Norris, Robert James v Mcgeachy, Sarah Margaret

• Court: Full Supreme Court
• Docket Number: FCA 1081/2009
• Judge: Evans J, Blow J, Tennent J
• Judgment Date: 18 Jun 2010
• Jurisdiction: Tasmania

[2010] TASFC 4

[2009] TASSC 110

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Tennent JJ

FCA 1081/2009

Norris, Robert James

and

Mcgeachy, Sarah Margaret

Norris

and

McGeachy

Marr v Green (1993) 14 Tas R 317 ; Hill v Iluka Corporation Ltd [2002] TASSC 113, distinguished.

Aust Dig Appeal and New Trial [33]

Aust Dig Limitation of Actions [1085]

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Limitation Act 1974 (Tas), s5(3).

Appeal and New Trial — Appeal — General principles — Interference with discretion of court below — In general — General principles — Functions of appellate court — Generally — Exercise of broad judicial discretion — Where no error of principle — Refusal of application to extend time.

Limitation of Actions — Extension or postponement of limitation periods — Extension of time in personal injuries matters — Principles upon which discretion exercised — Writ filed out of time — Delay in applying for extension of time — Whether relevant.

REASONS FOR JUDGMENT

FULL COURT

Evans J

1 I agree with the reasons for judgment prepared by Blow J and would also dismiss the appeal.

Blow J

2 This is an appeal from an order refusing an extension of time for the bringing of an action for damages for personal injuries. The appellant, Mr Norris, went drinking in Launceston on the night of Wednesday 3 November 2004. The night did not go well for him. He had an argument with his partner. In the early hours of Thursday 4 November he decided to walk back alone to her home in Trevallyn. He was walking on the roadway of the West Tamar Highway at about 3.30am when he was hit by a car driven by the respondent. He suffered serious injuries. The limitation period for the bringing of an action against the respondent for damages for those injuries was three years:Limitation Act 1974, s5(1). That limitation period expired in November 2007. The appellant sued for such damages by a writ that was filed on 2 October 2008. He subsequently applied under the Limitation Act, s5(3), for an order extending the time for the bringing of his action to the date of the filing of the writ. Crawford CJ heard that application and dismissed it: Norris v McGeachy [2009] TASSC 110. This is an appeal from that decision.

3 There are six grounds of appeal. Ground 2 involves a contention to the effect that the learned Chief Justice took into account an irrelevant consideration. The other grounds all involve contentions that his Honour attached too much or too little weight to various relevant matters. As is usual in such cases, his Honour considered the evidence before him as to the strength of the applicant's case, the reasons for his delay, and possible prejudice to the respondent. Before I address the grounds of appeal, it is appropriate to say a little about those matters.

An arguable case

4 The appellant suffered head injuries as a result of the collision. According to the evidence, he has no memory of it. The evidence as to what happened was contained in witness statements obtained by police officers. The learned Chief Justice concluded, on the basis of those statements, that the appellant had aprima facie case for damages based on negligent driving, but that contributory negligence was likely to be attributed to him. Those conclusions are not challenged in this appeal. I therefore need not say much about the circumstances of the collision. The respondent told the police that she was travelling in the left hand lane, in fifth gear, at about 60 – 65 kilometres per hour, with her lights on low beam, looking ahead, with a good view and a clear road, when something white hit the left side of her windscreen and she realised it was a pedestrian. The appellant said in an affidavit that he was tipsy. There is evidence that there was a footpath to his left side of the highway.

Delay

5 As I have said, the accident occurred on 4 November 2004. Some eight months later, on 21 July 2005, the appellant saw a legal practitioner, John Pedder, who was employed by a Launceston legal firm, Archer Bushby. He gave Mr Pedder instructions as to what he drank on the night in question, where he was going, his injuries, his surgical treatment, his employment before the accident, and the impact of his injuries. Over the next few months, Mr Pedder took a number of routine steps by way of investigating and preparing a claim for damages for personal injuries. These were catalogued by the learned Chief Justice in his reasons for judgment, and I see no need to descend into detail as to what was done. The Motor Accidents Insurance Board (‘the Board’) instructed the legal firm Dobson Mitchell & Allport to act for it in relation to the matter. There were discussions between the Board's solicitor and Mr Pedder. The Board's solicitor made a without prejudice offer to settle for$5,000. The acceptance of such an offer extinguishes any right to the payment of further scheduled benefits: Motor Accidents (Liabilities and Compensation) Act 1973, s27(3).

