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Supreme Court of the ACT |
Last Updated: 30 September 2008
KELLY HAMILTON v LEANNE MAREE MADDEN
[2007] ACTSC
89 (9 November 2007)
Limitation Act 1985, s 36
Court Procedures Rules 2006, r 74, r
443
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Nguyen v
Jajic [2007] ACTSC 12 (23 February 2007)
Judge: Master Harper
Supreme Court of the ACT
Date: 9 November
2007
IN THE SUPREME COURT OF THE )
) No. SC 833 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: KELLY HAMILTON
Plaintiff
AND: LEANNE MAREE MADDEN
Defendant
ORDER
Judge: Master Harper
Date: 9 November 2007
Place: Canberra
THE
COURT ORDERS THAT:
1. In this action for damages for personal injury arising out of a motor
accident, the plaintiff applies for an extension of the
limitation period. The
defendant applies for summary judgment because the action was commenced out of
time: the fate of that application
will depend upon the outcome of the extension
application by the plaintiff.
2. The cause of action arose on 6 June 2000.
The action was not commenced until 3 November 2006, about five months out
of time.
Although there is contemporaneous corroboration that the plaintiff
suffered an injury to the right knee in the collision (in the
form of an x-ray
report dated 26 June 2000 addressed to her general practitioner), she did not
seek legal advice about her entitlement
to claim damages until 7 December
2004. On 16 October 2004 she was injured in another motor accident, and she
consulted her
solicitors, Maliganis Edwards Johnson, about the second accident.
On taking instructions, they formed the view that she appeared
to have a right
to damages arising from the first accident also. NRMA Insurance Limited was
fortuitously the third-party insurer
of both of the vehicles whose drivers had
been apparently at fault in the two accidents.
3. The plaintiff’s
solicitors had the plaintiff sign a completed personal injury claim notification
form in relation to the
2000 accident, which they sent to NRMA on
8 December 2004. They then obtained a copy of the police report into the
circumstances
of the collision, and sent a copy of this to NRMA on 7 January
2005. The police report recorded that the accident had been a single
vehicle
collision a little after midnight on 7 June 2000. The defendant had been driving
a Holden car on McLuckie Crescent, Banks,
when she had lost control and struck a
light pole and junction box. The plaintiff was a passenger. The accident was
described as
follows:
Vehicle parked behind another vehicle on battleaxe
block of 40A McLuckie Crescent Banks. Owner Darren Ray Fitzpatrick... gave keys
to Leanne Madden. Madden reversed vehicle out of driveway to allow the other
vehicle to leave. Madden decides to drive around the
block as she cannot reverse
or turn the vehicle around within the confines of the street to return to back
into the driveway. Vehicle
driven to the end of McLuckie Crescent and turn left
onto Wiburd, left on Tom Roberts before the driver lost control and collided
with the light pole and junction box... outside 1 McLuckie Crescent. Damage to
the vehicle, dent through the driver’s side
headlight and the front
spoiler pulled from vehicle. The windscreen was damaged. Police initially of the
opinion that the passenger
had struck her head on the screen. However enquiries
revealed that the windscreen was damaged prior to the accident. Light pole
knocked
over and junction box damaged.
Driver – when located Leanne
Madden subject to a screening test the result of which was positive. Madden
conveyed to Tuggeranong
Police Station where she participated in a breath
analysis recording a reading of 0.08 grams of alcohol per 100 millilitres of
blood.
Further police enquiries reveal that the reading was illegitimate due to
the expiry of the two hours time limit... Leanne Madden
issued with two TINs,
one for negligent driving and the other for unaccompanied learner. Driver
participated in a TROI - start time
2.40 finish time 3.06 hours. Exhibit number
42753.
4. The police report was prepared by Constable SJ O’Callaghan.
He noted the defendant’s address as shown on her learner’s
licence
as 38/35 Popplewell Place, Gordon, but recorded her address at the time of the
accident as 9/6 Wilkins Street, Mawson. He
also recorded a fixed-line telephone
number and a mobile telephone number for Ms Madden. In addition, contact details
were recorded
for Mr Fitzpatrick and for two other persons shown as witnesses,
Nathan Arthur Sepaitis and Kelly Ann Cahill.
