Brown v Haureliuk [2011] ACTSC 9 (31 January 2011)

Last Updated: 7 February 2011

BENJAMIN LUKE BROWN v RICHARD HAURELIUK

[2011] ACTSC 9 (31 January 2011)

LIMITATION OF ACTIONS – suspension of limitation period as a result of disability – plaintiff substantially impeded in the management of his affairs in relation to cause of action – lacked capacity to make rational decisions – declaration that limitation period suspended for duration of disability

PRACTICE AND PROCEDURE – notice of claim – failure to comply – whether reasonable excuse – extent of prejudice to defendant – whether court should exercise discretion to allow plaintiff to proceed with claim

Civil Law (Wrongs) Act 2002 (ACT)

Court Procedures Rules 2006 (ACT)

Limitation Act 1969 (NSW)

Limitation Act 1985 (ACT)

A v D (1995) 127FLR 372

Al-Rawahi v Niazi (2006) 203FLR 94

Arnold v Commonwealth & Anor (Miles CJ, unreported, ACT Supreme Court), 30 November 1995)

Doyle v Gillespie [2010] ACTSC 21

Goodwin v Smith (Miles CJ, unreported, ACT Supreme Court, 10 December 1990)

McGregor v Franklin (2006) 201FLR 303

State of New South Wales v Harlum [2007] NSWCA 120

No. SC 547 of 2009

Judge: Master Harper

Supreme Court of the ACT

Date: 31 January 2011

IN THE SUPREME COURT OF THE )

) No. SC 547 of 2009

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BENJAMIN LUKE BROWN

Plaintiff

AND: RICHARD HAURELIUK

Defendant

ORDER

Judge: Master Harper

Date: 31 January 2011

Place: Canberra

THE COURT DECLARES THAT:

1. the running of the limitation period was suspended for the duration of the plaintiff’s disability between 8 June 2008 and 9 January 2009.

2. the action was commenced within the time prescribed by the Limitation Act 1985 (ACT).

THE COURT ORDERS THAT:

3. the costs of the plaintiff’s application of 24 September 2010 be costs in the cause.

4. the plaintiff be authorised to proceed further with the action despite his failure to give a complying notice of claim under the Civil Law (Wrongs) Act 2002.

5. the plaintiff pay the defendant’s costs of the application of 22 December 2009.

6. those costs not be recoverable until final orders are made in the action.

1. There are two applications before the court, brought by the plaintiff in this action for damages for personal injury arising out of a motor vehicle collision. The plaintiff was a passenger in a car which was struck from behind by a car owned by the defendant at Monash on 30 November 2005.

2. The present action was commenced on 9 June 2009.

3. On 8 October 2009 the defendant filed a conditional notice of intention to respond. Making the notice conditional was misconceived: there is no question that the court has jurisdiction to hear and determine the action. In the event, the defendant did not make any application challenging the jurisdiction of the court, and the notice became unconditional by operation of rule 111(4) of the Court Procedures Rules 2006 (ACT).

4. The defendant delivered a defence on 28 May 2010, admitting breach of duty of care but putting the plaintiff to proof as to damages, and, relevantly for the present applications, asserting that the action is not maintainable on two bases: firstly, that no valid notice of claim had been lodged pursuant to section 51 of the Civil Law (Wrongs) Act 2002 (ACT), and secondly that it was statute-barred by section 16B of the Limitation Act 1985 (ACT).

5. The plaintiff has filed a reply, saying that the non-compliance with the Civil Law (Wrongs) Act has been remedied, and that the action is not statute-barred because the plaintiff suffered a disability pursuant to section 30 of the Limitation Act during the limitation period such as to stop time running for the duration of the disability.

6. The plaintiff applied in December 2009 for leave to proceed further with the claim despite non-compliance with the Civil Law (Wrongs) Act. On 24 May 2010 the plaintiff filed an amended application asking for a declaration that the plaintiff had remedied the non-compliance with that Act, or in the alternative for leave to proceed despite non-compliance.

7. On 16 December 2010 the plaintiff made application for a declaration that the running of time for limitation purposes be suspended between 6 June 2008 and 20 May 2009 by reason of a disability of the plaintiff, and a declaration that time not commence to run until 6 June 2008. The grounds stated in the applications overlap and may be summarised in a combined form as follows:

(a) The plaintiff was involved in a motor vehicle accident on 30 November 2005.

(b) He suffered injury to his neck.

