HRNG ADELAIDE, 12 September 1995 #DATE 20:10:1995 #ADD 27:11:1995

JUDGE1 COX J I would allow this appeal. I agree with the reasons of Lander J. I add some remarks of my own on one aspect of the appeal that has caused some difficulty.

In Sola Optical (Australia) Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 the High Court compared the terms of s48(3)(b)(i) of the Limitation of Actions Act 1936 ("facts material to the plaintiff's case") with the more complex and stringent provisions of sections 1 and 7 of the Limitation Act 1963 (UK) and adopted the words of Bray CJ in Napolitano v Coyle (1977) 15 SASR 559. In that case the learned Chief Justice gave the notion of material facts a literal, unvarnished meaning that, inter alia, did not require that the ascertainment of those facts by the plaintiff were "even such as to have in his mind weighed down the balance in favour of litigation" (15 SASR at 569). The judgement of the High Court continued - "...There is no warrant for writing into the Act a further qualification that, to attract the operation of s.48(3)(b)(i), there must be some interaction between the material fact and the plaintiff's decision to sue. It is materiality to the plaintiff's case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff's mind would complicate the court's task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff's case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word "material", inter alia, to mean "Of such significance as to be likely to influence the determination of a cause". Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to "facts material to the plaintiff's case"." (163 CLR at 636-7)

In Gehan v South Australian Meat Corporation (Full Court, 5 March 1992, unreported), Bollen J (with whose reasons King CJ and Prior J agreed) interpreted this passage in Sola Optical as requiring that the material fact or facts should have a bearing upon the plaintiff's decision to sue - "The idea is that there should be a discovery of something which affects the decision to proceed with action or not ..."

His Honour then examined the evidence that was relied upon by Mr Gehan and found it wanting - "But when we ask what new thing sufficient to justify bringing the action (Sola Optical v Mills (supra at p.366)) emerged in the 'ascertaining period' we are hard put to see one..." (The reference to p366 should be, I think, to p636.)

And later - "The appellant knew facts about his condition which would justify taking action. He well knew them long before 14th April 1989 .."

His Honour then considered the knowledge of the plaintiff's disability that was possessed by the plaintiff and his solicitor at the relevant time and continued - "...In other words they knew that disability justified the risk of litigation. In Sola Optical v Mills (supra at 636) the majority said:- "A fact as material to the plaintiff's case is that is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify the bringing of action and is of sufficient importance to be likely to have a bearing on the case."

The appellant knew the facts before the beginning of the "ascertaining period". The learned trial Judge was correct

in saying of the reports relied on that "they showed little new". I think that in fact they showed nothing new. There

was no ascertainment of material fact or facts within s.48 of the Limitation of Actions Act."

It seems to me, with great respect, that his Honour has misunderstood the sentence that he quotes in this passage from Sola Optical. The High Court cannot have intended that the words "sufficient to justify the bringing of action" should prescribe a condition of the materiality of an ascertained fact, for that would be to reinstate the error in the earlier South Australian cases of Cakebread v Henriks (1986) 128 LSJS 139 and Raison v Alexoudis (1986) 130 LSJS 174 that the High Court judgement had just expressly exposed. No interaction between the postulated material fact and the plaintiff's decision to sue need be shown. In my opinion, the words "sufficient to justify bringing the action" are simply a part of a longer description of the "issues to be proved" to which the fact in question must be relevant. It follows, in my view, that the Full Court was wrong in Gehan to require of the plaintiff in that case, if he was to succeed in his s48 application, the ascertainment of a fact "which affects the decision to proceed with action or not." That, on my reading of Sola Optical, is not what s48(3)(b)(i) requires.