5. During the following months
(January to April 2005) some correspondence took place between the
plaintiff’s solicitors and
NRMA about the adequacy and timeliness of the
notification form having regard to the requirements of the Civil Law (Wrongs)
Act 2002.
6. On 4 April 2005, NRMA wrote to the plaintiff’s
solicitors, in relation to the 2000 accident, in the following terms:
...You
have provided all of the information required under the Civil Law (Wrongs) Act
2002 and the complying notice is accepted by NRMA Insurance. The inquiries
regarding the above motor vehicle accident are now complete.
Based on the
investigations carried out to date we deny liability. Enclosed is a copy of the
investigation report. Please advise
if your client will consent to being
interviewed...
7. The letter enclosed a copy of a report by a firm of private
enquiry agents, much of which had been rendered illegible by the application
of
a black felt pen, apparently in a misconceived if laudable attempt to avoid
infringing privacy legislation. An unedited copy
of the report was tendered on
the hearing of the applications, and reveals that in February 2005 an
investigator, Mr Streat, took
a signed statement from Darren Fitzpatrick which
was generally consistent with the police report. Mr Streat reported that he
spoke
to Nathan Sepaitis, who remembered attending parties at the house in
Mcluckie Crescent but did not recall the incident in question,
and did not know
the plaintiff or the defendant. The other witness recorded in the police
report, Kelly Cahill, had been his girlfriend
during 2000 but had moved to Port
Macquarie in 2001, and Mr Sepaitis had no knowledge of her whereabouts. Mr
Streat took some photographs
of the general area where the collision took
place.
8. On 20 April 2005, NRMA wrote to the plaintiff’s solicitors
asking for detailed particulars going to the quantum of the plaintiff’s
claim. These were provided on 21 June 2006. By that date, the limitation
period had expired, though it is clear that the plaintiff’s
solicitors did
not advert to this.
9. During the hearing I drew attention to the mention
in the police report of a taped record of interview. The hearing was adjourned
to enable the production of the tape on subpoena, and the transcription of the
tape by Auscript Australasia Pty Ltd. The transcript
was tendered, running to
fourteen pages and recording 165 questions and answers. At answer 34, the
defendant said:
...Firstly, I did take it.... I was at a friend’s
place, I’d been drinking at the club with the owner of the car. He
had
driven back to a friend’s place, we’d all been in my friend’s
place. Another person was leaving, and his car
was parked behind the other
person’s. He was intoxicated, I was intoxicated, he knew I was drunk
because we’d all been
drinking together and I was mucking around, I said
“I’ll reverse out”. And he goes, “well, here,”
and he threw me the keys, and I said, “are you serious?” and he
said, “yep”. So I reversed the car out of
the driveway and the
other car came out after me but instead of reversing, I reversed and then drove
forward. Now I couldn’t
reverse all the way back into the driveway again,
so I had to go around the block, and I went around the block and I turned the
first
corner fine, then the second corner, and the corner coming back I remember
being just, being and then I don’t remember anything
about that till
about, oh, I don’t, till I opened the door, and Kelly was next to me and
Kelly said, “run”. And
I just wasn’t thinking and I just got
out of the car and I ran, I was bawling my eyes out, I ran all the way home and
just
sort of locked myself in the house, and thinking, yeah, no one can get me.
And that’s all I know that happened. I’m
not sure what happened
afterwards, I’m not sure what he did. I’m not sure what the other
person did.
10. In subsequent questions, the defendant said that she had
gone to the Lanyon Sports Club earlier that night, at about 8:30pm, walking
there with the plaintiff. The plaintiff at that time had been living with the
defendant and her mother. The defendant said that
she and the plaintiff had two
drinks at the club, and that they had left at about 10:15 or 10:20 pm. A
friend, Darren (presumably
Darren Fitzpatrick) drove them to the house of
another friend, Kelly (presumably Kelly Cahill).
