Williams v Pfund

[1987] TASSC 104

Serial No B34/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Williams v Pfund [1987] TASSC 104; B34/1987

PARTIES:  WILLIAMS
  v
  PFUND

FILE NO/S:  M418/1986
DELIVERED ON:  30 July 1987
JUDGMENT OF:  Underwood J

Judgment Number:  B34/1987
Number of paragraphs:  27

Serial No B34/1987
List "B"
File No 418/1986

WILLIAMS v PFUND

REASONS FOR JUDGMENT  UNDERWOOD J

30 July 1987

1. This is an application for an order extending the period limited by the Limitation Act 1974, s5(1) for the bringing of an action of damages for negligence.

1. In the evening of the 3 July 1982, the applicant was driving her motor vehicle along Bingley Street towards its junction with Howrah Road. On reaching the junction, she stopped to give way to a vehicle travelling along Howrah Road. Whilst stationary, her car was hit in the rear by a vehicle driven by the respondent. In these circumstances it was not disputed that the applicant has a very strong prima facie case for damages for negligence.

1. Immediately upon the happening of the accident, the applicant experienced symptoms commonly associated with a whiplash injury. She was conveyed by ambulance to the Royal Hobart Hospital. Following physical and x–ray examination, the appellant was discharged with advice to wear a soft cervical collar and to undergo a course of physiotherapy. She underwent the prescribed course of physiotherapy at the Royal Hobart Hospital, attending on a regular basis, until the 13 August 1982.

1. At the time of the accident, the applicant was engaged in bitter and protracted proceedings in the Family Court against her former husband. She was consulting Mrs Huxtable, a solicitor employed in the Australian Legal Aid Office, Hobart. On the 19 July 1982 (just over two weeks after the accident) she saw Mrs Huxtable to give her final instructions in connection with proceedings for contempt of court, due to be heard in the Family Court the following day. On seeing her client with a cervical collar, Mrs Huxtable asked her what had happened and was told in summary form, about the motor vehicle accident. There was a sharp conflict between the evidence of the applicant and the evidence of Mrs Huxtable with respect to what else was said between them on this occasion. The applicant said that Mrs Huxtable told her that she could claim for the cost of the ambulance and the physiotherapy treatment, presumably from the Motor Accidents Insurance Board. She denied receiving advice that she could also claim the cost of attendances upon medical practitioners and explained that as she was the holder of a health card, such attendances were at no cost to her in any event. The applicant's evidence, which I accept, was to the effect that, at the time of her visit, she had little idea of any entitlement in law she may have had as a result of the accident and only a limited perception of the concept of damages. She had read about "quadraplegics suing and recovering some money". She denied that Mrs Huxtable told her that she could bring a claim for damages and that she had three years within which to do it. The applicant also said that Mrs Huxtable told her to send away for a Motor Accidents Insurance Board form, fill it in and claim payment of the account for the ambulance and physiotherapy. She conceded it was possible that Mrs Huxtable had offered help with the completion of this form if required.

1. Mrs Huxtable agreed that she had advised that a claim could be made for the payment of the ambulance and physiotherapy. But, she said that she told the applicant she could make a claim for damages at common law and that she had to do so within three years from the date of the accident. Mrs Huxtable said she did not use the expression "damages at common law", but by the use of other words, sufficiently explained it. Mrs Huxtable said that in the course of the same conversation, she asked the applicant to ascertain the name of her doctor so that she could obtain a medical report "if required" and that she told the applicant to bring in any accounts she received. Mrs Huxtable said the matter was left on the basis that the applicant would advise her of the name of her medical practitioner and bring in any accounts that she might receive. The important matter of difference is whether or not the applicant was advised on the 19 July 1982 that she had three years within which to bring a claim for damages. I will return to this conflict in the evidence.

1. During the 12 months or so after that interview the applicant frequently consulted Mrs Huxtable. Thereafter there were some consultations but their frequency diminished. All the consultations concerned the applicant's matrimonial matters and no mention was made until January 1986, of a possible claim for damages at common law arising out of the motor vehicle accident on the 3 July 1982.

1. I find that, following completion of the course of physiotherapy on the 13 August 1982, the applicant's symptoms substantially subsided. In October 1982 the applicant herself obtained the appropriate forms from the Motor Accidents Insurance Board, completed them and dispatched them together with the account for the ambulance and physiotherapy treatment.

1. However, some time later, at a time which the evidence does not permit me to pinpoint, but was probably during 1984, the applicant's symptoms returned. By May 1985 they had become more severe and the applicant consulted her general practitioner who referred her for a further course of physiotherapy. This course was undertaken between the 16 May 1985 and the 14 June 1985. It provided some immediate but temporary relief. During the latter half of 1985 the applicant's condition again deteriorated and at the urging of her mother, she consulted Mrs Huxtable on the 10 January 1986 to obtain advice with respect to making a claim for damages against the respondent. By then, the time for the commencement of proceedings had expired 6 months earlier.