Gehan is a recent decision of the Full Court of this State and there is no doubt that the Court's understanding and application of s48 were decisive of one of the two grounds on which the appeal in that case was dismissed. Generally speaking, the decision of any Full Court on a point of law is binding on its successors. There are established tests or procedures designed to resolve conflicts of this sort - one of them was adopted in Sola Optical itself - but I do not think that it is necessary to have recourse to them in this instance. The law to be applied on this appeal is s48 of the Limitation of Actions Act as interpreted by the High Court in Sola Optical. The Full Court in Gehan was not setting out to add to or modify the test laid down by the High Court but simply to apply that test to the circumstances of the case before it - which is all, indeed, that the present Full Court is attempting to do. On that view of the matter it is open to us to regard Gehan as simply a decision on its own facts, so that its paraphrase and application of the High Court's judgement will, of course, be accorded the greatest respect but will not constitute a precedent that we should feel obliged to follow.

Perhaps one might be permitted a general observation about these s48 applications. Everyone now understands that the test for an ascertained material fact under s48 is extremely modest, even some would say to the point of absurdity. The solicitor must be bereft of all ingenuity and imagination who cannot in practically every case discover, or even create, some material fact that his out-of-time client can then ascertain within the limitation period in order to meet the first requirement of the statutory provision. Faced with such a discouraging prospect of success on this point insurance companies, except in quite exceptional cases, would be best advised to expend their forensic energies in more rewarding ways.

JUDGE2 PERRY J I agree with the reasons given by Lander J.

3. The decision of the High Court in Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 is clear authority for the proposition that a fact may be "material" for the purposes of s48 of the Limitation of Actions Act 1936, even although it is a fact the ascertainment of which has nothing whatever to do with the decision to sue or maintain proceedings. To the extent that the decision of this Court in Gehan v South Australian Meat Corporation (unreported Full Court Judgment 3294, 5 March 1992) might be thought to be authority to the contrary, it should not be followed.

4. There are many cases such as this case where the plaintiff has made a decision to sue within the limitation period and has never departed from that decision. Commonly in such a case the need to seek an extension will arise because of a default on the part of the plaintiff's solicitor. That situation is apt to give rise to a tendency to contrivance.

5. This was recognised by the High Court in Sola Optical Australia Pty Ltd v Mills (supra) when the Court observed (Wilson, Deane, Dawson, Toohey and Gaudron JJ, 163 CLR at 637): "It was argued for the appellant that this construction of the section opens it up to contrivance and absurdity. On the other hand, to introduce, by a process of construction, controlling criteria to limit its abuse is to compound rather than to alleviate any difficulty. The breadth of the residual discretion vested in the court provides an ample safeguard against abuse and provides that flexibility which will facilitate the achievement of the legislative purpose, namely, a just result in a wide range of circumstances."

6. In this case, it seems to me that given the plaintiff's decision to sue, made soon after the accident in question, a decision from which he never resiled, and given the relative insignificance of what he was later to learn from the report furnished by Mr Cohen, having regard to what he already knew, there was a strong case against the exercise of the discretion in the plaintiff's favour.

7. It is, however, not open to this Court to review the intimation by the learned Magistrate that had he been satisfied that the plaintiff had ascertained "material facts" he would have found that there were grounds upon which an order should be made granting the necessary extension. This is so, because the respondent did not file a notice indicating an intention to contend that the decision appealed should be affirmed on other grounds (SCR R 95.05). In those circumstances, it is not open to this Court to address the question whether or not, given that this Court differs from the view reached by the learned Special Magistrate as to materiality, the discretion should nonetheless be exercised against the plaintiff.

8. I would allow the appeal, and make an order in the terms suggested by Lander J.

JUDGE3 LANDER J This is an appeal, pursuant to leave to appeal granted from an interlocutory order of Mr K.A. Millard, SM, made on 17 February 1995, whereby the appellant was refused an extension of time, pursuant to s48(3) of the Limitation of Actions Act 1936 (the Act), within which to institute proceedings and as a consequence of that refusal the appellant's claim was dismissed and judgment entered for the respondent, together with the respondent's costs.

On 3 March 1994 the appellant issued proceedings, claiming the sum of $60,000 for personal injury, loss and damage alleged to have been suffered by reason of the negligence of the respondent in a motor vehicle accident which occurred on 13 October 1990.