11. The defendant said
that at the time of the collision she was wearing a seatbelt but was unable to
say whether or not the plaintiff
was wearing one. The defendant was insistent
that she had had only two drinks, schooners of beer, at the club over a period
of two
hours, well prior to the collision.
12. The present action was
commenced, as I have previously said, on 3 November 2006. Service was effected
on 22 November by handing
a copy of the originating claim to a Mrs Madden,
apparently the defendant’s mother, at her home at 3 Haines Street,
Curtin.
13. The defendant’s solicitors, DLA Phillips Fox, were then
instructed by NRMA. They were apparently instructed at about the
same time to
act for the defendant in the action brought by the plaintiff arising out of her
second accident, (Hamilton v Barrett,
SC 787 of 2006). They wrote to the
plaintiff’s solicitors on 13 February 2007 seeking particulars in the
Barrett action, but
it is not apparent that there was any correspondence in
relation to the present action. On 7 March 2007 the defendant’s
solicitors
filed a notice of intention to respond and a defence. The defence
did not address any of the factual assertions made in the statement
of claim,
but simply said;
The defendant relies on the following facts in defence of
the claim;
1. The alleged cause of action did not arise within six years of
the proceedings being instituted on behalf of the plaintiff, and
the plaintiff
is barred from bringing any claim arising out of injuries she allegedly
sustained in the subject accident.
The defendant’s solicitors followed
this almost immediately with an application for summary judgement. Unless the
plaintiff
persuades the court to exercise its discretion in her favour by
extending time, it would seem inevitable that the application will
succeed.
14. Rule 443, which applies to motor vehicle personal injury claims,
relevantly provides as follows:
443 (2) The defendant must, in the defence,
specifically admit or deny every material allegation of fact in the originating
claim
and statement of claim, including any allegation by way of particulars.
(3) The allegation is taken to be admitted if the defendant does not comply
with sub-rule (2) in relation to it.
...
(6) The defendant must plead
every ground of defence to be relied on, together with the facts necessary to
establish each ground.
15. At the time the defence was delivered, the
plaintiff’s application for an extension of time had not been made. The
solicitors
for the defendant must be taken to have formed the view that their
client had an unanswerable defence based on the limitation point,
and that it
was hence unnecessary to respond specifically to the allegations of fact in the
statement of claim. Counsel for the
plaintiff did not submit that I should hold
the defendant to rule 443, nor did counsel for the defendant advert to the rule.
I remind
myself that the insurer denied liability for the plaintiff’s
claim well before the expiry of the limitation period. The hearing
of the
applications was conducted on the footing that if the extension sought by the
plaintiff were to be granted, there would be
prejudice to the defendant in
relation to liability. I think that I must approach the applications on the
basis that if the extension
is granted, the defendant will seek to deliver an
amended defence addressing the merits of the plaintiff’s claim.
16. The major area of prejudice asserted by the solicitors for the defendant
is that they have been unable to locate and interview
her. It would follow that
they would expect that they would not be in a position to call her to give
evidence on hearing. They
say that NRMA instructed a firm of investigators to
interview the defendant in January 2005, and that the investigators told NRMA
that they were unable to locate her. In January 2007, the defendant’s
solicitors conducted an electoral roll search, apparently
limited to the
Australian Capital Territory, and found a Leanne Margaret Madden, but not a
Leanne Maree Madden. The fixed-line telephone
number given by the defendant in
the police report had been disconnected, and calls to the mobile number were
unanswered, with no
facility to leave a message. NRMA wrote to the defendant in
December 2004 at the address she had given the police but the letter
was
returned unclaimed. The solicitors searched the White Pages online for any
person named Madden at the Curtin address where service
had been effected, with
two results: L Madden with a mobile number, and W J Madden with a fixed-line
number. In May 2007 a solicitor
made contact on the fixed-line number with a
male who said “Leanne is not here. What are you calling about?.”
Later
in the conversation, the male said “Leanne is not here. If I happen
to see her I’ll tell her you called”.
17. Also in May, the
solicitors sent a letter addressed to the defendant at the Curtin address by
express post. The letter was not
returned but there was no response to it.