(c) He did not seek medical advice about his neck injury until 5 June 2008.

(d) He subsequently suffered depression due to his injury.

(e) He did not instruct lawyers until 25 May 2009.

(f) He commenced proceedings on 9 June 2009.

(g) He provided the defendant with a personal injury claim notification form on 12 October 2009.

(h) The defendant’s insurer has notified the plaintiff that it is not satisfied that the notice of claim is a complying notice of claim.

(i) The defendant does not waive the non-compliance.

(j) The plaintiff seeks relief pursuant to section 59(c) of the Civil Law (Wrongs) Act.

8. The plaintiff has sworn two affidavits in support of the applications. The following is a summary of the first affidavit.

9. The plaintiff was born in 1981. He was twenty-four when the accident happened and is now twenty-nine. At about 6:00 pm on the day of the accident, he and a friend were driving home from the local shops. His friend was driving and he was a front seat passenger. As they stopped to give way before turning right into the driveway, another car travelling behind did not stop and ran into the rear of their vehicle. The impact was sufficiently severe to cause both front seats to collapse. The plaintiff says that he was in shock after the accident and thought he “had whiplash”. It was a Sunday night. He went to work the next day, as a casual labourer with Ultimate Productions Services. He continued to work although he experienced neck pain occasionally. If it was bad he took Nurofen. In April 2008 he could no longer work because of his neck, and he left his employment. He has not worked since, except for a period of three hours.

10. On 5 June 2008 his neck pain was extremely severe. He went to the Phillip Medical and Dental Centre where he saw Dr Tyler. She referred him for a CT scan of the cervical spine, which he underwent the next day. The day after that he went to the Emergency Department at the Canberra Hospital because of severe neck pain causing headache and vomiting. He was seen at the hospital by a neurosurgeon, Dr Khurana. He says that Dr Khurana told him that he was likely to require surgery to the cervical spine, although this is not corroborated by contemporaneous records and no report of Dr Khurana is in evidence. The plaintiff went back to Dr Tyler on 10 June 2008.

11. The plaintiff said in his affidavit “I went through a rough patch between June and December 2008. I felt pretty low and down and became a heavy drug user. I was living with my girlfriend and was supported by her. I just tried to ignore my neck pain and the advice by Dr Khurana because I did not want to face it.”. On 26 October 2008, the plaintiff says that he was taken to the Canberra Hospital by police, where he “was examined by a general practitioner and released back into custody”.

12. In November 2008, he says that he was charged with property damage. He pleaded guilty and entered a good behaviour bond. At the time of his court appearance, on 3 December 2008, he asked the solicitor appearing for him, a Mr Frank Wilson, whether he knew anyone who could help him with a motor vehicle accident claim. Mr Wilson responded in the affirmative but nothing more came of this. The plaintiff says that he tried calling Mr Wilson and left a message but did not hear anything further. He did not give Mr Wilson any details about the accident.

13. In January 2009 he went back to Dr Tyler, who diagnosed depression and prescribed Avanza. Later in the same month he was also prescribed Tegretol.

14. In May 2009 the plaintiff saw an advertisement on television for his present solicitors, Blumers. He called and made an appointment for 21 May 2009, when he instructed the firm to act for him in the present proceedings.

15. A report of the CT scan of 6 June 2008 identifies a large disc protrusion at C5-6 extending towards the left neural exit foramen, impinging on the thecal sac and spinal cord. The radiologist suggested MRI scanning to evaluate this further. It does not appear that this suggestion was taken up. The radiologist had been given a history of neck pain following a motor vehicle accident one year earlier. Notwithstanding this the radiologist did not express any opinion about any causative link between the car accident and the disc protrusion, and would not in the normal course have been expected to do so.

16. A Canberra Hospital discharge letter dated 8 June 2008 addressed to the plaintiff’s general practitioner concludes “at this stage the plan from neurosurgery is for discharge home on oral analgesia and outpatient follow-up with Dr Khurana.”. The letter says nothing about any consideration of operative treatment.

