Warren v Nominal Defendant No. DCCIV-96-437 Judgment No. D3568

[1997] SADC 3568

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge David

Hearing

17/02/97 to 20/02/97.

Catchwords

LIMITATION OF ACTIONS - LIABILITY Plaintiff passenger in accident in 1978 - Nominal Defendant - Nominal Defendant contacted 1995 - extension of time granted - damage to left arm - unable to work in heavy lifting jobs - pain and suffering $30,000.00- past economic loss $30,000.00 - no future economic loss; 18 year old female unemployed; Permanent disability; Past economic loss $30,000.00; Past non-economic loss $30,000.00; Interest $3,712.50

Representation

Plaintiff Wayne Stephen Warren:
Counsel: Mr. G. Britton - Solicitors: Aboriginal Legal Rights Movement Inc.

Defendant The Nominal Defendant:
Counsel: Mr. A. Phelps - Solicitors: Piper Alderman

DCCIV-96-437

Judgment No. D3568

14 March 1997

(Civil)

WARREN V THE NOMINAL DEFENDANT

D3568

Civil Jurisdiction

His Honour Judge David

The plaintiff in this action is a 37 year old Aboriginal male who was born on or about 13th October 1958.

On 4th August 1978 he was a passenger in a Ford Utility driven by a person named Robert Anthony Stewart.The plaintiff was sitting in the front of the Utility with the driver and another man when it was travelling into Marree on a dirt road and according to the plaintiff, swerved as if to dodge a pothole and flipped over.The vehicle was not fitted with seatbelts and the plaintiff had been drinking, as had the driver, prior to setting off on their journey from a place which was 2 miles south of Marree at which they had been drinking.

After the accident the plaintiff went to the Marree Hospital and from there to the Leigh Creek Hospital and eventually to the Whyalla Hospital.He stayed in the Whyalla Hospital for 16 weeks having suffered severe damage to his left arm which required a skin graft taken from his left leg. On the evidence before me he had three operations on his left arm and the strength of that arm was decreased permanently.I will return in more detail to that aspect of the evidence when I discuss the question of damages.

At the time of the accident the plaintiff had been working for a Mr. Dave Miller, who gave evidence, at Marree and also with the Australian National Railways for about 12 months.The work that he performed for both Dave Miller and the Australian National Railways involved heavy lifting and I heard evidence that he was not able to do such work after the accident.He could do lighter work but in 1983 his physical condition was such due to hypertension and diabetes that irrespective of his left arm he would not have been able to do any heavy lifting work from about 1983 onwards.

The plaintiff gave evidence of the fact that after the accident he did not see any lawyer until 1995 when he spoke to a Mr. Oates from the Aboriginal Legal Rights Movement about another accident which happened in 1992 and during that interview the topic of his arm was mentioned.As a result Mr. Oates sent him to see a doctor, Mr. Patkin, who prepared two reports concerning the damage to his arm, the contents of which were made known to the plaintiff.Within 12 months of ascertaining the knowledge about the damage to his arm these proceedings were issued.The plaintiff therefore seeks, pursuant to Section 48 of the Limitation of Actions Act, an extension of time which to bring these proceedings.I now turn to that question.

Application for extension of time pursuant to Section 48 of the Limitation of Actions Act

Pursuant to Section 36 of the Limitation of Actions Act 1936-75 an action for damages which includes damages in respect of personal injuries must be commenced within 3 years after the cause of action accrued.In the present case the action was not commenced until the filing of a Statement of Claim on 9th February 1996.However a general power is given to extend periods of limitation by Section 48 of the same Act.I set out Section 48 in full.

"General power to extend periods of limitation

48. (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for-

(a) instituting an action; or

(b) doing any act, or taking any step in an action; or

(c) doing any act or taking any step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

(2) A court may exercise the powers conferred by this section in respect of any action that-

(a) the court has jurisdiction to entertain; or

(b) the court would, if the action were not out of time, have jurisdiction to entertain.