Also during May, one of the solicitors called the mobile number. A woman
answered but
denied that she was Leanne Madden. She said that she was her
cousin, and sometimes babysat her children. She said that she would
pass the
message on to Leanne if she saw her.
18. I am satisfied from this evidence,
if I had any doubt about it, that service of the originating process more
probably than not
brought the process to the attention of the defendant, and
that more probably than not the defendant was informed of the attempts
by the
solicitors to contact her. I also infer that the defendant has no wish to be
involved in the proceedings, and that she is
unlikely to take the initiative in
contacting the insurer or the solicitors, though I have no doubt that she is
still available and
I suspect that more determined efforts may find her in time
to give evidence at the hearing.
19. Having said that, it seems to me that
the answers she gave to the police in the record of interview on the night of
the accident
are far more likely to be accepted as factually accurate than any
oral evidence which she might now give, seven years later. For
this reason it
seems to me highly unlikely that the insurer and the solicitors would gain any
benefit from finding her, interviewing
her or calling her to give evidence.
20. I completed the hearing of the application on 25 May 2007. On 13 June,
my associate received a letter from the solicitors for
the defendant stating
that further information had come to hand which provided some hope that the
solicitors might be able to contact
the defendant and confer with her. I was
asked to defer making a decision. Having heard nothing further I re-listed the
matter.
This prompted a letter from the defendant’s solicitors dated 22
August stating that efforts to contact the defendant with
the assistance of
investigators had proved fruitless. They were no longer confident that they
would be able to locate her, and hence
there had been no significant change in
circumstances since I had reserved my decision. There was nothing further they
wished to
put to the Court.
21. The plaintiff’s solicitors sent their
client to Dr G G Griffith, consultant surgeon, on 26 April 2005, for the
purposes
of a report dealing with both accidents. Dr Griffith in his report of
2 May 2005 set out a history obtained from the plaintiff as
to the circumstances
of the 2000 accident, which was consistent with the police report and record of
interview, with the addition
of an admission by the plaintiff to him that she
had not been wearing a seatbelt. She confirmed to him that she and the
defendant
had both consumed alcohol. Dr Griffith also took a history in
relation to the plaintiff’s injury. The plaintiff told him
that both of
her knees had struck the glove box of the car on impact. Within a few hours,
her right knee had swollen to a much greater
extent than the left, and was the
site of heat and burning pain. Her father took her to hospital. X-rays showed
no abnormality,
but the pain became greater the following day. She took
painkillers. Her knee symptoms slowly improved. In late 2002 or early
2003 she
developed further pain in both knees, which she thought might have been
activity-related. She saw a general practitioner
and an orthopaedic surgeon
during 2003, from whom no reports were available. The surgeon, Dr Coyle,
performed an arthroscopy in
November 2003; the plaintiff believed he had
performed a chondroplasty and possibly a partial medial meniscectomy. The
swelling
remitted and previous crepitus was markedly reduced. Some symptoms
continued, but the plaintiff improved slowly and was minimally
symptomatic by
the time of the 2004 accident.
22. The defendant has, of course, lost any
opportunity for a medical examination of the plaintiff between the two
accidents. So too
have her own solicitors. The medical evidence in relation to
the first accident will be limited to the records of the treating doctors.
However, considering that the plaintiff told Dr Griffith in April 2005 that her
knee symptoms had almost disappeared by October
2004, that statement is more
likely to be accepted by a court hearing the action than anything inconsistent
with it which the plaintiff
might give in oral evidence three or more years
later. Hence it seems to me that the claim arising out of the first accident is
not much more than a claim for a closed period, and that those representing the
interests of the defendant have not suffered any
measurable prejudice arising
from the loss of opportunity to have the plaintiff examined prior to the second
accident. As a practical
matter, I must recognise that if the plaintiff’s
solicitors had commenced proceedings properly and within time, the opportunity
would have already been lost. As against this, in exercising this discretion I
must look at the whole of the period of delay, and
must recognise that the
plaintiff was herself responsible, if anyone was, for the delay from 2000 until
late 2004. Even looking
at the matter from that perspective, it does not seem
to me that there has been any measurable prejudice to the defendant so far
as
quantum of damages is concerned.