Section 36 of the Act provides that an action for damages for personal injuries shall be commenced within three years after the cause of action accrued, and as a result, the plaintiff's claim was statute barred. The appellant, therefore, in his proceedings, sought an extension of time to institute the action pursuant to s48 of the Act. The appellant included in the statement of claim annexed to the summons an endorsement, with a statement to the effect that the appellant sought an extension of time pursuant to that section.

The plaintiff's pleading provided: "9. The plaintiff seeks an extension of time in which to institute the action herein pursuant to the provisions of Section 48 of the Limitation of Actions Act 1936 as amended.

The action herein was instituted within 12 months after facts material to the plaintiff's case were ascertained by him.

PARTICULARS (a) In the course of the last 12 months during which time the plaintiff has purported to work full-time as a subcontract plasterer (his pre-accident occupation) he has found that: (i) after 2 hours of working on walls and ceilings his arms start to ache and the rate of work slows; (ii) after 4 hours of such work the plaintiff requires a rest and for the balance of the work day his rate of work slows; (iii) whereas prior to the accident the plaintiff was able to plaster up to 200 square metres)(sic), now he is able to complete up to 150 square metres; and (iv) there has been a feeling of weakness in the arms which has persisted during the last 12 months. (b) The plaintiff, in the course of the last 12 months, suffered with a tenderness at a spot in the chest (identified as the xiphoid process). (c) The plaintiff has experienced and continues to experience a feeling of having a 'tightness' in his chest and a soreness in the tender spot on his chest, particularly when wearing a seatbelt. (d) The plaintiff was examined by Mr Brian Cohen on 19 July 1994 and in relation to the sore spot on his chest, the plaintiff learned from Mr Cohen that it was Mr Cohen's view that the tender spot was called 'the xiphoid process' and that the tenderness was caused by the seatbelt and that it was a permanent problem. (e) The plaintiff saw the report of Mr Brian Cohen dated 19 July 1993 on 12 January 1994 for the first time and learned from reading the report that it was Mr Cohen's view that: (i) there was a tenderness and prominence over the xiphoid process; (ii) the examination by Mr Cohen confirmed continuing

symptoms in the upper arms when the upper arm (sic) were elevated for any length of time; (iii) that there is an overall disability albeit a 'small one'; and (iv) that the increased incidence of headache is related to the plaintiff's return to work as a plasterer.

10. The plaintiff says that it is just in all the circumstances of the case for the extension of time to be granted

AND the plaintiff claims an extension of time in which to institute the action herein and the plaintiff claims damages."

In response to that application for an extension of time, the defendant pleaded in paragraph 8 of the defence: "The defendant denies that the plaintiff is able to seek an extension of time pursuant to the provisions of Section 48 of the Limitation of Actions Act as alleged in paragraphs 9 and 10 of the Statement of Claim or at all and in particular the defendant denies each and every of the allegations in paragraph 9 of the Statement of Claim under the heading 'Particulars' as if the same were specifically set out herein and traversed. In addition the defendant alleges the following:- (a) that the facts upon which the plaintiff relies as material facts were ascertained by him at some time prior to 12 months before the expiration of the period of limitation; (b) that if the plaintiff did ascertain the facts upon which he relies after the expiration of the limitations period and has brought an action within 12 months of ascertaining those facts, then those facts are not 'material', such that it would allow him to seek from the court an extension of time pursuant to Section 48 of the Limitation of Actions Act, 1936; (c) in the alternative the defendant denies that it would be just in the circumstances of the case for an extension of time to be granted."

The matter came before the learned Magistrate for determination of that preliminary point (s48(5)).

The appellant presented as part of his case his own affidavit, an affidavit of his solicitor and a medical report of Mr Cohen dated 19 July 1993. The appellant was called and identified his affidavit, and deposed to the fact that the report of Mr Cohen of 19 July 1993 was shown to him for the first time on 12 January 1994, and that it was on that occasion he learnt for the first time of the opinion contained in that report. He was then made available for cross-examination.

