Triffitt v Gleeson
[2001] TASSC 61
•31 May 2001
[2001] TASSC 61
CITATION: Triffitt v Gleeson & Anor [2001] TASSC 61
PARTIES: TRIFFITT, Clinton Howard
v
GLEESON, Karen Anne
McCULLOCH, James Norman
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 404/2000
DELIVERED ON: 31 May 2001
DELIVERED AT: Hobart
HEARING DATE: 24 May 2001
JUDGMENT OF: Master Holt
CATCHWORDS:
Limitation of Actions - Extension of time - Prejudice - Action based on motor vehicle accident six years prior to the issue of the writ.
Limitation Act 1974 (Tas), s5(3).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: B R McTaggart
Defendants: S J Cooper
Solicitors:
Plaintiff: Jennings Elliott
Defendants: Temple-Smith Barclay
Judgment Number: [2001] TASSC 61
Number of paragraphs: 10
Serial No 61
File No 404/2000
CLINTON HOWARD TRIFFITT v
KAREN ANNE GLEESON and JAMES NORMAN McCULLOCH
REASONS FOR JUDGMENT MASTER HOLT
31 May 2001
The plaintiff makes application pursuant to the Limitation Act 1974, s5(3) for an extension of the time within which to commence proceedings claiming damages for personal injuries arising out of a motor vehicle accident on 29 June 1994. The writ issued on 6 June 2000. No statement of claim has been delivered. The circumstances in which the plaintiff alleges the accident occurred are set out in his affidavit. The plaintiff was travelling along the Bass Highway in the west bound lane towards Smithton at about 9.50am. He was following two trucks. He pulled out into the east bound lane and commenced an overtaking manoeuvre. In the course of the manoeuvre, he noticed that the second defendant, the driver of the leading truck, was slowing down. There was a junction ahead. He could not tell whether the truck driver intended to turn right at the junction "as the truck's indicator light were [sic] covered in fertiliser". He decided to abort the overtaking manoeuvre and applied his brakes. He was hit from behind by a following vehicle being driven by the first defendant whilst he was still in the east bound lane.
Counsel for the defendants conceded that the plaintiff's claim was viable and did not assert that any specifically identifiable prejudice results from the delay. The grant of the extension, however, was opposed on the bases:
(i)That having regard to the circumstances of the accident; the nature of the injury alleged and the lengthy delay the quality of justice that can be afforded at the trial is likely to be deteriorated through the effluxion of time; and
(ii) The plaintiff is at fault in the delay.
As to general prejudice, it is necessary to look ahead at the sort of issues which might reasonably be contemplated to arise at trial and the nature of the evidence which, in the normal course of things, would be presented to address the issues. Relevant questions are likely to include:
· About how fast was the plaintiff travelling immediately prior to applying his brakes?
· About how fast and how far behind the plaintiff was the driver behind travelling at the time the plaintiff first applied his brakes?
· About how fast were the trucks travelling when the plaintiff applied his brakes?
· Did the plaintiff brake more sharply than was necessary for the occasion?
· Had the immediate danger of the truck turning right across the path of the plaintiff's vehicle ended prior to the collision?
· If the immediate danger had ended, did the plaintiff continue to decelerate rapidly, notwithstanding that the need to do so had passed?
· Was the plaintiff aware of the vehicle behind him shortly prior to the collision?
· Was the junction far enough away and the road sufficiently clear for the overtaking manoeuvre to have been safely completed rather than the brakes applied?
· If so, was the plaintiff's conduct in braking none the less excusable in the agony of the moment?
· Was the indicator lamp on the truck sufficiently dirty to cause reasonable apprehension on the part of the plaintiff that the indicator lamp may have been switched on but not visible?
· Had the substance which was obscuring the indicator lamp been there for just a few moments prior to the accident or for some time prior to it?
· Did the driver of the truck notice the substance on the indicator lamp prior to the accident, and if not, ought he have noticed it and dealt with it prior to the accident?
· Was the plaintiff aware, or should he have been aware of the existence of the junction ahead?
· Was it safe for the plaintiff to commence the overtaking manoeuvre in the vicinity of the junction?
