Kay Lorraine Williams v Government Insurance Office of New South Wales [1994] ACTSC 98 (23 September 1994)

SUPREME COURT OF THE ACT

KAY LORRAINE WILLIAMS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES
No. SC268 OF 1994
Number of pages - 6
Limitations - Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Limitations - Extension of time - Possibility of action against solicitor - Early notice to defendant's insurer - Investigations made and available to defendant's insurer - Actions by plaintiff's children not statute barred - Relevance.

Limitation Act s.36

Noja v Civil and Civic Pty Ltd (1990) 93 ALR 224

Practice and Procedure - Conditional Appearance - Not appropriate - Defences to causes of action - Setting aside originating process or service - Not appropriate.

Supreme Court Rules O.13 r.17; O.29 r.4.

HEARING

CANBERRA, 9 September 1994
23:9:1994

Counsel for the Plaintiff: Mr G Stretton

Instructing Solicitors: Hill and Rummery

Counsel for the Defendant: Mr C Whitelaw

Instructing Solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
Pursuant to S.36 of the Limitation Act the time within which

this action may be brought be extended until the 2nd day of
May 1994.

DECISION

MASTER A HOGAN There are two Notices of Motion pending for determination in this action.

2. The action was commenced by Writ issued on 2 May 1994. It was accompanied by a Statement of Claim alleging a cause of action for damages for personal injury sustained by the plaintiff in a motor vehicle accident that took place in the Australian Capital Territory on 1 March 1980.

3. The negligence alleged is that of one John Robert "Tauton" (sic), but the defendant named in the Writ was the Government Insurance Office of New South Wales. The pleading does not disclose any facts that would require or entitle the plaintiff to bring the action against that defendant rather than the alleged tortfeasor.

4. The defendant filed what is called a "Conditional Appearance", which purports to be "without prejudice to an application to dismiss the Writ or the service of the Writ".

5. That procedure is not appropriate. There is no provision for a conditional appearance in the Rules. A defendant who wishes to set aside originating process or its service should apply under O.13 r.17, which application, by subrule (4), may be made without entering an appearance and is not taken to be a voluntary submission to the jurisdiction of the Court.

6. But the complaints made by the defendant about the proceedings would not found an application to set aside the Writ or the service of it in any event. They are, firstly, that the plaintiff has chosen the wrong party to sue, and secondly that the action is statute barred.

7. The appropriate procedure for dealing with the first of those two objections would be either to raise the point of law in the Defence, or to bring an application under O.29 r.4, to strike out the Statement of Claim and stay or dismiss the action on the ground that it discloses no reasonable cause of action.

8. The second is simply dealt with by pleading the Statute of Limitations in the Defence. The Statute of Limitations has no effect on the action unless the bar is pleaded in the Defence.

9. Neither of those objections have any effect on the jurisdiction of the Court, either over the defendant as a party or over the subject matter of the cause of action.

10. The defendant, by its Notice of Motion dated 10 August 1994, sought an order that the Statement of Claim be struck out on the ground that it discloses no reasonable cause of action against the defendant. It also sought an order that the proceedings be permanently stayed or be dismissed on the ground that they are statute barred.

11. The plaintiff's Notice of Motion of 25 August 1994 sought orders;

1. Granting leave to amend the proceedings by deleting the
Government Insurance Office as the defendant and inserting John
Robert "Taunton" (which is the correct spelling) as defendant, and
2. Extending time for bringing the action to 2 May 1994 pursuant
to S.36 of the Limitation Act 1985.

12. The first of those orders was made by consent on 9 September 1994.

13. The parties agreed that it would be convenient for the plaintiff's application to extend the limitation period to be dealt with before the defendant's application to stay or dismiss the proceedings.

14. On 9 September 1994 Mr Justice Higgins made an order referring that matter to the Master, pursuant to O.61A r.1(e).

15. The evidence on the application was uncontested.

16. The plaintiff deposed that on 1 March 1980 she was the driver of a car which was involved in a collision with a truck driven by the defendant.

17. Police were notified and she annexed to her affidavit a copy of a written statement that she made to police on 14 March 1980.