1. It is common ground that on this occasion, Mrs Huxtable told the applicant of the three year time limit and that her claim was statute barred, although there existed a right to apply to apply for an extension of time. It was also common ground that Mrs Huxtable advised the applicant that such an application would be unlikely to succeed and it would be better if she simply forgot about making a claim. Surprisingly, in view of the paucity of information in the hands of Mrs Huxtable, she apparently felt able to advise the applicant that, had she been able to bring a claim, she would be likely to recover a sum in the order of thirty to forty thousand dollars. The applicant was upset on receipt of this advice.

1. However, again there was a sharp conflict between the evidence of the applicant and the evidence of Mrs Huxtable with respect to what else was said during the consultation on the 10 January 1986. Mrs Huxtable said that the applicant told her that she had not mentioned her symptoms on prior visits to Mrs Huxtable because, until about 12 months earlier, she had believed them to be caused by stress related to the protracted matrimonial proceedings. The applicant denied saying this and denied that she had ever entertained that belief. Mrs Huxtable said that she asked the applicant when she had realised that the symptoms were not stress related and claimed the applicant told her it was "about 12 months ago and that was the time that she started seeing the physiotherapist and that was when the physiotherapist asked her had she made a claim". The applicant denied that the physiotherapist asked her if she had made a claim and denied that she had told Mrs Huxtable that was the case.

In an affidavit the physiotherapist deposed:

"3According to records kept by me I treated her at the above named Centre on many occasions in 1985, commencing on the 16th of May 1985, and ceasing on the 14th of June 1985.

4According to records kept by me I then treated her again in 1986, from the 11th of March 1986 and ceasing on the 9th of April 1986.

5I have no recollection of ever volunteering any comment to Mrs Williams about making claims for compensation, nor of asking her whether or not she had made a claim for damages.

6I can recall Mrs Williams telling me one day that she had recently been told that she was out of time for making a claim for compensation. She said she had never been told she could make a claim, and she appeared to me to be very depressed about it."

1. The deponent was not cross–examined upon her affidavit and I accept the facts deposed to as being accurate. Thus, it can be seen that the applicant did not start seeing the physiotherapist 12 months prior to the 10 January 1986 and it is therefore unlikely the applicant told Mrs Huxtable that that was the case. The file note of the conversation with the applicant on the 10 January 1986 made by Mrs Huxtable makes no reference to the physiotherapist making enquiry about a claim for damages nor does it contain any reference to Mrs Huxtable advising the applicant in 1982 that any claim had to be made within three years of the occurrence of the accident. That file note reads in part:

"She says that been to physio for past 6 mths but was playing up for c 12 months prior. She just didn't think of coming to see me make claim. She never even put in claim with MAIB at time. All medical expenses paid for on pension."

1. The first sentence of that note is consistent with the evidence of this physiotherapist and the applicant. It is inconsistent with evidence of Mrs Huxtable given by way of affidavit and from the witness box. Mrs Huxtable said that her two principal reasons for advising the applicant that an application for an extension would not succeed was that she had advised her of the 3 year time limit in 1982 and that the physiotherapist had asked her if she had made a claim. She inferred that the physiotherapist had said this 12 months earlier. Obviously she was in error in drawing that inference.

1. The file note of the consultation in 1982 is confined to the matrimonial matter and makes no reference to the motor vehicle accident at all.

1. Generally, where there is a conflict between the evidence of the applicant and the evidence of Mrs Huxtable with respect to the conversations between them, I accept the evidence of the applicant. The applicant presented as a quietly spoken, not unintelligent woman. About some matters she was prepared to concede that her recollection may have been faulty, but with respect to other matters, some of which were corroborated by other evidence, she was quite firm that her recollection was accurate.

1. On the other hand, Mrs Huxtable, who in July 1982 had been a practitioner for little more than 3 years, repeatedly made uncompromising assertions that her memory was correct and would not admit to the possibility of any error. These assertions were made without the benefit of file notes and persisted with even after concessions, made in cross–examination, that some of her earlier evidence was erroneous. She claimed to remember the most minute aspects of her discussions with the applicant in July 1982 notwithstanding the passage of a number of years and the absence of notes, of which the following exchange in cross–examination is but one illustration:

"Mr Ayliffe:     Now, are you sure that you advised her on the 19 July that with the ambulance account she should bring the ambulance account in and it would either have the form attached to it or you would supply the form from your office?..........I said all medical accounts, any medical accounts she received to bring in.

Are you sure you gave her that advice?.......Yes

Do you remember giving her that advice?..........Yes, I do. I answered you yesterday, three times."

1. Mrs Huxtable was not called upon to recall the relevant conversations until October 1986; more than 4 years after the first conversation took place. In the meantime, she had been occupied with a busy law practice and interviewed many clients. Although I accept that Mrs Huxtable clearly remembers the applicant and the substance of her matrimonial matters, her claim to an almost infallible memory for every detail of these conversations is just not credible. There was an apparent readiness to convert belief into certainty and general practice into fact in the particular case.