· Was the accident the result partly of the plaintiff's own fault, and if so, to what extent?
The parties' and any other witnesses' recollections of the circumstances in which the accident occurred will constitute much of the evidence at trial. The frequently referred to passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 warrants repetition in the circumstances of this case. He said at 551 and following:
"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates.' Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
Witnesses' recollections may be assisted by documents created at around the time of the accident containing their statements of what occurred or other information about the circumstances. The defendants have not said that assisting documentation is not available, nor that their recollections or those of their witnesses have been materially diminished by the effluxion of time. In their joint judgment, Toohey J and Gummow J said in Brisbane South Regional Health Authority v Taylor (supra) at 547:
"There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion."
The fact, however, that the defendants do not complain of failing recollections does not mean that their ability to respond to the claim has not been prejudiced by the delay. As explained by McHugh J in Brisbane South Regional Health Authority v Taylor (supra), it would be rare for a person to be able to say that an important detail exists which, although once remembered, has now been forgotten by him and his witnesses. In addition, the plaintiff might have forgotten a material circumstance in which the accident occurred, potentially diminishing the defendants' chances, through cross-examination, of adducing evidence in support of a plea of contributory negligence. For example, exhibited was a report from consultant neurologist Dr Stan Siejka dated 25 May 2000 in which Dr Siejka said of the plaintiff in referring to the motor vehicle accident, "He is uncertain of the speeds."
The plaintiff, since childhood, has had a history of low back ache on and off. Dr Siejka, after saying that he first saw the plaintiff in February 1999 and that the plaintiff did not mention the accident to him until May 2000, opined:
"This patient is suffering from lumbar spondylosis which is a degenerative condition of the lumbar spine which I believe was present prior to his accident. … I believe the impact has led to an aggravation probably in the order of 10% or so to what would have been present if the accident had not occurred, although there is no way of being definite about it. Therefore, I think that one would have to say on the balance of probabilities, the accident has in fact aggravated his condition which has led to him having to stop work because of the constant nature of the pain and other symptoms."
Although not referred to in Dr Siejka's report, the following information was contained in the plaintiff's affidavit:
"24… My major health problem had occurred in early February 1993 when I suffered a mini-stroke.
25I was in hospital in Burnie for about 1 week and off work for about a month. I had a further episode in about November 1993 which resulted in hospital admission for 1 week.
…
28From after the accident I found that I had a tightness in my back towards my shoulders. At the time I did not regard it as serious. I had a numbness in my right leg and did not feel 100%.
29I noticed it particularly after I started working back at Ashley at the beginning of 1997. …
30I found that I was not able to do the things I used to, such as kicking a football with the juvenile detainees or generally doing things with them. My back was giving me problems but not enough to stop work.
31I tried to manage my back pain with exercises and by myself. I did not relate the pain to the accident. I thought it probably had something to do with the strokes I had suffered and I would just have to live with it.
32During late 1997 and into 1998 my back deteriorated. On a couple of occasions at Ashley I had twinges of serious pain doing simple things like getting up, opening a door or moving.
33I found the problems were worse when I was in a stressful situation. I sometimes felt weak in the legs.
34I put this down to complications from my stroke. In 1998 I also had concern about some lumps in my back and ribs which were causing me pain. I attended the Latrobe Hospital where the lumps were removed."