17. In a further affidavit in support of the application for extension of the limitation period, the plaintiff goes into more detail about his background. He describes himself as an only child and adopted. When he was about five years old his (adoptive) mother died during a heart operation. This had been expected to be a routine procedure and the death was devastating for the plaintiff. About a year later his grandmother (presumably his father’s mother) moved in with his father and the three lived together. When the plaintiff was about ten, his father began a relationship with a new partner. The plaintiff recalled being told at about that time that he had attention deficit hyperactivity disorder, for which he took medication until the age of about fifteen. At age thirteen “the relationship between my father, stepmother and myself had deteriorated to the point where we could no longer live together”. He left home and lived with a friend for a short time, and subsequently lived in refuges in Canberra and Queanbeyan. When he was about fifteen he went to Berridale and lived for about a year with an uncle in an attempt to change his lifestyle, return to school and complete year 10. The attempt was unsuccessful. By the time he was eighteen he had had various unskilled jobs, and periods on Centrelink benefits. Between 1997 and 2008 he was in trouble with the police a number of times.

18. When he was about eighteen he and his then girlfriend had a child, a boy now aged eleven, with whom he has had no contact since the age of three. The relationship ended at that time in circumstances which resulted in the plaintiff spending three months in prison on remand. After his release he worked for a few months as a yardman and detailer with Rolfe Classic BMW in Canberra, and later for the Battery Factory, also for a few months. During this time he did occasional weekend work as a “roadie” with a band.

19. In the second affidavit the plaintiff expanded somewhat on his relationship with the girlfriend he was living with in 2008. He said that during this time he was unable to work and spent his time living in a caravan behind a house with his girlfriend. He said he was worried and scared about having an operation because of what had happened to his mother. He had used drugs and alcohol previously, and started using them again. His relationship with his girlfriend became strained. They argued and fought. The plaintiff thought that he became depressed, isolated and paranoid, and that this was what had led to his trouble with the police in October 2008. By 26 October 2008, he had broken up with his partner and was suicidal. He had been to the caravan and vandalised it. In the process he had cut into pieces items of his girlfriend’s underwear. When apprehended by the police he was in possession of a knife with a 10cm blade and a Samurai sword.

20. In June 2010 the plaintiff became a father for the second time. The plaintiff in his affidavit does not descend to further detail about his relationship with the mother or child.

21. The plaintiff’s solicitor deposes that, apparently coincidentally, her firm acted for the driver of the vehicle in which the plaintiff was a passenger in a claim for damages for personal injury arising out of the same collision. The solicitors for the defendant in this matter acted for the defendant. The insurer admitted breach of duty of care and the proceedings were settled in September 2008 by consent judgment. This evidence satisfies me that the defendant and, more to the point, his insurer, are at no disadvantage in relation to liability by reason of the plaintiff’s delay in giving notice of intention to claim and in commencing proceedings.

22. The plaintiff’s solicitors arranged for their client to be seen by Dr William Knox, psychiatrist, in November 2009 and Dr Ron Brooder, neurologist, in January 2010. The defendant’s solicitors have had him assessed by Dr F H Roldan, clinical psychologist, and Dr Ross Mellick, neurologist, both in February 2010. Their reports are in evidence before me. They are principally relevant to the issue of whether the plaintiff was a person under a disability, as that expression is defined in the Limitation Act, for some part of the limitation period.

23. It is common ground that the limitation period applicable to the plaintiff’s claim is three years, fixed by section 16B of the Limitation Act. Section 16B applies to causes of action for damages for personal injury arising on and after 9 September 2003, prior to which the limitation period had been the general period of six years fixed by section 11. Section 16B applies to personal injury claims other than work-related claims. The plaintiff’s claim is not a work-related claim, and in the normal course would be statute-barred unless proceedings were instituted within three years of the date of injury. There is a further exception, not relevant here, where the injured person does not immediately know that he or she has suffered an injury.

24. The court has no general power to extend a limitation period in relation to a cause of action to which section 16B applies: s 36(5)(a).

25. However, section 30 of the Limitation Act provides for the suspension of the limitation period in some circumstances. Relevantly, the section provides:

30 Disability

(1) Subject to subsections (2) and (3) and subject to section 32, if –

(a) a person has a cause of action; and

(b) the limitation period fixed by this Act for the cause of action has begun to run; and

(c) the person is under a disability;

then –

(d) the running of the limitation period is suspended for the duration of the disability; and

(e) [not relevant]