23. The discretion to extend time is
conferred on the court by s 36 of the Limitation Act 1985, which relevantly
provides as follows:
(1) This section applies to any action for damages, if
the damages claimed consist of or include damages in relation to personal
injuries
to any person.
(2) If an application is made to a court by a person
claiming to have a cause of action to which this section applies, the court,
subject to subsection (3) and after hearing such of the persons likely to be
affected by that application as it considers appropriate,
may, if it decides
that it is just and reasonable so to do, order that the period within which an
action on the cause of action may
be brought be extended for the period that it
determines.
(3) In exercising the powers given to it by subsection (2), a
court shall have regard to all the circumstances of the case, including,
for
example, 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 the action accrued to the plaintiff, including
the extent (if any) to which the
defendant took steps to make available to the
plaintiff means of ascertaining facts that were or might be relevant to the
cause of
action of the plaintiff against the defendant;
...
(e) The extent
to which the plaintiff acted promptly and reasonably once he or she knew 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 the advice the plaintiff
may have
received.
24. The section goes on to provide that the discretion may be
exercised notwithstanding that the limitation period has already expired,
and
notwithstanding that an action has already been commenced.
25. The principles
to be applied in exercising the discretion were set out by the High Court of
Australia in Brisbane South Regional
Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR
541. The plaintiff in that case claimed damages for negligence and breach of
statutory duty in respect of a failure by an employed gynaecologist
to give
proper medical advice. On the recommendation of the gynaecologist, she had
undergone a hysterectomy which, she said, had
been unnecessary and
inappropriate. These events had taken place in 1979: by the time the plaintiff
made her application, the gynaecologist
was living in Hong Kong. Attempts by
the solicitors for the Health Authority to contact him were unsuccessful. As
Toohey and Gummow
JJ explained at p 546, it was apparent that if the proposed
action were to proceed to trial, the crucial issue would be what was
said during
the conversation then more than seventeen years earlier between the intending
plaintiff and the gynaecologist. The limitation
period was three years. An
application for extension of time had been refused in the District Court. The
Queensland Court of Appeal
had upheld the appeal and granted the extension. The
High Court by majority (Dawson, Toohey, McHugh and Gummow JJ; Kirby J
dissenting)
allowed the appeal and restored the orders made in the District
Court. As Toohey and Gummow JJ said at p 548, a material consideration
was
whether, by reason of the time that had elapsed, a fair trial was possible.
This was a question to be answered by reference
to the situation at the time of
the application, and it was no answer to a claim of prejudice to say that in any
event, the defendant
might have suffered some prejudice if the applicant had not
brought proceedings until just before the limitation period expired.
26. McHugh J at p 552 identified four broad rationales for the enactment of
limitation periods. First, relevant evidence was likely
to be lost as time went
by. Second, it was oppressive to a defendant to allow an action to be brought
long after the circumstances
which gave rise to it had passed. Third, people
should be able to arrange their affairs and utilise their resources on the basis
that claims could no longer be made against them. Insurers had a particular
interest in knowing that they had no liabilities beyond
a definite period.
Fourth, the public interest required that disputes be settled as quickly as
possible.
27. McHugh J made it clear at p 551 that a statutory provision such
as s 36 of the Limitation Act was not to be read as giving an applicant a
presumptive right to an order upon satisfying listed conditions. The applicant
bore
an onus of showing that the justice of the case required the exercise of
the discretion in her favour. The longer the delay in commencing
proceedings,
the more likely it was that the case would be decided on less evidence than was
available to the parties at the time
the cause of action arose. In the case
before the court, quite apart from proved prejudice, the long delay gave rise to
a general
presumption of prejudice. It was probable in the ordinary course of
events that the plaintiff had discussed her operation and the
reasons for it
with friends and relatives and perhaps nursing staff. If the action had been
commenced within the limitation period,
one or more persons in those categories
might have been able to provide evidence or information favourable to the
defendant. By
the time an application for extension was made, it was likely
that any such conversations would no longer be in the memory of the
participants. The finding of actual prejudice, and the possibility of other
prejudice, gave rise to an overpowering case for resisting
the application (at p
556).