The plaintiff was not seriously injured at the time of the accident. His car remained driveable and after the accident on 29 June 1994, he drove it to Smithton. On arrival he presented at the Smithton Hospital from where he was referred to a general practitioner who certified him unfit for work for one day. He saw his own general practitioner on 2 July, who certified him to be unfit for work until 4 July. He returned to work on 5 July on light duties for three months. He then returned to normal duties and apparently only commenced to experience significant back pain in 1997 upon being reassigned by his employer to work at the Ashley Detention Centre. I do not know the extent to which the plaintiff's back symptoms have been documented between a time shortly prior to the stroke being suffered in February 1993 and the present. The first attribution of the plaintiff's current complaints (albeit in part only) to the motor vehicle accident which I have been made aware of is contained in the report of Dr Siejka of 25 May 2000. It may well be that medical opinion in the case will be based in part on the history of symptoms which the plaintiff's recollection now enables him to give. An event, injury or symptom which at the time may have appeared to the plaintiff to be insignificant may have been medically material and forgotten. There must be a real chance that the precision with which the plaintiff is now able to describe historical events and symptoms has been diminished because of the passing of time. As the accident occurred during the course of the plaintiff's work, he did not apply to the Motor Accidents Insurance Board for scheduled benefits. There is no suggestion that the plaintiff has ever been medically examined on behalf of the Motor Accidents Insurance Board and so presumably, besides that which has been documented, a medical practitioner appointed by the Board will be limited in ascertaining a relevant history by what the plaintiff is currently able to remember.
As indicated earlier, counsel for the defendants also submitted that fault for the delay should be attributed to the plaintiff. At the time of the accident, the plaintiff was employed by the Department of Community and Health Services as a youth justice worker. His duties included attending the Children's Court and preparing and submitting, where requested, reports to the court. He had frequent contact with people with legal training and had knowledge that in some types of proceedings time limits applied. He did not know whether time limits applied to personal injuries claims and made no enquiries about the matter until the issue was raised by a solicitor he was consulting on another matter between about May and September 1999. The plaintiff, until that time, had not contemplated bringing an action for damages for personal injuries arising out of the motor vehicle accident as he had not attributed his back complaints to the motor vehicle accident. In May 1999, he had to retire from his employment on the grounds of ill health because of the condition of his back. He was then aged 54 years. Prior to his retirement, he had apparently suffered no significant financial detriment as a result of his back condition. He did not act on what the solicitor had told him immediately because he was "struggling financially". He consulted a new solicitor in November 1999. In December 1999, he received a letter from his solicitor advising of the three year time limit for the commencement of proceedings and the discretion of the court to extend that period for up to a further three years. He was told in the letter that any application for an extension of time should be supported by medical evidence attributing his on-going back troubles to the motor vehicle accident. He was told that the cost of obtaining the report was likely to be in the vicinity of $600. The plaintiff was concerned about the cost of obtaining a report and the potential cost of litigation and so sought a second opinion from another solicitor in early 2000. In April 2000, the plaintiff instructed his solicitor to request a report from Dr Siejka. That report was obtained in late May 2000 and a few days later, the writ issued.
The plaintiff has a history since childhood of back pain. He suffered from a stroke in 1993. Although the motor vehicle accident caused back and neck pain, the plaintiff was able to return to work on light duties about a week later and to resume normal duties after three months. There was no significant deterioration until 1997, when the plaintiff was reassigned to the Ashley Detention Centre. It is understandable that the plaintiff did not link his on-going health problems to the motor vehicle accident and so had no cause to consider bringing an action for damages for personal injuries. The plaintiff cannot be characterised in the circumstances as having been dilatory, prior to a solicitor canvassing the possibility of a claim with him between about May and September 1999. Progress since that time has been slow but that is understandable in the context of the plaintiff's altered financial circumstances upon his retirement.
It has been conceded that there is an arguable case against one or both defendants. No specific prejudice has been identified and the delay has, in my opinion, been satisfactorily explained. The fact remains, however, that the proceedings were not commenced until the expiration of almost six years following the accident. The ascertainment of the precise circumstances in which the accident occurred and the attribution or apportionment of responsibility for it is likely to be dependent on the quality of the recollections of the parties and witnesses. Similarly, whether and to what extent the plaintiff's current symptoms can be attributed to the accident is likely to be dependent to some extent on the quality of the history the plaintiff is now able to provide to medical practitioners. There is a real possibility that the effluxion of time has materially diminished the quality of the justice which might now be achieved at trial. There is a real possibility that such a deterioration will work to the disadvantage of the defendants. When I weigh the factors favouring the grant of an extension (namely the existence of an arguable case, an understandable explanation for the delay and the absence of specifically identifiable prejudice) against this, I remain unpersuaded that the justice of the case rests with granting the extension.
The application will be dismissed.
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