26. Dr Brooder conducted a physical examination and took a history from the plaintiff. He had access to reports of x-rays and the CT scan. He noted that an MRI scan of the cervical spine had been undertaken on 8 June 2008 but was unavailable. It was said in the hospital records to have demonstrated an acute disc prolapse at C5-6 pressing on the exiting nerve root. Dr Brooder expressed the opinion that the plaintiff had suffered an injury to the cervical spine in the motor accident on 30 November 2005. He could not be definite about the exact nature of the injury, in the absence of any radiological material over a period of more than two and a half years after the accident. Accepting the plaintiff’s complaints of persistent cervical pain on the left extending to the shoulder girdle, it would seem that he sustained a cervical intervertebral disc injury. His prognosis was guarded. His symptoms had not resolved but he had had no specific treatment. There was a reasonable prospect that an improvement in his symptoms would occur following appropriate treatment. He was nevertheless likely to have some degree of disability indefinitely. He was in Dr Brooder’s opinion unfit for employment, but this might change following treatment. There was a likelihood that he would develop premature arthritic and degenerative changes in the cervical spine in the future. There was no indication for surgery, although this might be required at some indeterminate time in the future.

27. Dr Brooder said nothing in his report which might assist on whether the plaintiff had at any time been under a disability for the purposes of the Limitation Act.

28. Dr Mellick could see no justification for surgical intervention. He accepted that the plaintiff had suffered a minor muscle-strain injury in the motor accident causing neck pain. He noted that the plaintiff had regarded the incident as a minor one at the time and had been able to continue his normal work. He accepted that the plaintiff had been given inappropriate advice about surgery by a neurosurgeon at Canberra Hospital, and said that this appeared to have caused a psychiatric disorder in the form of depression. Any bruising and psychological disturbance which might have occurred in close proximity to the accident in November 2005 had long since fully and entirely resolved. The plaintiff, by the time Dr Mellick saw him, had a chronic pain syndrome secondary to a psychologically based disturbance, accompanied by depression of mood arising from a high degree of apprehension provoked by the neurosurgical opinion he had been given. He said that the radiological features referred to in the CT report represented mild degeneration, unconnected to the motor accident and part of the normal process of degeneration beginning at the age of twenty-one.

29. Dr Roldan provided a lengthy report (fourteen pages). He took a very detailed history. He was provided with a copy of Dr Knox’s report. He conducted a clinical psychological assessment. The history was that for some two and a half years after the accident the plaintiff experienced a degree of discomfort, not severe enough to interfere with his work. On occasions he took non-prescription anti-inflammatory medication. In about June 2008 he suffered the onset of more severe constant and allegedly disabling pain which took him to hospital. According to the plaintiff, he was informed by a neurosurgeon that he had an abnormality in the cervical spine that required surgery. He became incapacitated for work because of his physical symptoms. His increased pain, accompanied by the psychological impact of the recommendation for surgery, caused him anxiety and depression leading to maladaptive behaviours such as self-medication with illicit drugs and aggressive behaviour. Dr Roldan diagnosed the condition caused by the events of June 2008 as an adjustment disorder with depressed and anxious mood. He found it difficult to disentangle any accident-related psychological issues from pre-existing problems and vulnerabilities. It was not within his specialty to express an opinion about any causative connection between the motor accident and the onset of allegedly severe symptoms in June 2008. This would be a matter for appropriate medical specialist opinion.

30. Dr Roldan did not accept Dr Knox’s opinion that the plaintiff suffered from a psychiatric condition affecting his capacity to commence legal proceedings. Dr Roldan attributed this to the plaintiff’s lack of awareness of significant accident-related physical or psychological problems prior to June 2008. Assuming that he then suffered disabling physical symptoms, these, combined with possible uncertainty as to his rights and diminished drive associated with depression might have caused some delay in the plaintiff seeking legal advice.

31. Dr Knox was provided with an opportunity to comment on Dr Roldan’s report. He said that the plaintiff throughout his adult life had had poor capacity to manage his life due to strong and disruptive emotions, probably related to major impairment of attachment in his childhood, exacerbated by attention deficit disorder. Dr Knox said that people tend to put out of their minds matters they cannot deal with. In the circumstances, Dr Knox thought that the plaintiff would have been highly unlikely to acknowledge injury requiring a visit to a doctor at any time. He remained of the view that the depressive disorder suffered by the plaintiff in 2008 would have had an effect on his capacity to take legal or any other action requiring more capable decision-making (high-level planning and initiative).

32. The word “disability” is used elsewhere in the Limitation Act and is not separately defined. Clearly the word in section 30(1)(d), referring to the duration of the disability, has the same meaning as in the defined expression “under a disability”. The same observation must apply to section 31(1)(a), referring to a person who has a cause of action in relation to which he or she is under a disability other than a disability arising from his or her minority.