1. On 20 January 1986 the applicant consulted Mr Davey, of the firm of Finlay Blackwood, to see if, notwithstanding the advice of Mrs Huxtable, she could still pursue a claim for damages. The same day, Mr Davey wrote to the Deputy Director of the Australian Legal Aid Office seeking legal aid to investigate the prospects of making a successful application to extend time. In that letter Mr Davey asked two questions:

"Whilst the matter appears to be out of time, there are two questions which we consider require consideration:

1The time at which the symptoms of the injury first appeared.

2The nature of the previous documentation filed with the Motor Accidents Insurance Board and in particular whether this constituted any form of claim."

1. On 22 January 1986 Mrs Huxtable replied to this letter in the following terms:

"We refer to your letter dated 28th January 1986 (sic) and advise that aid is refused.

Mrs Bentley (the then married name of the applicant) consulted the writer on the 10th of January and advised that she never filed (sic) any documentation with the Motor Accidents Insurance Board. She advised that her medical expenses were covered by her health card.

She also advised the writer that she first had problems approximately 18 months ago.

The writer advised her that she was out of time for making a claim and she accepted this."

1. The contents of that letter are almost wholly erroneous. There are assumptions which Mrs Huxtable made and in her evidence, asserted were facts until it was demonstrated that this was not the case. The applicant had in fact lodged documentation with the Motor Accidents Insurance Board. Mrs Huxtable eventually conceded that she had made an assumption that no documentation had been lodged because she had been told medical expenses had been covered by the health card. To Mrs Huxtable's knowledge, symptoms of a whiplash injury had been apparent immediately after the accident had occurred. In her evidence Mrs Huxtable initially claimed in with immutable certainty, that the reference to 18 months in the letter was a typographical error and should have read 12 months. However, when it was pointed out to her that the figure of 18 months was in accordance with the note she had made of her instructions, she stated with equal certainty that it was not a typographical error. The contents of the file note of the conversation on the 10 January 1986 are consistent with the evidence of the applicant and the physiotherapist and inconsistent with the oral evidence initially given by Mrs Huxtable.

1. If the principal reasons for the advice that an application for an extension of time would not be successful and the later refusal to grant legal aid, were the advice given in 1982 of the 3 year time limit and the claimed statement by the physiotherapist, it is surprising that neither are referred to by Mrs Huxtable in her letter to Finlay Blackwood.

1. With respect to the rejection of the application for legal aid to investigate the prospects of making a successful application to extend time, Mrs Huxtable, claiming a certainty not warranted by her experience, said it never crossed her mind that her advice would be challenged.

1. I find that in July 1982, the applicant was not told nor aware of any time limit within which a claim for damages had to be made. Because her symptoms substantially subsided between August 1982 and sometime during 1984, she had no occasion to raise the question of a claim for damages with her solicitor. Thereafter, she firstly put up with her condition and secondly underwent further physiotherapy when it deteriorated. The persistence of symptoms following the conclusion of physiotherapy in 1985 finally led her to consult Mrs Huxtable about the matter in January 1986. I find that it was at this consultation that the applicant learnt for the first time of the existence of the three year time limit for the commencement of proceedings. In my view, the above findings of fact constitute a reasonable explanation for delay up to January 1986.

1. Following receipt of Mrs Huxtable's letter on 22 January 1986, Mr Davey, probably because of his unfamiliarity with matters of this kind, did nothing for some five months. At the expiration of this period Mr Davey passed the file to his partner, Mr Thorp. The applicant was criticised for permitting this period of some five months to elapse without contacting Mr Davey to inquire with respect to the progress of the matter. However I do not regard her failure in this respect as unreasonable conduct having regard to her explanation that she assumed that Mr Davey knew what he was doing and in the light of the pessimistic prognosis earlier given to her by Mrs Huxtable.

1. Although the application to extend time was not filed until 16 September 1986, when the claim was one year and two months out of time, from the time the file was handed to Mr Thorp until the time the application was filed, Mr Thorp was engaged in making extensive enquiries to obtain evidence in support of the application.

1. No special prejudice arising out of the delay was claimed by the respondent. The Motor Accidents Insurance Board was given full details of the accident and the names of possible witnesses within three months of the occurrence and, by letter dated 1 July 1986, advised by Mr Thorp that this application would be made.

1. The principles upon which the discretion given by the Limitations Act 1974; s5(3), are well established and require no repetition. See Hall v Nominal Defendant (1967–68) 117 CLR 423; Hammond v The Australian Coastal Commission Burbury CJ 82/71; Knight v Smith [1975] Tas SR 83.

1. In all the circumstances of this case I am of the view that it is reasonable to extend the time within which proceedings may be instituted until the 7 August 1987. The application is granted.