The appellant first consulted solicitors on 17 October 1990 when he retained Messrs Jervis Smith and Thomas to act on his behalf. On 29 November 1990 they gave notice of the appellant's claim to the defendant's insurer, SGIC, and then by letter dated 25 January 1991, gave notice of the claim to the respondent himself. On 8 July 1991, because of a conflict of interest, Messrs Jervis Smith and Thomas transferred the conduct of the matter to Messrs Andersons Barker Gosling, and since that time Messrs Andersons Barker Gosling, have acted for the appellant.

Correspondence exhibited to the affidavit of Mr Anderson, the solicitor for the plaintiff, shows that after his firm was instructed, and from time to time, the insurers were provided with medical reports and items of special damage. Correspondence was exchanged in relation to a police report and in September 1992 the respondent's insurers, by letter, offered to settle the question of liability on an apportionment 70/30 against the appellant. After receipt of that letter further medical reports were exchanged, and in particular, the report of Mr Cohen of 19 July 1993 was sent to the defendant's insurers on 8 September 1993.

In August 1992, Messrs Andersons Barker Gosling prepared a draft of the particulars of claim and submitted that draft to counsel for settling. The particulars of claim were settled within two weeks of being submitted to counsel and returned for issue, but inadvertently the particulars of claim were filed on the solicitor's file, and not re-engrossed, nor were the proceedings issued. The appellant was always co-operative and accessible to his solicitors and it was no fault of his that the proceedings were not issued in time. The proceedings were not issued simply by reason of oversight on the part of his solicitors. When that oversight was first noticed, the solicitors sought the advice of counsel. On 1 November 1993 Messrs Andersons Barker Gosling, wrote to counsel, Mr David Smith, in these terms:

"I refer to our telephone conversation on 29 October in relation to the above matter.

I now enclose the file and trust that you will be successful in finding a material fact to extend time in which to serve the summons."

On 12 January 1994 the report of Mr Cohen, incorrectly described in Mr Anderson's affidavit as Dr Kutlaca, dated 19 July 1993, was read over to the appellant. The appellant, as his evidence shows, was unaware of the contents of that report before that time.

The appellant deposed in paragraph 11 of his affidavit to the following: "In the course of the last twelve months up to the date of issue of the institution of the action herein, I discovered that:- (a) Whilst working full time as a subcontract plasterer, my pre accident occupation, that after two hours of working on walls and ceilings my arms started to ache and the rate of

work slowed, after four hours of such work, I required a rest and for the balance of the work day my rate of work slowed, whereas prior to the accident I was able to plaster up to 200 square metres per day. I am now only able to complete up to 150 square metres and I have had a feeling of weakness in my arms which has persisted during the last twelve months. (b) I have suffered a tenderness at a spot in the chest. (c) I have experienced and continued to experience a feeling of having a 'tightness' in my chest and a soreness in the tender spot on my chest particularly when wearing a seat belt. (d) On the 19th day of July 1993 ('hereinafter called the said report') I was medically examined by Mr Brian Cohen, a general surgeon, in relation to the sore spot on my chest at which time I learned from Mr Cohen that it was his view that the tender spot was called 'the ziphoid (sic) process' and that the tenderness was caused by the seatbelt and that it was a permanent problem. (e) On the 12th day of January 1994 I saw the said report for the first time and learned from reading the said report that it was Mr Cohen's view that:- (i) there was a tenderness and prominence over the ziphoid (sic) process; (ii) the examination by Mr Cohen confirmed continuing symptoms in my upper arms when my upper arms were elevated for any length of time; (iii) that there is an overall disability albeit 'a small one'; and (iv) that my increased incidents of headache is related to my return to work as a plasterer."

