Mary Gertrude Mcdonald v Janice Isabell Lawrence [1986] ACTSC 107 (2 December 1986)

SUPREME COURT OF THE ACT

MARY GERTRUDE McDONALD v. JANICE ISABELL LAWRENCE
S.C. No. 1398 of 1986
Limitation of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Limitation of Actions - Limitation Ordinance 1985 s.36 - application for extension of time within which to sue - lapse of twenty years - circumstances to be taken into account.

Daroczy v. B & J Engineering Pty. Limited (in liq.) and another (unreported Kelly J. 30 May 1986)

HEARING

CANBERRA
2:12:1986

ORDER

The summons be dismissed with costs.

DECISION

This is an application under s.36 of the Limitation Ordinance 1985 for an extension of time to sue for damages for personal injuries. The time limited by s.11(1) of the Ordinance is six years from the date on which the cause of action first accrues.

2. In Daroczy v. B & J Engineering Pty. Limited (in liquidation) and another (unreported 30 May 1986) Kelly J. decided that the provisions of the Limitation Ordinance relating to the powers of the Court to enlarge the time for suing for what would otherwise be a statute-barred cause of action were retrospective. That decision was not challenged in the present proceedings and, with respect to his Honour, I accept it as correct.

3. The plaintiff sustained injury more than twenty years ago, on 18 July 1966. She was driving a motor vehicle north in Coranderrk Street, Reid. When she was passing through the intersection of that street with Constitution Avenue the vehicle she was driving was struck on the left by another vehicle being driven by the defendant, Janice Isabell Lawrence. The defendant had been driving east in Constitution Avenue. It is clear that the defendant failed to give way to a vehicle on her right.

4. The plaintiff would have little difficulty in establishing negligence on the part of the defendant and on the material before me it is doubtful whether the defendant could establish that there was any contributory negligence on the part of the plaintiff.

5. A police report tendered in evidence contains the word "shock" alongside the plaintiff's name and under the words "Nature of Injuries". It records that the plaintiff was taken to the then Canberra Community Hospital, but there are no records from that source and no explanation as to their absence. The plaintiff said in her affidavit sworn 14 August 1986 that she had "difficulty standing" and consulted a local doctor, Dr Stewart-Thompson of Ainslie, the following day. She also stated that there was pain in the shoulder blade which grew progressively worse. In cross-examination on her affidavit she said that she did not start visiting the doctor until "after a few weeks". She also said in cross-examination that she did not realise that she had a claim for damages until after she was x-rayed at an unspecified time and was told by an unidentified chiropractor that her condition, whatever it was, was due to "an old injury". There is no evidence from the doctor or the chiropractor and no explanation as to its absence.

6. In her affidavit the plaintiff swore that she first became aware of her "right to compensation" when spoken to by a solicitor, Mr. Andrews, on 23 June 1986. There is no explanation as to why Mr. Andrews was consulted and no explanation as to how it came about that his attention was directed to the question of the plaintiff's possible rights to damages arising out of the motor vehicle collision in 1966.

7. The plaintiff said in her affidavit that within one week of the collision she consulted her then solicitor for the purpose of making a claim for damage to the vehicle (although the vehicle appears to have been owned by her husband). She further said that neither she nor the solicitor spoke about her injuries or any right she might have had for claiming damages for such injuries. It is notable that the concern she showed for the damage to the vehicle and the alacrity with which she acted in that regard was clearly not matched by her attitude and conduct in relation to her injury.

8. The plaintiff, who is now 68 years of age, conceded in cross-examination that she had been a driver of some ten years experience at the time of the collision and that she knew then about the need for and purpose of third party insurance in respect of liability for damages for personal injuries. Her husband was injured, badly it seems, in a motor vehicle accident in January 1967 and took action which resulted in a settlement of his damages claim in 1970. The plaintiff's son was also injured in a motor vehicle collision in 1967. Consideration was given to his making a claim, or a claim being made on his behalf for damages for his injuries, presumably soon after they occurred, but a decision was made not to pursue that claim. The plaintiff knew about her husband's claim and her son's possible claim.

