in respect of the joinder of Mr McVean has failed, it should receive the benefit of an order for costs.

19 In support of the application for costs the plaintiff has provided me with a copy of a letter from Moray & Agnew of 2 October 2007 to Denniston & Day setting out what was said to be Mr McVean’s position in respect of the allegations made against him. There was no evidence put before the court of any of those matters in respect of the application.

20 The plaintiff has succeeded on the application and in my view there is no reason to depart from the normal rule in this case that the unsuccessful party meet the costs.

1. I grant leave to the plaintiff to join Mr Gary McVean as a defendant in the proceedings by the filing of an amended statement of claim in the form attached to Mr Day’s affidavit of 30 October 2007.

2. The amended statement of claim is to be filed and served by not later than 4pm on 13 November 2007.

3. The respondent is to pay the plaintiff’s costs of the motion.

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