The learned Magistrate considered all of the evidence and then discussed the competing submissions made on behalf of the appellant and respondent. He was referred to Sola Optical Australia Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 by counsel for the appellant, and to Gehan v South Australian Meat Corporation (unreported Full Court of the Supreme court of South Australia, Judgment No. S3294, 5 March 1992) by counsel for the respondent. It was submitted by the respondent that none of the matters upon which the appellant relied could be classified as material facts within the meaning of s48 of the Act, and it was further submitted that for the reasons given by Bollen J in Gehan v South Australian Meat Corporation the application for an extension of time had to fail.

In respect of that the learned Magistrate said this: "In my view, however, for the reasons discussed by Mr Justice Bollen in Gehan's case, the fact that a medical opinion may have been obtained and first viewed by the

plaintiff within the ascertaining period does not, of itself, satisfy the criteria set out in s.48(3) of the Limitations Act. There must be some objective significance in the information that it is 'ascertained' (learnt for the first time). As Mr Newell commented it is an entirely different thing to learn that a medical practitioner has determined an 80% disability (as in Sola v Mills) than to learn that a medical practitioner has confirmed the plaintiff's own impression of an improvement in his condition, (particularly when it is borne in mind that to reach that conclusion, in the absence of any objective

findings to support a diagnosis, the medical practitioner has relied entirely upon the plaintiff's own history).

In my view, the matters the plaintiff seeks to rely upon in Mr Cohen's report are incapable of having the necessary materiality to the plaintiff's case to justify the conclusion that they are 'material facts' within the meaning of the Section. I would accordingly dismiss the proceedings on those grounds."

His Honour went on to consider whether, if the information that the appellant had become aware of amounted to a material fact, the justice of the case required an extension of time to commence proceedings and determined that it did.

The appellant contends in this Court that there were three facts, which were facts material and which the plaintiff ascertained in the relevant period. They were: 1. The fact of Mr Cohen's opinion, ascertained by the plaintiff on 12 January 1994, that the tenderness in the xiphoid process was caused by the seatbelt (in the accident) and that it was a permanent problem.

2. The fact of Mr Cohen's opinion that he had a permanent, albeit small, residual disability as a result of the accident.

The appellant had contended before the learned Magistrate that there were a number of other facts which were material and which were not ascertained within the twelve months before the issue of proceedings. The learned Magistrate found that a number of those facts had been ascertained at a time earlier than a date twelve months before the issue of proceedings, and therefore those facts could not be used to qualify the appellant for an extension of time. In particular, the learned Magistrate found that the matters in subparagraphs (a), (b) and (c) of paragraph 11 were not discovered or ascertained within twelve months of the institution of proceedings, but were matters well known to the appellant "well prior to the expiration of the limitation period". He also concluded that the respondent had established that the appellant had no real interest in the ascertainment that Mr Cohen referred to the 'tender spot' in his chest as the "xiphoid process". He also rejected the appellant's assertion that Mr Cohen advised the appellant that his headache was related to the return to work. Further, he found that Mr Cohen's findings of tenderness and prominence over the xiphoid process and of continuing symptoms in the upper arms were no more than a restatement of the appellant's complaints of his injuries to Mr Cohen. He concluded: "There is nothing in the subject report to suggest that on

examination Mr Cohen was able to find any disability other than tenderness over the distal tip of the xiphoid process."

Ultimately, Mr Cohen's conclusion is this: 'This gentleman has a minimum disability now. (The underlining and that which follows is mine.) There are however, some continuing symptoms in the upper limbs with his arms elevated for any length of time. His overall disability is now a small one.'

It is on the basis of that conclusion and the judgment of the High Court in Sola Optical Australia Pty Ltd v Mills confirming that the opinion of a medical specialist may amount to a material fact that the plaintiff essentially bases his application for an extension."

The appellant does not complain about these findings but now limits his argument to the three facts mentioned above.

