Caroline Greenway v Kim Hin Teoh

• Jurisdiction: Australian Capital Territory
• Judge: Mossop M
• Judgment Date: 04 September 2014
• Court: Supreme Court of ACT
• Docket Number: File Number(s): SC 483 of 2013
• Date: 04 September 2014

[2014] ACTSC 224

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Mossop M

File Number(s): SC 483 of 2013

Caroline Greenway

(Plaintiff)

and

Kim Hin Teoh

(Defendant)

Representation:

Counsel:

A R Muller (Plaintiff)

R L Crowe SC (Defendant)

Cases Cited:

Askiak v Australian Secured and Managed Mortgages (2008) 66 ACSR 298

Casey v Alcock (2009) 3 ACTLR 1

( Duncan v Mendes unreported, NSW Court of Appeal, 29 May 1998)

Galafassi v Kelly[2014] NSWCA 190

Glass v Demarco [1999] FCA 482

Hoefler v Tomlinson & Ors (1995) 60 FCR 452

Lubovsky v Snelling[1944] KB 44

Liu v Fairfax Media Publications Pty Ltd (2012) 84 NSWLR 547

Marks v Roads and Traffic Authority of New South Wales (2004) Aust Torts Reports 81–732

Pihiga Pty Ltd v Roche (2011) 278 ALR 209

Ryder v Frolich[2006] NSWSC 1324

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1147

Evidence Act 2011 (ACT) s 131

Limitation Act 1967 (NSW) s 54

Limitation Act 1985 (ACT) s 16B

Texts Cited:

Attorney-General's Department, Proposals for the Reform and Modernization of the Law of Limitation in the Australian Capital Territory (Working Paper, Canberra, 1984)

Australian Law Reform Commission, Evidence, ALRC 26 (1984)

Explanatory Statement, Limitation Ordinance 1985 (ACT)

Cross on Evidence (Australian Edition) (Looseleaf Service, LexisNexis)

Parliament of New South Wales, First Report on Limitation of Actions (LRC 3) (October 1967)

RJ Desiatnik, Without Prejudice Privilege in Australia (LexisNexis Butterworths, 2010)

LIMITATION OF ACTIONS — personal injury — motor vehicle accident — whether paragraphs of an affidavit containing references to settlement offers should be admitted into evidence — scope of s 131(2)(i) Evidence Act 2011 (ACT)

Introduction

1 The plaintiff, Caroline Greenway, commenced proceedings on 11 December 2013 seeking damages arising out of a motor vehicle accident that occurred on 18 February 2008. The defendant to the claim is Kim Hin Teoh, the driver of the motor vehicle. Liability was admitted on 18 December 2008. The defence that was filed asserted that the proceedings were statute barred by s 16B of the Limitation Act 1985 (ACT) (ACT Limitation Act). The defence accepted that NRMA Insurance had, on behalf of the defendant, made a number of payments to or on behalf of the plaintiff in relation to out-of-pocket expenses that she incurred as a result of her alleged injuries and disabilities and that those payments may constitute confirmation of the plaintiff's cause of action under s 32 of the ACT Limitation Act. However, the defence also asserted that the most recent payment made by NRMA Insurance was to the Canberra Physiotherapy Centre on 15 June 2010.

2 Section 16B of the ACT Limitation Act provides, in effect, that personal injury claims must be commenced within three years from the date of the injury or three years from the date when the person injured first knows that he or she has suffered an injury that includes a disease or disorder and that injury is related to somebody else's act or omission. Therefore, for the purposes of the defence, the three year period would have expired at the end of 15 June 2013 – three years after the date of the last payment made by NRMA Insurance and almost six months prior to the commencement of these proceedings.

3 The reference to confirmation of a cause of action in the defence picks up the operation of s 32 of the ACT Limitation Act, which currently provides:

32 Confirmation

(1) If, after a limitation period fixed by or under this Act for a cause of action begins to run but before the end of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation.

(2) For this section —

(a) a person confirms a cause of action if, but only if, he or she —

• (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made; or

• (ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in relation to the right or title of the person to whom the payment is made; and

• …

(4) An acknowledgment for this section shall be in writing and signed by the maker.

