Anthony Phillip Goodwin v Lindsay James Smith [1990] ACTSC 50 (10 December 1990)

SUPREME COURT OF THE ACT

ANTHONY PHILLIP GOODWIN v. LINDSAY JAMES SMITH
S.C. No. 694 of 1990
Limitation Act 1985 (ACT), s.85

COURT

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

CATCHWORDS

Limitation Act 1985 (ACT), s.85 - limitation of actions - personal injury cases - extension of time for taking legal proceedings - no new matter of principle.

Neva Noja v. Civil and Civic Pty. Limited and Ors. (unreported, Federal Court of Australia, 3 May 1990)

HEARING

CANBERRA
10:12:1990

Counsel for the plaintiff: Mr. C. Ryan

Solicitors for the plaintiff: Ahern, Morris and Vincent

Counsel for the defendant: Mr. G. Parker

Solicitors for the defendant: Crossin Power Haslem

ORDER

1. The time for the plaintiff to sue the defendant in respect of the injuries sustained on 27 September 1982 be extended to 4 p.m. on Thursday, 13 December 1990.

2. The plaintiff applicant pay the costs of the defendant respondent in respect of this application.

DECISION

Application under s.36 of the Limitation Act 1985 (ACT) for extension of time in which to sue for damages for personal injuries sustained in motor vehicle collision.

2. I am satisfied on a prima facie basis that:
1. The plaintiff received injury on 27 September 1982 when

driving an ACTION bus.
2. The collision occurred when the bus was stationary at a
bus stop on Belconnen Way and the vehicle driven by the defendant
collided with the rear of the bus.
3. The plaintiff's injury was in the nature of a whiplash
and caused the plaintiff to be absent from work for two weeks
immediately or almost immediately after the injury. Symptoms in
the nature of mild headache persisted but were not incapacitating
until July 1986.
4. In early 1986 the plaintiff took several months off work
because of the condition in his neck. He consulted Dr Hannaford
on 10 March 1987 and thereafter in September 1988. He ceased
work altogether for the same reason on 16 November 1988. He
underwent fusion at C4/5. Dr Newcombe considered that the need
for the 1988 operation was causally connected to the 1982 injury
as were the symptoms that were confirmed before.
5. On 27 January the plaintiff quit his job as a bus driver
and became a clerk in the Court House at Finley NSW.

3. I am also satisfied that:

1. The plaintiff was not aware until October 1988 that he
had an entitlement to sue. He became aware when he consulted a
solicitor on another matter.
2. The history thereafter is short. He instructed
solicitors on 23 December 1988 with regard to commencing
proceedings to recover damages in respect of the injury. The
solicitor commenced enquiries in January 1989 and in February
1989 commenced negotiations with GIO in the belief that it
insured the defendant for liability re the plaintiff's injury.
In July 1989 proceedings were commenced to gain an extension of
time to sue, GIO being named as the respondent to the application.
Negotiations between GIO and the plaintiff's solicitors commenced
on 24 August 1990. The application was dismissed, apparently
on the ground that GIO was not a proper party.
3. Subsequently the defendant's address was located and the
plaintiff spoke to the defendant's wife on 22 October 1988.
4. The plaintiff commenced this application on 12 November
1990 and served it on 15 November 1990.

4. Under sub-s.11(2) of the Act no action is maintainable on a cause of action brought after the expiration of a limitation period of six years from accrual of cause of action. By sub-s.96(2) the Court is given a wide jurisdiction to extend the period within which an action may be brought if it is just and reasonable to do so.

5. By sub-s.36(3) the Court must have regard to all the circumstances of the case including a number of specified factors. I deal with these.

a) Length and reasons for delay
The length of delay is from the time of the expiry
of the cause of action to the time of institution of the
proceedings: see Neva Noja v. Civil and Civic Pty. Limited and Ors.
(unreported, Federal Court of Australia, 3 May 1990).
The reasons for delay are:
i) ignorance of rights until just after the
period expired;
ii) wrongly commencing negotiations with GIO,
then commencing proceedings against that office for extension of
time when apparently GIO was not the insurer.
Although the delay is considerable, it is, in my
view, sufficiently explained by the sequence of facts and the
circumstances to which I have referred.
b) Extent to which having regard to delay there is or
is likely to be prejudice to the defendant.
Counsel for the defendant says that the defendant
has been deprived of the opportunity of properly investigating
the circumstances of a collision which occurred over 8 years ago
and of the plaintiff's condition since then. The plaintiff
has deposed that the matter was reported to the police and the
defendant was subsequently convicted of negligent driving.
Presumably the records are available. There is no evidence that
they are not. Similarly, with regard to the plaintiff's condition,
a medical report from Dr Hannaford and another from Dr Newcombe
closely documents the progress of the plaintiff's condition.
Again, presumably there are documents with the
hospital and the Commonwealth employer. Again there is no
evidence that such documents are no longer in existence or that
the defendant has been unable to gain access to them. There is
of course the general prejudice to the defendant that if time was
extended, the defendant is deprived of a defence which would
otherwise be available to defend the plaintiff's claim. But that
prejudice is not and, in my view, cannot be sufficient to justify
a refusal of extension of time otherwise warranted, as the
refusal would defeat the purposes of sub-s.36(2) of the Act.
c) Conduct of defendant
The next matter relates to the conduct of the
defendant which, in my view, is not relevant.
d) Duration of disability
There is also the question of the duration of the
disability. That is also not relevant because disability in that
context means legal disability and not physical disability. The
plaintiff has not been under any legal disability.
e) Extent to which plaintiff acted promptly and
reasonably once he became aware of his rights
In my view, the plaintiff has acted with reasonable
promptness since he became aware in October 1988 that he could
possibly sue the defendant for the consequences of his injury.
Why it was that his solicitors wrongly pursued the GIO of New
South Wales in respect of his claim, I do not know. It is not the
subject of evidence. In the absence of such evidence I am not
prepared to draw the inference that the solicitors acted
unreasonably.
f) Steps taken by the plaintiff to obtain expert advice
From what I have already said about the progress of
the matter, I conclude that the plaintiff took reasonable steps
to obtain legal and medical advice once he became aware of his
rights. Further, I am of the view that there is no substantial
prejudice to the defendant, or no prejudice sufficient to justify
not granting the application.

6. Finally, there is a general discretion in the light of all the circumstances and having regard to the specified matters, whether it is just and reasonable to extend the term. I think it is. The plaintiff's ignorance of his rights is remarkable, if not extraordinary, but he swore to it. I saw him in the witness box. I am not prepared to disbelieve him.

7. Medical evidence supports his complaints about his condition. There is prima facie a long term continuing and serious disability which, however, I note is not productive of any loss of income at the present time.

8. I am not convinced that there is any substantial prejudice done to the defendant, who did not file any affidavit to support his opposition to the application for time to be extended. I therefore make an order extending the time for the plaintiff to sue the defendant in respect of the injuries sustained on 27 September 1982. The time is extended to 4 p.m. on Thursday next, 13 December 1990. The plaintiff applicant is to pay the costs of the defendant respondent in respect of this application.