Section 48 reads: "48. (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for - (a) instituting an action; or (b) doing any act, or taking any step in an action; or (c) doing any act or taking any step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of

(3) This section does not - (a) apply to criminal proceedings; or (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied - (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or (ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances, and that in all the circumstances of the case it is just to grant the extension of time."

The cause of action for damages for personal injuries is prescribed by the Act itself, and therefore s48(3) applies. To qualify for an extension of time under s48(3), the appellant must establish that facts material to his case were not ascertained by him until a point of time occurring within the twelve months before the issue of proceedings, on 3 March 1994, and further, the appellant must establish that in all the circumstances of the case it is just to grant the extension of time.

The appellant could not have become aware of the existence of Mr Cohen's report before 19 July 1993, so that if the report itself is a material fact, then it was ascertained within the twelve months preceding the issue of proceedings.

The respondent argued that this Court ought to infer that the appellant became aware of the first two matters mentioned above at a point of time prior to the twelve months before the issue of proceedings. Whilst it may have been that the appellant had an awareness of his own condition, there is no evidence that he knew of Mr Cohen's opinion as to the matters mentioned, and in the absence of cross-examination of the appellant on that matter it ought not to be inferred.

The first of the matters was said to have been learnt at the consultation of 19 July 1993. Mr Walsh argued that the appellant's evidence of what he was told could be no more than hearsay and could not be evidence of the truth of the opinion, nor the truth of the fact that the opinion was held. He argued that in the absence of Mr Cohen being called, the material fact which the appellant relied on had not been proved. "Evidence of a statement made to a witness by a person who

is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible where it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made." Subramaniam v Public Prosecutor [1956] UKPC 21; (1956) 1 WLR 965 at 970.

The evidence was not led to prove the truth of the opinion, but only to establish that the statement had been made. It is not the purpose of the inquiry on an application under s48(5) to test the accuracy of the opinion offered, or whether in due course the opinion of that doctor will be accepted. The inquiry is simply to determine whether facts material were ascertained. In that regard the evidence was led merely to establish that the communication was made in order that the appellant could establish the ascertainment of a material fact.

I believe that the appellant established that he became aware on 12 January 1994 of the second and third matters mentioned above which, of course, was within the twelve months prior to the issue of proceedings.

The learned Magistrate rejected the appellant's application, not because those facts were not ascertained within the period, but because they were not material facts.

It remains to be seen whether his Honour was right in that. Section 48 was first considered by this Court in Lovett v Le Gall (1975) 10 SASR 479. The section was in a different form to its present form, but not so as to render the reasons in that case inappropriate to a determination of the issues in this case.

Bray CJ said at page 481: "The learned Judge held that facts were material to the plaintiff's case within the meaning of the sub-section if they were relevant to that case in a not unimportant way. I am content to adopt this definition, though I have suggested an alternative form of words later on. The argument for the appellant was, as I have said, that to be material the facts in question must be necessary for the purpose of formulating the plaintiff's cause of action. But the statute refers to the plaintiff's case, not to his cause of action."

He went on to say at pages 483-484: "Accordingly I agree with his interpretation of the word 'material' set out above. Another way of putting it might be to say that a fact is material within the meaning of the sub-section if it is of such significance as to be able to

influence the determination of the case; cf. the dictionary definition of 'material' from the 3rd edition of the Shorter

Oxford Dictionary cited by the learned Judge. A similar definition of the word prefixed with the words 'chiefly Law' appears in the New English Dictionary."

See also Napolitano v Coyle (1977) 15 SASR 559 and Richardson v Ioannou (1986) 127 LSJS 1.

King CJ said in Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364 at page 367: "Lovett v Le Gall was tried in the Local Court of Adelaide by Judge J.M. White (as he then was), and his reasons for judgment appear at page 487 of the report. All three Judges on the Full Court adopted the reasons of the trial judge, two of them adding observations of their own. The Full Court, either in their own reasons or by adoption of the trial judge's reasons, decided certain points as to the 1972 provision which are of importance on this appeal.