…

4 The defendant has sought summary judgment in its favour pursuant to r 1147 of the Court Procedures Rules 2006 (ACT).

The determinative issue

5 In answer to the defendant's application, the plaintiff sought to read parts of an affidavit affirmed by her solicitor which contained references to settlement offers made by the defendant on 23 February 2009, 12 February 2010, 28 June 2011 and offers made by the plaintiff on 25 May 2011 and 12 June 2012. Those portions of the affidavit were objected to on the ground that the communications were subject to privilege under s 131 of the Evidence Act 2011 (ACT) (Evidence Act). However, senior counsel for the defendant said that if the paragraphs were admitted then he accepted that the making of the offer would amount to a confirmation of the cause of action with the consequence that the proceedings were not out of time. That must have been on the basis that the email of 28 June 2011 amounted to a confirmation of the cause of action because even if the earlier offers amounted to a confirmation they were more than three years prior to the commencement of the proceedings and hence would not assist the plaintiff.

6 Assuming the defendant's concession to be correct, the determinative issue for the purposes of this application is whether or not the evidence of the defendant's settlement offers is admissible. If the evidence is admissible then the limitation period has not expired. If the evidence is not admissible then there is no evidence of a confirmation of the cause of action after the last payment on 15 June 2010 and the limitation period expired on 15 June 2013, approximately six months prior to the commencement of these proceedings. It would therefore be appropriate to grant summary judgment to the defendant.

Is the defendant's concession correct?

7 As it is significant to the outcome of this case I will consider whether the concession made by senior counsel for the defendant, that the evidence, if admitted, would amount to a confirmation for the purposes of s 32 of the ACT Limitation Act, is correct.

8 In order to assess this concession it is necessary to have regard to the history and purpose of s 32. The section is in similar terms to s 54 of the Limitation Act 1967 (NSW) (NSW Limitation Act). Section 54 was introduced as a result of a New South Wales Law Reform Commission report on limitation of actions. In its First Report on Limitation of Actions (LRC 3) (October 1967), the Commission said:

249. A large part of the law relating to acknowledgments and part payments is concerned with actions for liquidated sums for which the Imperial Limitation Act, 1623, provides a limitation period of six years. Apart from the Imperial Statute of Frauds Amendment Act, 1828, the law on this subject is judge-made. The only kind of cause of action to which the Act of 1623 applies and upon which acknowledgment or part payment has any effect is a cause of action in contract for debt or other liquidated sum. Causes of action for damages for breach of contract and causes of actions for damages for tort stand outside the rules about acknowledgment and part payment. The development of the law is considered in ( Spencer v. Hemmerde[1922] 2 A.C. 507). The position is still the same under section 23 of the Imperial Act of 1939.

250. We think that every limitation period which the Bill would fix ought to be susceptible of enlargement by acknowledgment or part payment. Many odd contrasts can be imagined under the law as it stands. If a man steals a motor car he may be candid in making written acknowledgments of his liability to the owner without risk that the statute of limitations will stop running in his favour. There may indeed by an exception in favour of the owner if the thief sells the car, for then the owner may sue to recover the proceeds of sale in an action of assumpsit, in which a promise to pay over the proceeds of sale would be imputed to the thief and such a promise would presumably be within the rules about acknowledgment and part payment. Compare the text to the footnote (g) on page 221 of Halsbury's Laws of England, 3rd Edition, Volume 24 (1958), but the authorities cited do not support the text. If, however, the car is sold by the owner and the price is not paid, there is from the outset a debt within the rules about acknowledgment and part payment. If, to put a further case, a man has an insurance policy covering him against liability for personal injury to third parties and a third party is injured so as to give the insured a claim under the policy, the insurance company may admit liability both to its own insured and, as agent of the insured, to the injured third party: the admission, if in writing, will enlarge the limitation period as between the insurance company and the insured but will have no effect as against the insured in favour of the injured third party ( The Sauria [1957] 1 Ll. Rep. 396) unless indeed the evidence shows a contract not to plead the statute: ( Lubovsky v. Snelling[1944] K.B. 44).

251.Lubovsky v. Snelling (above) is a case of some interest. There, an insurer dealing with a claim under the Imperial Fatal Accidents Acts admitted liability to the plaintiff and negotiated on the measure of damages. While the negotiations were going on the limitation period ran out...