(3) This section does not-

(a) apply to criminal proceedings; or

(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied-

(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or

(ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,

and that in all the circumstances of the case it is just to grant the extension of time.

(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.

(5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings.

(6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law."

The plaintiff called Rodney Oates and tendered by consent correspondence by the plaintiff's solicitor in relation to the present matter (Exhibit P16).Mr. Oates gave evidence that he is a qualified legal practitioner who was admitted to practice in December 1990.On 18th April 1995 he commenced employment at the Aboriginal Legal Rights Movement at Port Augusta in their civil section. He took over a file in respect of the plaintiff concerning an accident in 1992 and because of the paucity of information on that file he wrote a letter to the plaintiff on 26th April 1995 asking him to make an appointment.The plaintiff came to see Mr. Oates on 7th June 1995 and at that meeting after discussion about the 1992 accident discussion commenced about the injury to his arm and the accident that caused it.As a result of that discussion, Mr. Oates wrote to the Whyalla Hospital asking for details and as a result of his inquiries he discovered that a Mr. Michael Patkin was a general surgeon working at the Whyalla Hospital at the time of the accident.As a result of further inquiries and investigations Mr. Oates wrote to Mr. Patkin and obtained two medical reports one dated 17th July 1995 and the other dated 18th August 1995.The report of 18th August 1995 was in far more detail.Both reports were tendered and became part of Exhibit P1.Having received those reports he arranged to see Mr. Warren on 7th September 1995 which he did.At that meeting Mr. Oates read to Mr. Warren the detailed report of 18th August 1995 and in particular he remembers reading to him Mr. Patkin's opinion concerning loss of function and permanent disability to Mr. Warren's left arm.It was said in the report that there was possibly a 20% loss of strength in the plaintiff's left arm.I am satisfied that Mr. Oates clearly read that opinion and passed that information on to Mr. Warren the plaintiff.From that stage onwards Mr. Oates was instructed to proceed further in a claim for damages for the accident and I am satisfied on the information presented to me that he did so competently and with alacrity.

It was ascertained and it has been agreed for the purpose of these proceedings that the Utility driven by Mr. Stewart was unregistered and uninsured at the time of the accident and accordingly Mr. Oates wrote to the Nominal Defendant on 6th July 1995.

It has also been agreed by the defendant that the passing on of the information contained in Mr. Patkin's reports from Mr. Oates to the plaintiff satisfies the threshold test for an extension of time as set out in Section 48(3)(b)(i). However the defendant argues that in the exercise of my discretion I should not extend the time because it is not just to do so.

On the issue of the application for the extension of time the defendant called Mr. Peter John Moller.At the time of the accident he was stationed as a Police Officer at Marree.He gave evidence that he could remember the accident in question and in fact went to the scene.Understandably he could not remember all of the detail. He could remember the fact of an injury to Mr. Warren and he described Mr. Warren's left arm as being "badly mangled".He drove the plaintiff to the Leigh Creek Hospital after the accident and gave evidence that either he or another Police Officer prepared a Police Report in relation to the accident.Having initially given evidence and after he was released, upon application by the defendant he was recalled to give further evidence about a conversation which he says took place with the plaintiff some months after the accident.I allowed Mr. Moller to be recalled to give that evidence.He said, and I accept his evidence, that during a short conversation about the plaintiff's arm he suggested that the plaintiff seek legal advice to see whether it was possible to do something.There was only one conversation according to Mr. Moller on that topic.Mr.Moller also gave evidence that in 1978 in Marree there was no solicitor from which the plaintiff could get legal advice and there were no Aboriginal Legal Rights Field Officers present at Marree and in fact there was only one in Port Augusta.