1. The words 'not ascertained by him' refer to the plaintiff personally and not to his solicitors or agents.

2. The words 'material to the plaintiff's case' do not refer to facts material for the purpose of alleging a complete cause of action, but to facts material to be proved in order that the plaintiff should establish his case at trial.

3. The facts referred to are facts material to the plaintiff's case at trial not to his decision to sue.

4. The section does not require that ignorance of the

material fact later ascertained should have caused or contributed to the failure to sue in time or that the ascertainment of the fact should have caused or influenced the decision to sue."

That was the understanding, it seems to me, of the ratio of Lovett v Le Gall and the understanding of the true construction of s48.

The matter went to the High Court on each of those points: Sola Optical Pty Ltd v Mills (supra). In particular the High Court was called upon to decide the meaning of facts material.

The Court determined at page 363 that a fact is a fact material: "... if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word 'material' inter alia, to mean 'Of such significance as to be likely to influence the determination of a cause'. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to 'facts material to the plaintiff's case'."

Moreover, the Court determined that the ascertainment of the medical report itself was a material fact. The court said at page 638: "It was expressing a specialist medical opinion as to the effect of the disabilities upon the functional capacity of the respondent's arm. The respondent certainly had a knowledge of the physical disabilities that she suffered, but it was material to her case to learn that a medical assessment of the effect of those disabilities upon her capacity to function was expressed in terms of 80 per cent loss of function. Such a fact was material to the issue of damages."

Later, on the same page they said: "In any event, the fact of the existence and contents of Mr. Morgan's report was also capable of being material to the respondent's case in the sense that the report represented available evidence that could be called in support of her case."

All three matters upon which the appellant relies, would be consistent with the reasoning of the High court in Sola Optical v Mills, facts material to the appellant's case.

The High Court was also required to consider the third and fourth points to which King CJ referred in Sola Optical Australia Pty Ltd v Mills (supra) in the context of two other decisions of the Full Court of the Supreme Court.

In Cakebread v Henriks (1986) 128 LSJS 139 the Full Court determined that there must be some interaction between the ascertainment of the material fact and the decision to sue and in that case it was held that there was no evidence to support the proposition that the material fact "had any bearing on the institution of proceedings". That decision was followed by another decision of the Full Court in Raison v Alexoudis (1986) 130 LSJS 174. In that case the Full Court determined that there was again no interaction between the ascertainment of the fact and the institution of proceedings and that therefore the plaintiff did not qualify for an extension of time under s48(3) of the Act. In fact it was held in that case that the plaintiff had always intended to sue and so the ascertainment of the material fact had no bearing at all on the institution of proceedings in due course.

It was clear that those two decisions were in conflict with the decision in Lovett v Le Gall (supra). The conflict was submitted to a bench of five of the Full Court for resolution in Sola Optical Australia Pty Ltd v Mills (supra) and was resolved by that Full Court determining that the proper understanding of Lovett v Le Gall (supra) was, as King CJ stated above, and that in fact reflected the true construction of s48(3). Cakebread v Henriks (supra) and Raison v Alexoudis (supra) were disapproved and not followed.

The unsuccessful defendant in that case sought and obtained special leave to appeal from the High Court, which unanimously dismissed the appeal and determined that there was no necessity for any interaction between the ascertainment of the material fact and the plaintiff's decision to bring proceedings. It specifically approved Lovett v Le Gall (supra) and disapproved and overruled Cakebread v Henriks (supra) and Raison v Alexoudis (supra).

After the High Court decision there can be no doubt that a plaintiff is under no obligation to establish that the ascertainment of the material fact, or the material fact itself operated on the plaintiff's mind for the purpose of instituting proceedings. It is enough that the plaintiff establishes that the plaintiff learnt, for him or herself, for the first time of a material fact within the twelve months prior to the institution of proceedings. If a plaintiff can establish that, then the Court must next determine whether in all of the circumstances of the case it is just to grant the extension of time.

