Cross v Phum Pty Ltd [2002] ACTSC 68 (26 July 2002)

Last Updated: 2 August 2002

Loren Lea Cross v Phum Pty Ltd [2002] ACTSC 68 (26 July 2002)

CATCHWORDS

LIMITATION ACT - Extension of time - personal injuries claim - actual prejudice to defendant

Limitation Act 1985, s. 36(2)

Supreme Court Rules O61A r1(z)

No. SC 178 of 2002

Coram: Master T Connolly

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SC 178 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: LOREN LEA CROSS

Plaintiff

AND: PHUM PTY LTD

Defendant

ORDER

Coram: Master T Connolly

Where Made: Canberra

Date of Order: 26 July 2002

THE COURT ORDERS THAT:

1. The notice of motion of 4 April 2002 is dismissed

2. Plaintiff to pay defendants costs

1. This is an application by way of notice of motion of 4 April 2002 to extend time pursuant to s 36(2) of the Limitation Act 1985 to allow the plaintiff to bring a claim for damages for personal injuries. The plaintiff seeks to sue the respondent which was the occupier of premises in Canberra City known as "Bailey's Arcade", a shopping mall. The plaintiff alleges that on the morning of 20 October 1994 she slipped on wet tiles while walking through Bailey's Arcade on her way to her then place of employment at a nearby bank. There was some delay in serving the documents on the respondent, and the matter came on for argument on 7 June 2002.

2. The Limitation Act 1985 provides that a claim for damages for personal injuries should be brought within six years in the Australian Capital Territory, but the court may extend a limitation period in a personal injuries claim if it is "just and reasonable" so to do pursuant to s 36(2) of the Act. This is a power that may be exercised by the Master (Supreme Court Rules O61A r1(z)). The Limitation Act provides guidance as to the exercise of the discretion conferred by s 36(2) as follows:

"s36(3) In exercising the powers conferred on it by subsection (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:

a) the length of and reasons for the delay on the part of the plaintiff;

b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

c) the conduct of the defendant after the cause of action occurred to the plaintiff, including the extent ( if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action.;

e) the extent to which the plaintiff acted promptly and reasonably once he or she know that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.

3. The applicant gave evidence by way of affidavit and was cross-examined. She says that at about 8.20 am on the morning of 20 October 1994 she was walking through the arcade on her way to work. She said

"as I approached the Petrie Plaza exit from the Arcade I suddenly slipped and fell heavily to the floor. The floor in question was covered in large ceramic tiles and when I fell my left foot slipped out straight in front of me. The accident happened very quickly and I had no chance to arrest my fall. When I landed on the ground I felt immediate pain in my left ankle and it was obvious to me that I had been injured. Whilst lying on the ground I noted that the tiles where I had fallen were all wet and it appeared to me as though the area had just been mopped."

4. She was helped to her feet by a female person who she did not know and cannot now identify, and she managed to walk to her place of employment. She attended a doctor and was referred to the Woden Valley Hospital, where her left ankle was x rayed and she was given crutches. She was off work for about two weeks, and then returned to work on crutches.

5. She says that about a month after the accident she spoke with either a partner at a Canberra law firm or his secretary, who she knew from business dealings at her bank. An appointment was arranged with a solicitor, whose name she does not now remember. She said in her affidavit:

"I recall he said to me words to the effect of "I don't think you've got a claim, you would be wasting your time." He also said to me words to the effect of "We act for the company that owns the Arcade and any claim you make would be vigorously defended. Really you've been pretty lucky. Your injuries were not too bad. It doesn't sound to me as though you've got a claim worth pursuing."

6. She said in cross-examination that she accepted this advice at the time, and did not think again of bringing a claim until she spoke with her present solicitor on 3 July 2001.

7. She continued with some medication and physiotherapy, and says that by early 1995 she had largely recovered from the injury although the ankle remained weak and she noticed that it was prone to inversion if she walked on uneven ground. She sustained a further accident in April 1999 when she tripped in a pothole in a Queanbeyan car park. She did not take time off work but had physiotherapy to the left ankle.