The plaintiff's evidence is that he cannot remember whether he spoke about the topic at all and in the absence of any evidence to the contrary I accept what Mr. Moller said about the existence of such a conversation.I find that the plaintiff had very little knowledge of the right to sue for damages until he saw Mr. Oates in 1995.I found him to be a truthful witness and if it is important to the exercise of my discretion, the fact that the local Police Officer might have advised him to get legal advice on one occasion is of little significance in the context of all of the events.I am of the view that the fact that he was uneducated, living in a part of South Australia remote from lawyers and general advice as to legal matters should not prejudice him when it comes to the exercise of my discretion.

Mr. Phelps, for the defendant, argued that my discretion should be exercised in favour of the defendant for a number of reasons.As propositions for the appropriate criteria which must be used in the exercise of my discretion, he cited the cases of Brisbane South Regional Health Safety Authority v Taylor 139 ALR 1; Forbes v Davies 1994 ATR 61,392; Ulowski v Miller 1968 SASR 277 and Lovett v Le Gall 10 SASR 479.From the above authorities it appears that there are eight criteria which I must follow in the exercise of my discretion once the threshold test has been satisfied.The matters that are to be taken into account are:-

i. The length of the delay.

ii. The explanation for the delay.

iii. The hardship to the plaintiff if the action is dismissed and the cause of action left statute barred.

iv. The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay.

v. The conduct of the defendant in the litigation.

vi. The conduct of the plaintiff.

vii. The nature, importance and circumstances surrounding the ascertainment of the new material facts.

viii. The extent having regard to the delay that the evidence is likely to be less cogent than if the action had been brought within the time allowed.

It appears as though (viii) is really an extension of (iv) namely prejudice to the defendant if the action is allowed to proceed notwithstanding the delay.I have considered all of those criteria very carefully.It is obvious that the length of delay is great and in many cases there will be clearly actual prejudice and indeed presumed prejudice because of such delay.The explanation for the delay appears to be due to the ignorance and remote life style of the plaintiff in not realising the significance of the injury which he suffered and the rights he had in relation to the accident.It is true that the evidence of Mr. Moller was that he mentioned to the plaintiff some years after the accident that he should see a lawyer.However having observed the plaintiff I find that that short conversation would not have cured his lack of knowledge of his rights because of his state of education and the remoteness of his existence in Marree.

The third criteria, namely the hardship to the plaintiff, speaks for itself since he has suffered a significant injury to his left arm.The main thrust of the defendant's submissions on extension of time was concerned with prejudice to the defendant if the action were allowed to proceed.I will address that shortly.

There can be no criticism of the conduct of the defendant in the litigation and I find there can be no criticism of the conduct of the plaintiff.The important nature of the ascertainment of the newer material facts is obvious since it was for the first time on the hearing of those facts that the plaintiff knew of the extent and the nature of his injury.As I have said the eighth factor, namely the cogency of the evidence due to the delay is linked to matters to be decided in relation to the fourth head, namely prejudice to the defendant.I now wish to turn to that.

Mr. Phelps, for the defendant, in his thorough and earnest argument put to me a number of examples of actual prejudice which the defendant has suffered by the delay.He urged that such examples of prejudice amounted to an inability of the defendant to have a fair trial.I point out at the outset that the inability to call the driver of the Utility is not a factor which the defendant relies upon in urging that there is actual prejudice.It is clear that the driver, Mr. Stewart, was in fact contacted by the defence but has since disappeared.That fact was agreed between the parties.There appears to be no dispute that his absence as a witness was not due to the delay but was a factor which could have arisen no matter when the trial was held.Mr. Phelps relied upon the inability of the defendant to obtain employment records from Mr. Miller who was at one time the plaintiff's employer.Also there was a lack of detailed evidence due to the delay from his employer the Australian National Railways about occasions when he was absent from his job.Generally speaking it was claimed there was prejudice due to the lack of ability of the defendant to probe in detail that part of the plaintiff's claim which amounts to economic loss.I find that argument not to be attractive.The plaintiff in his evidence provided very little detail by way of past economic loss and indeed by the way the case has been presented there is little if any claim for future economic loss due to the fact that the injury to the plaintiff's arm has been overtaken by hypertension and diabetes, such conditions having no cause or connection with the accident.I find the lack of detail about which the defendant complains could have very little effect on my assessment of damages.

