Trenowden v Toyota Motor Corporation Australia Ltd & Anor No. Scciv-03-75

[2003] SASC 265

TRENOWDEN v TOYOTA MOTOR CORPORATION AUSTRALIA LTD & ANOR

[2003] SASC 265

Full Court: Bleby, Besanko and Sulan JJ

1. BLEBY, BESANKO AND SULAN JJ         On 19 June 2003 a Judge of this Court dismissed an appeal by the present applicant from a decision of a magistrate dismissing the applicant’s claim for damages for personal injury.  The application for leave to appeal was made on 4 July 2003, one day out of time.  In the absence on leave of the Judge who heard the appeal, the application for leave was incorrectly set down for hearing before the chamber Judge who, on 18 July, declined to deal with the matter on the grounds that he was precluded from doing so by reason of r 94.01 of the Supreme Court Rules.  That requires the application to be made to the Judge appealed from or to the Full Court.

2. The applicant now seeks to have the application determined by the Full Court pursuant to r 94.01(1)(b)(ii) of the Supreme Court Rules.  At the request of the applicant the application has been considered privately by the Full Court in accordance with r 94.03(c).

3. With the documents required to be lodged by r 94.03 and Practice Direction 13A there was what purported to be a separate application made to the Full Court bearing a much later date.  No such application has been filed.  We ignore that “application” which is not necessary, as the original application has not been resolved.  It is the original application which should have been included in the documents lodged for consideration by the Full Court.  We are prepared to treat that application as the application before the Full Court. 

4. There is also an application for an extension of time in which to make the application.  As the extension required is only one day, as the cause for the delay would appear not to be that of the applicant, and in view of the ultimate fate of the application, we are prepared to grant, on this occasion, an extension of time within which to make the application without hearing the respondent.  The time for bringing the application will be extended to the date on which it was filed, namely 4 July 2003.

5. Before leaving that topic, we cannot but observe that an identical application was made by the same solicitor in another matter for another applicant in identical circumstances.  In each case an affidavit in relevantly identical terms was filed.  The explanation, in each case, for the failure to comply with the time limit was as follows:

   “The reason for the delay was in the time taken to obtain instructions and to prepare and file an affidavit of merit.  It took sometime to draft a (sic) prepare the affidavit given that it included legal argument.”

6. If the application had been made to the Judge who heard the appeal (r 94.01(1)(b)(i)) no affidavit would have been required other than perhaps an affidavit indicating the grounds of the intended appeal.  As the application was referred at the applicant’s request for hearing privately by the Full Court (r 94.01(1)(b)(ii)), it only required the lodging of the documents required by r 94.03 and Practice Direction 13A.  That did not include “an affidavit of merit”.

7. The affidavit in support of the application for extension of time is inadequate as a purported explanation for the delay in complying with the Rules.  We can only infer that the solicitor takes the view that time limits provided by the Rules have little or no consequence, and that an extension of time, if necessary, will be granted as of course if the solicitor handling the matter gives the impression of being busy.  We would wish to dispel any such view.  Time limits prescribed by the Rules are to be observed.  There was nothing out of the ordinary about this application for leave to appeal.  There is no reason why the application should not have been made within the time allowed by the Rules. 

8. It would appear to us that if the applicant’s solicitor had read the relevant Rules and Practice Direction and had made an effort to comply with them, neither the “affidavit of merit” nor the application for an extension of time would have been necessary.  We would wish to hear why the costs of preparing that affidavit and the costs of and incidental to the application for extension of time should not be disallowed as between solicitor and client pursuant to r 101.06(1)(a).

9. The claim for damages arose out of an injury to the applicant’s right leg alleged to have been caused by contact with a lever at the front of a bucket car seat used for adjusting the seat backwards and forwards.  The vehicle concerned was a 1988 Toyota Tarago Wagon.  The seat was adjacent to the side-opening sliding door of the vehicle.  The applicant alleged that the injury occurred as she was getting into the vehicle through the doorway when her leg made contact with the lever, causing the injury. 

10. The lever was angled in an upward direction so that the end of the handle inclined towards the sliding door.  It did not protrude beyond the front edge of the seat when the seat was in the forward position, but when pushed back as far as it could go, there was a slight protrusion of about 5mm from the front edge of the seat.  The metal rod comprising the lever was approximately 10mm in diameter, on which was fitted a moulded plastic handle about 12-15mm in diameter.  The end of the handle had a flattish surface with round edges.  The factual issue in the case was whether the injury was caused as alleged by the applicant.

11. There was uncontested medical evidence before the magistrate that the lever was most unlikely to have caused an injury of the nature described by the applicant.  The magistrate did not accept the reconstruction of the events described by the applicant and her friend who assisted her.

12. The Judge on appeal noted that the appeal was by way of re-hearing and that he was required to reach his own view of the case by way of independent assessment of the evidence, after giving due weight to the advantage of the magistrate in hearing and seeing the witnesses.  After analysing the magistrate’s conclusions and all the relevant evidence, including that relied on by the applicant before us, the Judge concluded that the applicant did not establish, on the balance of probabilities, that the lever caused the injury. 

13. The Judge’s approach cannot be criticised.  That conclusion was plainly open to him, as it was to the magistrate.

14. However, his Honour went further and held that even if it were assumed that the injury was caused by contact with the lever, he was not satisfied that the applicant could establish a breach of the duty of care owed by the respondents as manufacturer and distributor of the vehicle.  There was evidence going to the relevant Australian vehicle manufacturing standards with which the vehicle complied.  The Judge considered that the manufacturer had acted reasonably in the design and location of the lever, and that it could not be said that an injury of this type was reasonably foreseeable.  In our opinion, that conclusion was also open to the Judge.

15. As the Chief Justice, with whom Williams and Wicks JJ agreed said in Stokolosa & Anor v Weeks Peacock Quality Homes Pty Ltd [2000] SASC 334 at [5]:

    “The court’s practice has been to grant leave to appeal only if a question of general principle arises, and usually the court considers also whether there is reason to doubt the correctness of the decision under consideration.  However, in the end the court must act as the interests of justice may require.”

16. No point of general principle arises in this case.  There is no reason to doubt the correctness of the Judge’s decision.  There are no other reasons which justify the grant of leave.  We refuse leave to appeal.