18. She and her two daughters had been injured in the accident. In March 1980 her husband gave instructions to a firm of solicitors in Queanbeyan to recover the cost of the damage done to their motor car, and damages for the injuries suffered by the plaintiff and their two children.

19. There was no direct evidence of the steps initially taken by those solicitors to pursue the claims, or of the exact instructions that they received.

20. Late in March 1980 the plaintiff's husband received a letter, dated 26 March 1980, from the Government Insurance Office ("GIO"), stating that it had been notified of the accident because it was more than likely that the third party insurance on the vehicle responsible was held by that office. It offered, if it did insure the vehicle, to meet hospital and ambulance expenses without prejudice to further claims.

21. Her husband then confirmed his instructions to the solicitors, who, under cover of a letter dated 6 June 1980, forwarded to the GIO, with the correct reference to MVC number and officer, copies of accounts for pathology services and for fees of a doctor for hospital visits to the plaintiff and her two children.

22. By letter dated 28 August 1980 the GIO acknowledged receipt of the solicitors' letter and asked for further particulars of the claim. The reference, for some unexplained reason, referred only to the two children, Amanda and Kelly. It pointed out that preliminary investigation still had to be carried out, and undertook to give the matter prompt attention when the details had been received and the necessary investigation completed.

23. By letter dated 23 February 1981 GIO asked the plaintiff's solicitors to advise it of their client's names. It stated that it had replied to a letter from the plaintiff's husband of 12 October 1980, asking for compensation for himself and his wife. It asked the solicitors to clarify exactly whom they were acting for in respect of the accident.

24. Later inspection of the solicitors' file by the plaintiff's present solicitors did not reveal any correspondence between them and GIO after that letter dated 23 February 1981.

25. On 13 October 1980, however, proceedings were commenced in the name of the plaintiff's husband against Mr Taunton to recover the cost of repairs to his motor vehicle. Concurrent writs for service in New South Wales and Queensland were issued in May 1981 and June 1981. Efforts to effect service were not successful.

26. Further proceedings were issued out of the Magistrates Court at Canberra for the property damage, but there was nothing to indicate what attempts were made to effect service.

27. The plaintiff, being initially in hospital, and having the care of young children, left the management of her claim, and that of the children, to her husband.

28. Her husband deposed to the instructions that he gave to the Queanbeyan solicitors. He at first attended frequently on the solicitor handling the claim. He was given reports about difficulties in effecting service. He made his own enquiries at Mr Taunton's last known address in the Territory, but was unable to locate him.

29. During 1981 he formed the view that there was nothing more that he personally could do. He thought that the claim by his wife for personal injuries could not proceed unless Mr Taunton could be located.

30. On a casual meeting with the solicitor in 1985 he did not obtain any further information.

31. In late 1993, during a casual conversation with a member of his present solicitor's firm, he mentioned his frustration with the case. He was advised to seek further professional advice. He did so, and instructed his wife's present solicitors to act.

32. They took steps to obtain the papers from the previous solicitors, obtained counsel's advice promptly, and brought the present proceedings.

33. The defendant's solicitor deposed to service of the writ, with which was enclosed a copy of the letter from GIO to the former solicitors dated 26 March 1980.

34. On about 13 October 1980 GIO had received from the Australian Federal Police a letter, forwarding a copy of the police traffic accident report and copies of statements by the plaintiff, her husband, and a "mechanical examination certificate" dated 13 March 1980 by Senior Constable Armstrong, a qualified motor mechanic, who had examined the truck that had been driven by Mr Taunton. It had sustained major damage to the front driver's side. Damage to the steering machinery was consistent with having been caused on impact.

35. The service brake was broken at the passenger's side rear wheel cylinder. That damage was consistent with the fracturing of a locating pin. In Senior Constable Armstrong's opinion the driver would have experienced a complete brake failure with no prior warning. Because of the damage sustained to the vehicle he could not give an opinion about the efficiency of the emergency braking system.

36. There was also a copy of a statement by Constable Heathcote, who had interviewed Mr Taunton on 13 March 1980. Mr Taunton's version of the accident was that as he came over the hill he put his foot on the brake pedal, which went to the floor. He tried to change gears, but was unable to stop. He claimed that the truck had been in good mechanical condition. He had adjusted the brakes and checked the oil a week before the accident. He did not know when the brakes had last been checked by a mechanic.