Mr. Phelps also claimed prejudice in relation to the inability of the defendant to obtain statements from witnesses at the time.This involves an ability for the defendant to obtain statement of witnesses from court records.As I understand the argument if they had obtained those statements it would have provided material with which to cross-examine the plaintiff.In many cases there might be a great deal of force in what the defendant argues.However in this case there is clear evidence before me of the fairly uncomplicated nature of the accident.It is clear that the plaintiff was a passenger in a car and that car while travelling on a dirt road rolled over.It is clear that the plaintiff was affected by alcohol and that there were no seatbelts fitted in the Utility.It is clear that he had his hand out of the window holding the top of the roof when the accident happened.It is difficult to see how further statements from other people in the Utility could in fact change the position. It was argued that the inability to obtain statements may prejudice the defendant by not allowing a defence of volenti non fit injuria due to the alcoholic condition of the driver to be argued.However the defendant himself quite honestly says that he was drunk and that a deal of alcohol had been drunk.He cannot talk about the condition of the driver but the inferences which the defendant asked me to draw from the surrounding circumstances as to alcohol would in my view be little different from the inferences that would be sought to be drawn if the matter was commenced within time.I find that there has been no genuine prejudice to the conduct of the defence case by the delay. As the threshold test has been satisfied bearing in mind the criteria as set out in the above cases, I find that it is just to grant an extension of time. I now turn to the question of liability.

Liability

The evidence of the plaintiff as to the accident I find to be truthful and in many ways uncontroversial.He gave evidence that he and some other young men (at the time) went to the local hotel and having brought some alcohol went to a place 2 miles south of Marree.Everybody started drinking for a couple of hours and a number of them drove back to Marree in Mr. Stewart's Utility.The plaintiff was sitting in the front next to the door with Mr. Stewart who was driving and a Mr. Martin.He gave evidence that there were no seatbelts and that when they were driving Mr. Stewart swerved as if to dodge a pothole and the car flipped.The plaintiff could not remember at what speed the Utility was travelling but the rolling over happened very quickly.The plaintiff gave evidence that he was feeling drunk but did not know the condition of Mr. Stewart.In cross-examination the plaintiff said that he had been resting his arm outside the window when the accident happened and it was dark when the Utility rolled over.He said he himself was knocked out in the accident.I find that it has been proved clearly and to the requisite degree that the clear inference from the evidence of the plaintiff which I accept is that the Utility rolled over because of the negligent driving of Mr. Stewart.There is no evidence before me that the lack of seatbelts contributed to the damage to the plaintiff's arm and there is no evidence presented by the defence which indicates the basis for a plea of either contributory negligence or volenti non fit injuria due to the perceived alcoholic condition of the driver.Other than the general evidence that a lot of alcohol was consumed there is no evidence at all that the driver was affected at the time.I find that there is a clear inference from the proven facts of negligent driving.I now turn to the question of damages.

Assessment of Damages

The plaintiff suffered an obvious and serious injury to his left arm.Mr. Michael Patkin was called by the plaintiff.He was a general surgeon at the Whyalla Hospital at the time of the accident.He attended the plaintiff while there but did not perform the operations to which he referred in his evidence. He gave evidence that as a result of the accident the plaintiff had two operations performed on his left arm on 5th August 1978 and 20th August 1978. He also gave evidence there was a third minor operation carried out on 30th August 1978.The first operation was to deal with the wound on the left forearm and to apply skin grafts to it.Two weeks later as a result of the not unexpected consequences some of the skin grafts failing at the first operation a second operation was carried out to correct the situation and there was a third operation to apply another small split skin graft.Mr. Patkin gave evidence that there has been damage to the muscle of the left arm and on being tested by Mr. Patkin in 1995, he was of the opinion that there was a 20% loss of the grip strength of the left hand relative to the right hand.He was also of the opinion that there was a 10% loss of impairment of the left arm.Mr. Patkin was at pains to emphasise that those figures are imprecise and that in his opinion he saw a mild restriction in Mr. Warren performing heavy labouring work.The plaintiff gave evidence that the accident and the subsequent damage to his left arm caused an inability to lift very heavy objects.I accept what he says.I also inspected his arm and photographs of his arm which were tendered as exhibits and I found it to be obviously scarred in a very disfiguring way.