33. The word “disability” probably has a different meaning in section 36(3)(d), which requires a court determining an application for an extension of a limitation period to have regard, inter alia, to the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action.

34. It is apparent that, at least in section 36, the word is not used synonymously with legal disability. For proceedings in this court, the Court Procedures Rules defines “person with a legal disability” to mean a child or a person with a mental disability, the latter expression being further defined as a person who is not legally competent to be a party to the proceeding. Rule 275 provides that a person with a legal disability may only conduct litigation in the court by a litigation guardian. Rule 282 requires court approval of the settlement or compromise of a proceeding commenced by a person with a legal disability. It is apparent that the word “disability” is not used in the Limitation Act in so narrow a sense.

35. The word “disability” is commonly used within the legal profession, in the context of actions for damages for personal injury, as a general word covering the consequences, whether temporary or permanent, of particular injuries. The word is used informally by the courts in that way from time to time in reasons for judgment.

36. The New South Wales Court of Appeal had occasion to consider a provision in almost identical terms to section 30 of the Limitation Act in State of New South Wales v Harlum [2007] NSWCA 120. The provision in question was section 52 of the Limitation Act 1969 (NSW). Section 11(3) contains an identical definition of a person under a disability to the ACT definition.

37. The leading judgment was delivered by Beazley JA, with whom Tobias JA concurred (Basten JA dissented). Beazley JA identified the court’s task as the determination of whether the person claiming to be under the relevant disability was able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action. It was a fundamental aspect of bringing a claim that it required the exercise of willpower to initiate the claim and continue with it. The trial judge had accepted psychiatric evidence that the ordeal the plaintiff had been through constituting his cause of action, had caused a severe adjustment disorder with depression and chronic post-traumatic stress disorder. The trial judge accepted that the plaintiff was disabled as defined by the legislation, that the impairment arose from his mental condition, and that it substantially impeded him in the management of his affairs in relation to his cause of action. He accepted as a matter of probability that the plaintiff was unable, during the period in question, to make a rational judgment or exercise the will to seek advice to address the wrong that had been done to him. The trial judge accordingly declared that the plaintiff had been disabled for the purposes of the legislation and that the proceedings he had instituted some nine years after the event had been brought within time. Beazley JA found no error in the approach of the trial judge. A disability for the purposes of the section could arise during the course of the limitation period and did not need to exist at its commencement. It was not necessary that the applicant be under a disability for the whole of the limitation period.

38. Whilst the psychiatric condition suffered by the plaintiff in Harlum had been caused by the events giving rise to his cause of action, there is plainly no necessity that such a causal connection be established. A person can be “under a disability” for reasons quite separate from the injuries which are the subject of the cause of action.

39. It is also apparent, if authority were needed for the proposition, that the “disability” relevant to suspension of a limitation period is not limited to a legal disability such as would require the appointment of a litigation guardian.

40. Miles CJ had held in Goodwin v Smith (unreported, 10 December 1990), that duration of the disability in section 36 meant legal disability and not physical disability, in the context of an application for extension of a limitation period. His Honour expressed the same view in Arnold v Commonwealth & Anor (unreported, 30 November 1995). However, his Honour took a different view in A v D (1995) 127FLR 372 where it is apparent that his Honour took “disability” in section 36 to mean a physical, psychological or emotional disability rather than a legal disability. The approach in A v D has been followed by other judges of this court in decisions listed by Refshauge J in Doyle v Gillespie [2010] ACTSC 21 at [83]. As Refshauge J says at [84], in none of the cases was there any discussion of the possible ambiguity in section 36 or the reason for the views taken. Refshauge J inclined to the original view of Miles CJ that disability in section 36 meant legal disability (at [90]) but added that he had not heard full argument and could not come to a definitive finding. Doyle v Gillespie was a decision to extend a limitation period and raised no issue of suspension of a limitation period under section 30.

41. I regard myself as bound to follow the decision of the NSW Court of Appeal in Harlum, and to hold that the word “disability” in section 30 is not restricted to legal disability. This requires me to determine on the facts whether the present plaintiff was, for twenty-eight days or longer, incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action because of mental illness or disorder. The balance of the definition of “under a disability” is not relevant to the facts of this application.