8. On 8 May 2000 she fell in a driveway while picking her child up from after school care. She was referred to a specialist, and was off work for an extended period, not returning until May 2001. She continues to have difficulties with her left ankle. She underwent extensive treatment at the hands of various specialists. Dr Griffith, a consultant surgeon, has expressed the view that the 1994 injury

"is almost certainly that in which she suffered the first major ligamentous injury to the co-lateral ligament".

9. She saw her present solicitors in respect of the October 2000 incident, and says that on 3 July 2001 she was advised that she has an arguable claim in negligence arising from the 1994 fall. She instructed her solicitors to pursue the matter.

10. Ms Cross did not bring the fall to the attention of the defendant before bringing this claim. In her affidavit and in her cross-examination she said that some time shortly after the attendance at the solicitors she noticed yellow signs in Bailey's Arcade indicating "wet floor" and orange cones. She said that she did not see such warnings on the day of the accident.

11. The defendant provided affidavit evidence from a director of the company, Mr John Notaras, and Mr Drago Brozinic, who has been regional manager of Berkley Challenge, contract cleaners, for 23 years.

12. Mr Notaras in his affidavit says that his company Phum Pty Ltd purchased Bailey's Arcade in February 1993, and he moved in to an office on the first floor of the building some time in mid 1994. He says that after he first became aware of this matter on 2 April 2002 he caused a check to be made of the general file in respect of the building and the insurance file, but found no record in either file of any complaint. It is of course the plaintiff's evidence that no complaint was ever made. He says that had a complaint been made it would have been referred to the public liability insurer. He says that for the whole of the time the company has owned the building the cleaning has been done by Berkley Challenge.

13. Mr Broznic said in his affidavit that his company has provided the cleaning service at Bailey's Arcade since the early 1980's. Throughout that time the practice has been to employ a full time cleaner on the premises, and the duty of the cleaner on a daily basis was to ensure that the premises were clean. He said that he was informed that the applicant says that she fell on 20 October 1994, and continued:

"Having been so informed, I have personally checked the records maintained by Berkeley Challenge in respect of the Building. I am unable to find any reference or notification of the alleged incident. Having made a personal check of the records, I say that Berkeley Challenge no longer has any records for 1994. Berkeley Challenge has in place a procedure whereby records are routinely destroyed after seven years. Records are only kept after that period if there is a special reason for keeping them. I am unable to identify by reference to the records the employee who was working as a cleaner in the building on 20 October 1994. Because there are no records for that year there is now no way of checking who that employee might have been. Nor is there any way for me to ascertain whether the employee engaged to clean the building on that day is still employed by the company."

14. In cross examination he said that the company had about 400 to 450 employees now, and probably had about 500 in 1994. He said that wages and taxation documents were prepared within the company. He was cross-examined in some detail, and gave answers that were at times contradictory as to precisely what he had looked for. He says that he asked his Sydney human resources people to look for any record of an accident. He says that he looked at the Canberra file in relation to this contract. He said that it was company policy to destroy records after seven years, but agreed that ongoing contracts could have documents retained for a longer period, but "only the contracts." He did seem to have some difficulty in understanding the questions, although Mr Pappas very fairly put questions again to him when it was apparent that there were difficulties.

15. He agreed that Mr Notaras, as the manager, would have regular contact with the cleaner that the company supplied, and that he did not ask if Mr Notaras remembered the name of the cleaner in 1994. He agreed he did not ask the cleaner who is there now if they knew who their predecessors were, but he said that would not be the business of the current cleaner to know. He maintained that he did not know who the cleaner was in 1994, and had no records that would show this.

16. To the extent that the plaintiff's evidence of noticing signs and warning cones when cleaning was being done about a month after her fall gives rise to any suggestion that the defendant had notice of the accident and had modified its practice as a result of the fall, I am satisfied that there are no records available of the practice at the time.

17. The law which governs the exercise of my discretion in approaching an application to extend time pursuant to s 36 of the Limitations Act is that set down by the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. McHugh J there said at 555 that

"Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case."