The plaintiff gave evidence that at the time of the accident he was working for a Mr. Dave Miller who was called as a witness.His work history before working for Mr. Miller was that he was working at Anna Creek Station for about a year mustering cattle and putting up fences.He then worked for Mr. Miller then left Mr. Miller and worked for the Australian National Railways as a fettler and then having left the Australian National Railways he went back and worked with Mr. Miller again up until the time of the accident.The work he was doing with the Australian National Railways was a fettling job which involved checking the lines, putting in new sleepers which of itself involved an amount of heavy lifting work.The Australian National Railways ceased operations in Marree in 1980.His work with Mr. Miller involved lifting heavy articles like drums.After the accident he could not work for the Australian National Railways or Mr. Miller because of the nature of heavy lifting which was required in both jobs.I accept the evidence of the plaintiff that he was unable to do such work after the accident because of his arm.I found him to be truthful and indeed in many ways he made light of his injury.For general damages, pain and suffering and loss of amenities I award the amount of $30,000.00.

As far as past economic loss is concerned I have evidence that the plaintiff did not work for some 4 years or so after the accident, he then took on sporadic light work until his general medical condition became such due to hypertension and diabetes that in 1983 or 1984 he was not capable of doing heavy work anyway.I find that the loss of opportunity to do heavy lifting work as a result of the accident only lasted for about 5 years from the time of the accident.After that period and indeed into the future I find there can be no damages awarded for economic loss because of the reasons explained due to his hypertension and diabetes.

In assessing his damages for past economic loss during that 5 year period my task is a difficult one and by necessity requires a broad approach.I take into account as a starting point the evidence of the plaintiff that while working for Mr. Miller he was earning $150.00 per week after tax.I have further evidence before me that from 1st November 1976 until 25th November 1977 and at the date of his resignation from the Australian National Railways on 25th November 1977 he was earning $138.90 per week plus a district allowance of $9.38 per week.As a starting point I allow a figure in the vicinity of $150.00 per week after tax for a period of 5 years which comes to a rough gross amount of $39,000.00.However I bear in mind that even up until the time of the accident the plaintiff was not working on a full time basis.I also bear in mind that after 1980 due to the railway gauge ending at Marree heavy work was not as available.I take into account that he was precluded during that period from seeking heavy work elsewhere.I would therefore discount the rough figure of $39,000.00 for contingencies by approximately 25%.I award for past economic loss the sum of $30,000.00.I make no award for future economic loss for the reasons given, namely, the fact that his general medical condition had overtaken the damage to his arm as far as work was concerned.There has been no claim for special damages or any other heads of damage.

The plaintiff will have judgment in the sum of $60,000.00.I will hear counsel as to the question of interest and costs.

LATER IN COURT

Pursuant to Section 48 of the Limitation of Actions Act, the application for an extension of time is granted and in the cause itself His Honour finds for the plaintiff in the sum of $60,000.00.

His Honour awards interest in the sum of $3712.50, by way of interest.His Honour indicates that that relates to as far as non economic loss an amount of $25,000.00 from the time of the injury until the issue of proceedings, which reflects that proportion of non-economic loss up until that time and interest to run from the date of the proceedings.It also reflects the amount of $30,000.00 for economic loss, which in His Honour's judgment to run from the date of the proceedings and not before.On that basis, it was agreed that the amount of $3,712.50 is the appropriate amount.

His Honour awards costs to the plaintiff, to be taxed or agreed.