9. In the result, I reject the submission made on behalf of the plaintiff that she did not know until June 1986 that a driver injured in a motor vehicle collision in circumstances similar to those in which she was injured could make a claim for damages against the other driver in respect of that driver's negligence. I am prepared to accept that the plaintiff gave no conscious thought to proceeding to claim damages on her own behalf until June 1986. The likely reason was, in my view, that the nature of her injury was such that it did not suggest to her that an action for damages was appropriate.

10. The defendant also swore an affidavit. She is a married woman with dependent children and is now aged 46 years. There may be good reasons why the plaintiff has not sought to proceed against the owner of the vehicle. The vehicle driven by the defendant belonged to her husband. The vehicle was purchased by the defendant's husband in Victoria and went through Victorian and New South Wales registration until the defendant and her husband came to reside in the Australian Capital Territory in 1964. The defendant swore in her affidavit (and there was no objection to this evidence) that third party insurance cover on the vehicle in the Australian Capital Territory was effected with NRMA Insurance Limited until the vehicle was sold in 1976. She and her husband have searched for the papers relating to the third party insurance of the vehicle but they have been unsuccessful in finding those papers. The records of NRMA Insurance Limited for the period in question have been destroyed and enquiries made of the Government Insurance Office of New South Wales (in case the third party insurance was carried by that Office) revealed that its records also have been destroyed. I am satisfied that the relevant records of the Registrar of Motor Vehicles in the Australian Capital Territory have also been destroyed. I am further satisfied that if the plaintiff were to recover damages against the defendant, then NRMA Insurance Limited would resist any claim for indemnity by the defendant. That is proved by the defendant's evidence as to a conversation she has had with an officer of NRMA Insurance Limited and by a letter from that company's solicitors dated 3 October 1986. I am satisfied that although the defendant would have a reasonable chance of success in a claim for indemnity, she would be likely to face difficulties of formal proof and that success in a claim for indemnity would by no means be certain. She would face solicitor and client costs in any event. I have no idea on the material before me as to what damages the plaintiff would be likely to receive in any action against the defendant, but the defendant's liability for costs in the contribution proceedings, as well as any costs she would inevitably incur in preparing the case brought against her by the plaintiff would be considerable.

11. As to the exceptionally long delay from the time of injury to June 1986, the plaintiff offers the explanation that she had been too busy looking after other people to give her own circumstances any consideration. Unfortunately that may well be true, but it does not carry any great weight in the present case. I do not accept that the plaintiff was "ignorant of any right" to claim damages. In my view what happened was that she did not turn her mind to the question as to whether she ought to exercise any rights she possessed. In the light of the extreme paucity of evidentiary material of a medical nature or indeed of any allegations by the plaintiff herself as to the extent and exact nature of her injuries, I can only infer that her condition was such that it did not suggest to her that her rights ought to be exercised or even investigated. I do not know whether the effect of the 1966 injury has ceased or whether the plaintiff claims to suffer from continuing symptoms and disabilities which are traceable to that injury. Twenty years later, so it seems to me, it would be an unfair burden to place upon the defendant to require her to resist such a vague, unspecified and, as it presently appears, unlimited claim for damages.

12. I have regard to all the circumstances of the case to which the Court must have regard by virtue of s.36(3). It is not necessary for each matter to be dealt with exhaustively. The length of the delay is exceptionally great, and the reasons given by the plaintiff for that delay are in part unconvincing. Further, those reasons for the delay, which are acceptable, taken into account along with the other factors in the case, do not of themselves assist to make it just and reasonable to order that the period be extended. I think that there is, having regard to the delay, likely and substantial prejudice to the defendant. The conduct of the defendant after the cause of action accrued does not bear on the present application. There was no legal disability on the part of the plaintiff which stood in the way of her commencing proceedings. The evidence before me does not lead me to a conclusion that the plaintiff took appropriate steps to obtain medical, legal or other expert advice until some unspecified time shortly before June 1986. I accept that the plaintiff acted promptly and reasonably once she received the advice in June 1986, but overall I am not convinced that it is just and reasonable to extend the period of six years in which the cause of action was maintainable under s.11 of the Ordinance.

13. The summons will be dismissed with costs.