18. The effect of the decision in Brisbane South Regional Health Authority v Taylor is, it seems to me, that the legislature makes a presumption that the passage of time will prejudice a defendant in being able to achieve a fair trial, but that an applicant for an extension of time may bring evidence that satisfies the court that there is no presumptive prejudice. Where actual prejudice is established, however, McHugh J said (at 555) that

"the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reasons of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact."

19. In this case it is not in dispute that the plaintiff never told the defendant company that she had sustained a fall on their premises. Mr Notaras said that if any complaint had been received it would have been referred at the time to the insurer. Some seven and a half years after the incident, she seeks to extend time. The director of the company says he has no record of complaint, and that all cleaning services were provided by a contract cleaning company. The local manager of that company says that he has no records and cannot identify who the cleaner was at the time, although he conceded that he had not conducted personal interviews with employees , Mr Notaras or other tenants in the centre.

20. The real issue in this application is, it seems to me, whether the defendant has established actual prejudice. The applicant has provided information which explains why she did not bring the action at the time, in that she took legal advice that it was not worth pursuing at a time when it appeared that the injury was merely a transient sprain of an ankle. It is, on her medical evidence, only when she has sustained a further injury to the same ankle in May 2000 that she has undergone specialist investigations, and has been advised that the October 1994 accident may well have caused damage which is now causing difficulties. The plaintiff has thus established grounds which would qualify her for a favourable exercise of the s36 discretion, but the High Court made it clear in Brisbane South Regional Health Authority that a court at first instance will fall into error if it assumes that the establishment of the threshold criteria in s 36(3) will presumptively entitle an applicant to a favourable exercise of the discretion. As McHugh J said

"Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant." (at 555)

21. If a defendant establishes actual prejudice, an applicant who has achieved the qualifying factors will still not succeed, because if there is actual prejudice there can not be a fair trial.

22. The issue at any trial here will be liability. The applicant says that she slipped on a floor which she noticed was wet. The issue at trial would be whether the floor was wet due to the negligence of the defendant, and that would go to the way in which the defendant organised or supervised the cleaning. The defendant's case is that they have established that they do not know and can not know who the cleaner was at the time.

23. Mr Pappas for the applicant was critical of the nature of the defendant's evidence, pointing out that Mr Notaras did not say that he had no personal knowledge of who the cleaner was, and Mr Brosnic did not undertake personal interviews to see if any current or former known employee had any knowledge of who was working at Bailey's Arcade in 1994, and did not ask Mr Notaras.

24. It seems to me that it would always be open to be critical of the extent to which enquires were conducted. The evidence is uncontradicted that the Mr Brosnic has searched what files he has and does not know who the cleaner was. He says the company policy is to destroy documents after seven years, and this is of course consistent with obligations under taxation laws. I am satisfied that Mr Brosnic has established that the cleaning company does not know who was the cleaner in 1994. I do not find that his evidence that he has not conducted interviews undermines this finding.

25. It was submitted that I could draw inferences from Mr Notaras' affidavit that he might have personal knowledge of who the cleaner was. It seems to me that this would be to fall into error in drawing an impermissible inference. Mr Notaras was not required for cross examination, and it seems to me that in those circumstances I should find only what he sets out in his affidavit, that is that he has no records of any complaint of a fall in October 1994, and that he knows who the cleaning company was.

26. On all of the evidence I am satisfied that actual prejudice has been established by the defendant, and accordingly, I am not satisfied that a fair trial could be conducted on the issue of liability in this matter. In accordance with what I understand the law to require, I therefore dismiss the application for an extension of time with costs.

I certify that this and the twenty six (26) preceding pages are a true copy of the Reasons for Judgment herein of the Master T. Connolly.

Associate:

Date: 26 July 2002

Counsel for the Plaintiff: Mr J Pappas

Instructing Solicitors: John Nicholl & Co

Counsel for the Defendant: Mr S Pilkinton

Instructing Solicitors: Phillips Fox

Dates of hearing: 7 June 2002

Date of judgment: 26 July 2002