42. The cause of action arose on 30 November 2005. The plaintiff was then an adult and there is no suggestion that that he was incapable of managing his affairs. The limitation period expired on 1 December 2008. The plaintiff submits that on the evidence, the running of time should be suspended from 6 June 2008 until 20 May 2009. It was on 5 June 2008 that the plaintiff first consulted a doctor about his neck pain and on 7 June that he says he was told by a neurosurgeon, Dr Khurani, that he would need an operation to his cervical spine. There is no evidence about the precise words used by Dr Khurani, and I have considerable doubt about whether the doctor intended to convey to the plaintiff that he needed surgery. But I am satisfied that the plaintiff placed that interpretation on what Dr Khurani told him, and that, with his personal history of the loss of his mother during or following an operation, he reacted in the rather unusual way he has given evidence about. I accept the opinion of Dr Knox that since mid-2008, as a result of the onset of more severe pain, the loss of his job and the recommendation of surgery, the plaintiff developed a moderately severe adjustment disorder with depressed mood, and that for some months in the latter part of 2008 he probably suffered a major depressive disorder.

43. Dr Knox is a practicing psychiatrist with many years of experience, and on this issue I prefer his opinion, where there is any disagreement between them, to that of Dr Roldan, a clinical psychologist.

44. Proceedings were instituted six months and eight days after the limitation period expired. For the suspension of the limitation period under section 30 to avail the plaintiff, he must have been “under a disability” for at least that period, though not necessarily for the whole of the period from 6 June 2008 until he consulted his present solicitors on 21 May 2009, a period of more than eleven months.

45. As Beazley JA pointed out in Harlum, it is not generally possible to fix with precision the starting date and finishing date of a period of disability arising from a mental disorder. For the purpose of the present application I am satisfied that the plaintiff did suffer from a mental disorder, and that he did so for a period of at least seven months commencing in mid-2008. I am satisfied that for that period he was substantially impeded in the management of his affairs in relation to his cause of action. I am satisfied that he lacked the capacity and the willpower to make rational decisions about seeing a solicitor and starting proceedings. He was during that period unable to reason normally about the matters relevant to his potential cause of action, to understand and consider advice, and to give instructions about such action. I am accordingly satisfied that the running of the limitation period was suspended for at least a period commencing on 8 June 2008 and ending on 9 January 2009. It follows that the action was commenced with time. A declaration will be made to that effect.

46. Additionally, the plaintiff concedes that he failed to comply with the notice provisions of the Civil Law (Wrongs) Act. The defendant does not point to any actual prejudice resulting from this. The defendant’s insurer has long known about the collision, having settled the driver’s claim against the present defendant. The police report into the collision, which the insurer would have obtained in dealing with the claim by the driver, names the present plaintiff as a passenger. All of the medical records about the plaintiff’s treatment seem to be available. It is common ground that he did not seek any medical treatment for his injuries until June 2008. A further factor in favour of granting an indulgence to the plaintiff about compliance with the Civil Law (Wrongs) Act arises from the mental disorder from which I accept he suffered during the second half of 2008, and into 2009.

47. The considerations to be considered on an application for an order authorising a claimant to proceed further despite failure to give a complying notice of claim were set out in McGregor v Franklin (2006) 201FLR 303 and Al-Rawahi v Niazi (2006) 203FLR 94. I am persuaded that the plaintiff should not be deprived, because of his non-compliance, with the opportunity to take his action to trial. I order that the plaintiff be authorised to proceed further with the claim despite the non-compliance.

48. As to the suspension of the limitation period, the plaintiff does not really come to the court seeking an indulgence. The declaration he has successfully sought in that regard does not involve the exercise of a discretion. It follows from findings of fact based on the evidence. It was necessary for the plaintiff to make the application, and I see nothing in the conduct of the defendant in opposing the application which would warrant my penalising the defendant in costs. The appropriate order is that the costs of the application for the declaration as to suspension of the limitation period be costs in the cause.

49. As to non-compliance with the Civil Law (Wrongs) Act, the plaintiff must be seen as having sought an indulgence from the court, notwithstanding his explanation. In those circumstances the plaintiff should pay the defendant’s costs of the application. Having regard to his position as a impecunious individual, and that of the defendant as an insured under a policy of insurance, those costs should not be recoverable until final orders are made in the action.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 31 January 2011

Counsel for the plaintiff: Mr J R Sainty

Solicitors for the plaintiff: Blumers

Counsel for the defendant: Mr G A Stretton SC

Solicitors for the defendant: Sparke Helmore

Date of hearing: 26 November 2010

Date of judgment: 31 January 2011