6 On 2 November 2005 Mr Pedder wrote to the appellant about his claim and the offer of settlement. He made some serious mistakes in the advice that he provided. It appears that the Board had paid a total of $156,142.51 by way of scheduled benefits at that point, comprising $150,650.81 for medical expenses and the like, and $5,501.70 as a disability allowance in consequence of the appellant's incapacity for work. As to the likely outcome of a damages claim, it was necessary to take into account the payments made by way of scheduled benefits and the likely impact of a finding of contributory negligence. When scheduled benefits have been paid, a finding of contributory negligence has been made, and damages are assessed, the judge must first assess damages as if all medical expenses and the like had been paid by the plaintiff, not the Board; then make a reduction to allow for contributory negligence; and then deduct the amount paid by the Board by way of scheduled benefits. If the balance after the reduction for contributory negligence is less than the amount paid by way of scheduled benefits, then the plaintiff will recover nothing, but will not have to pay any money to the Board by way of reimbursement. TheMotor Accidents (Liabilities and Compensation) Act, s27(1), provides only that the payment of a scheduled benefit is to be taken to be a payment in or towards the discharge of a liability for damages. However Mr Pedder suggested in his letter that the appellant could end up owing the Board $26,588 if there was a 40 per cent reduction for contributory negligence, or $4,994 if there was a 30 per cent reduction. He also neglected to add in the expenditure paid by the Board in the first stage of his calculations. In his letter, he canvassed the possibility of further investigating the impact of the appellant's injuries on his capacity to earn an income, and the likelihood of future medical treatment. He concluded by saying, ‘… we would appreciate your advice as to whether you wish to proceed with this matter and obtain further medical evidence or consider the Board's offer.’

7 On 4 November 2005 the appellant made two phone calls to a secretary in Mr Pedder's office. In the second of those calls he told her that he had decided to reject the offer of $5,000, not to issue proceedings, to have further medical assessments done, and to leave open the option of claiming further medical expenses by way of scheduled benefits. The learned Chief Justice made a finding that the appellant made a decision not to sue. That finding is not challenged in these proceedings.

8 The appellant was asked to confirm his instructions in writing, first by Mr Pedder's secretary in a phone call on 29 November 2005, and then by Mr Pedder in a letter of 2 December 2005. Mr Pedder wrote to the Board's solicitors on 27 January 2006 advising that the appellant did not wish to pursue a damages claim. The Board instructed its solicitors to close their file. They did that on 31 January 2006.

9 The appellant evidently did not ask Archer Bushby to do anything further for him. He did not pay their account. During 2007 they placed the account with a collection service, obtained a judgment, and commenced garnishee proceedings, but they recovered nothing.

10 The learned Chief Justice made a finding that Mr Pedder told the appellant during the attendance on 21 July 2005 that there was a basic three year limitation period, but commented that the appellant might have forgotten over the next two or three years that there was a primary limitation period of precisely three years.

11 The appellant first saw his present solicitor on 25 August 2008. There was no evidence explaining the delay between the decision not to commence proceedings in late 2005 and the date of that first consultation.

12 After the appellant saw his new solicitor on 25 August 2008, the following steps were taken:

• •Some five weeks later, on 2 October 2008, the writ was filed.

• •A statement of claim was filed on 13 October 2008.

• •A defence was filed on 27 October 2008. Not surprisingly, a defence under theLimitation Act, s5(1), was pleaded.

• •Over four months later, on 5 March 2009, the appellant's solicitors filed an application for an order extending time to the date of the filing of the writ. It was defective, in that it sought only an extension of time to serve the writ, not an extension of time for the filing of the writ.

• •On 4 May 2009 an amended interlocutory application was filed, seeking an extension of time for the filing of the writ.

Prejudice

13 On the morning of the accident, a police officer took a written statement from a motorist named Jesse Kim Harvie, who had been driving immediately behind the respondent. In March 2009 the Board's solicitors engaged a firm of enquiry agents to locate and speak to the witnesses. There was evidence that they tried to find Mr Harvie, and were unsuccessful. The...