28. In a case like Brisbane South v Taylor, where success in the action
depends on findings of fact about a conversation which took
place many years
ago, the prejudice is obvious. The longer the delay the greater the prejudice,
particularly in cases where evidence
about conversations is crucial.
29. Counsel for the defendant relied on a decision of Connolly J in Nguyen v
Jajic [2007] ACTSC 12 , in which his Honour dismissed an appeal from a
Magistrate who had refused an application to extend a limitation period in
relation
to a motor vehicle accident. In that matter, the plaintiff had served
a personal injury insurance form a month after the accident,
but had done
nothing more until five years later when he instructed solicitors. The
applicant gave evidence before the Magistrate
but the solicitor did not, and the
Magistrate found that there was no explanation for the delay between instructing
the solicitor
and the expiry of the limitation period. The solicitor had had
about eight months to start proceedings, had not done so and had
given no
explanation for the delay. There had been no medical evidence to support the
application. Connolly J found that the Magistrate
had not fallen into
appealable error in concluding that the application had not satisfied the burden
of establishing that the discretion
should be exercised in her favour.
30. It seems to me that the present application is factually distinguishable
from both Brisbane South v Taylor and Nguyen v Jajic.
In the present case the
solicitor has accepted responsibility for the delay and explained that it
happened because of an oversight
by the firm. The defendant and its insurer
have been in possession of as much information about liability and damages as
the plaintiff’s
solicitors since soon after the latter were instructed.
The insurer has been on notice since late 2004 that the plaintiff was
represented
by a solicitor and intended to claim damages.
31. For the reasons
I have explained above, I am satisfied that there is not likely to be any
significant prejudice to the defendant
in relation to either liability or
quantum if the extension is granted. This is not a case where the insurer could
reasonably have
assumed when the limitation period expired that its liability
had been extinguished. In the first place, the insurer was by then
well aware
that the plaintiff was legally represented and was pursuing a claim. Secondly,
provided that the originating process
is filed within the limitation period,
there is no obligation on the plaintiff to serve it immediately. By virtue of
rule 74 of the Court Procedures Rules 2006, an originating process is valid for
service for one year from the date of filing. A prudent insurer would
accordingly wait for
a year after expiry of a limitation period before arranging
its affairs on the assumption that its liability had been
extinguished.
32. Having regard in particular to the fact that at the time
the limitation period expired, the plaintiff’s solicitors and the
insurer
were in communication, and that proceedings were commenced only a matter of
months after expiry of the limitation period,
I am satisfied on balance that the
circumstances of the case make it just and reasonable that the limitation period
be extended.
I order that the period within which the action may be brought be
extended to 3 November 2006, the date of filing of the originating
claim. The
defendant’s application for summary judgment must be dismissed.
33. As
to costs, the plaintiff comes to the court seeking an indulgence. The defendant
has acted reasonably in my view in opposing
the application, and is entitled to
an order for costs. The costs should not be recoverable immediately, but on the
making of final
orders in the action. That is to say, the defendant’s
costs of the application for extension should be the defendant's costs
in any
event. There will be no order for costs in relation to the defendant’s
application.
34. Although one could mount a case for some criticism of the
plaintiff personally for not seeking legal advice for more than four
years, the
reality is that the application for extension has been made necessary by an
oversight by her solicitors. It is unnecessary
for me to make any specific
orders to reflect this: I simply express, probably unnecessarily, my view that
it is the solicitors rather
than the plaintiff personally who should ultimately
bear the responsibility for the costs of the extension application. This is
something which will no doubt be achieved by an adjustment at the conclusion of
the matter.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 9 November 2007
Counsel for the plaintiff: Mr D P Shillington
Solicitors for the
plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr M A
McDonogh
Solicitors for the defendant: DLA Phillips Fox
Date of
hearing: 20 April, 25 May 2007
Date of judgment: 9 November 2007
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