37. A sketch plan of the scene of the accident had been prepared by Constable Frome.

38. The police report disclosed that the vehicle was registered in the name of Ulladulla Frozen Foods Pty Ltd.

39. The letter from the Australian Federal Police also stated that no police action had been taken against parties involved in the accident.

40. The particulars of negligence alleged in the Statement of Claim, in addition to allegations relating to the actual driving of the truck, also included an allegation of failing to maintain it in a proper state of repair in a road worthy condition.

41. In the action as now constituted, that allegation is made against Mr Taunton, the driver. The owner, Ulladulla Frozen Foods Pty Ltd, is not a party to the action.

42. Additional facts that were agreed by the parties were that enquiries conducted by the solicitors for the defendant disclosed that;

1. The original documents once held by the Australian Federal
Police had been destroyed;
2. Mr Taunton had been located, living in Belconnen;
3. All the police involved in the investigation, except Constable
Frome, were still with the Australian Federal Police; and
4. The directors of the owner of the truck, Ulladulla Frozen Foods
Pty Ltd, had the same surname, and a letter written to one of them
at an address in Miranda on 5 September 1994 had not elicited a
reply.

43. In exercising the discretion conferred by S.36 of the Limitation Act 1985, I have regard to the following circumstances;

(a) The limitation period fixed by the Act expired in March 1986.
The period of inactivity on the plaintiff's behalf extended for a long
time, being about four years before the expiry of the limitation period
and eight years afterwards.
The reasons for the delay, as far as the plaintiff herself and her
husband are concerned, are understandable. They took what appeared to
be competent legal advice, and relied on their understanding of it.
Their former solicitor did not in terms advise them that her action
could not proceed until Mr Taunton was located, but neither did he
inform them that proceedings could be taken even if he could not be
found.
It is possible that the plaintiff might have an action in negligence
against the solicitor. The prospects of success in that action would
not be clear, as what she lost by the inaction or failure to advise was
the clear opportunity to pursue this action, which is not the same thing
as the action itself. Success on the issue of negligence would be
likely, though not certain. Complete success on the issue of
quantifying the loss would be very doubtful in such an action, in light
of the mechanical report and statements made by Mr Taunton to the
police.
(b) There is a possibility that the defendant would be prejudiced by
the delay, especially as any records kept by the owner of the vehicle
about maintenance of the brakes would probably have been destroyed by
now. On the other hand, the plaintiff bears the onus on this issue, and
is prejudiced by not being able to subpoena or inspect on third party
discovery, such records as might have existed.
I do not think that the defendant would be prejudiced by the destruction
of the original police documents. I think that the copies in evidence
on this application would be admissible at the hearing.
(c) On the other hand, the claim was brought to the notice of GIO
promptly, and it was aware in 1980 of the existence of the mechanical
findings. It was open to the defendant's insurer to have investigated
then what maintenance had been carried out on the brakes. It was not
due to the plaintiff's actions or inaction that it deferred making those
enquiries until too late.
(d) GIO did not take any steps, nor were there any steps that it should
have taken, to make available to the plaintiff means of ascertaining any
relevant facts.
(e) The plaintiff was not under any disability. The claims that may be
made by her children may still be pursued, as the periods of limitation
relevant to them have not expired. But, by contrast with the action the
subject of the decision in Noja v Civil and Civic Pty Ltd (1990) 93 ALR
224, they are not parties to this action, and I do not consider that
their continued right to sue is relevant to the exercise of discretion
in this case.
(f) The plaintiff acted promptly and reasonably once she knew that the
claim could proceed even if Mr Taunton could not be served.
(g) Steps taken by or on behalf of the plaintiff to obtain legal advice
were prompt, both immediately after the accident and once she knew that
the action could proceed.

44. In those circumstances it appears to me to be just and reasonable to extend the period of limitation to a date after the commencement of this action.

45. I make order 2 as in the Plaintiff's Notice of Motion of 25 August 1994. I will hear counsel's submissions on the consequential orders that should be made.