The Magistrate was referred to a later decision of the Full Court, Gehan v South Australian Meat Corporation (supra). In that matter the Full Court was again called upon to consider whether an extension of time ought to have been granted to a plaintiff. The reasons of the Full Court were delivered by Bollen J, with whom King CJ and Prior J agreed.

In that case his Honour said: "There is no doubt but that facts relevant to the issue of damages alone may qualify as material facts under s.48(3) of the Limitation of Actions Act. The information which so qualified in the leading case of Sola Optical (Australia) Pty Ltd v Mills [1987] HCA 57; (1987) 163 CLR 628 was information relevant to damages. The information relied on here in those two medical reports is relevant to damages. But the information relied on as a material fact or material facts must be ascertained within the relevant period. The idea is that there should be a discovery of something which affects the decision to proceed with action or not. Something new or newly known."

Later his Honour said: "But when we ask what new thing sufficient to justify bringing the action (Sola Optical v Mills (supra) at page 366) emerged in the 'ascertaining period' we are hard put to see one."

Later he said: "The appellant knew facts about his condition which facts would justify taking action. He well knew them long before 14th April 1989. Those facts were that he had recurring pain, restriction of movement and was not fit for his former work. As to the latter, at least he knew that it was probable that he would not be fit for his former work. I do not think it matters that a doctor told him he was disabled by a stated 'percentage'. But if it does, he knew that Dr

Tillinger thought him to be 20% disabled. He and his solicitor knew in March, April and May 1987 of a disability which was enough to attract (if an action succeeded) quite a substantial award. In other words they knew that disability justified the risk of litigation. In Sola Optical v Mills (supra at 636) the majority said:- 'A fact as material to the plaintiff's case is that it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify the bringing of action and is of sufficient importance to be likely to have a bearing on the case.'

The appellant knew the facts before the beginning of the 'ascertaining period'. The learned trial Judge was correct

in saying of the reports relied on that 'they showed little new'. I think that in fact they showed nothing new. There

was no ascertainment of material fact or facts within s.48 of the Limitation of Actions Act. The information in the reports is a reinforcing in the sense mentioned by Mr Heinrich and is, or is capable of being, evidence of facts already known. For these reasons I cannot agree with the decision of the learned trial Judge. I do not think that the appellant qualified for an extension of time."

His Honour has rather suggested that the material fact must bear upon the decision to sue. If that is a correct understanding of his Honour's decision, then in my respectful opinion, the decision is inconsistent with Sola Optical v Mills. If his Honour means that in the circumstances of that case the plaintiff did not learn anything new, then with respect, I would agree, but if, however, his Honour is expressing the opinion that the plaintiff must not only learn something which is new, but also that it must bear upon the decision to sue, then the decision is not in accord with the High Court decision of Sola Optical v Mills, and ought not to be followed.

I think the learned Magistrate, in this case, may have misunderstood the correct approach for applications of this kind. For a party to qualify for an extension of time under s48(3), that party need only establish that at some time within the twelve months preceding the issue of proceedings, the party himself or herself (as distinct from the party's legal adviser) became aware for the first time of a material fact.

The plaintiff is under no obligation to establish that the material fact caused or even contributed to the decision to bring proceedings.

In my opinion, the three facts which the plaintiff ascertained in the relevant period, are each material facts within the meaning of s48(3), as explained in Sola Optical v Mills (supra).

The first fact does not appear in the medical report, but is a matter communicated by Mr Cohen to the appellant at the time of the consultation on 19 July 1993. The fact communicated was the expression of Mr Cohen's opinion. True it is that Mr Cohen's opinion is based almost entirely on what he was told by the appellant, but that is not unusual. Almost all opinions in medical reports depend to an extent upon the history given by the party, the subject of the report. Some depend more heavily on a history than others, but that depends upon the matters of which complaint is made. Whilst it may be that Mr Cohen's opinion is in accord with the appellant's own knowledge, that does not mean that Mr Cohen's opinion is not a material fact. I think the learning of Mr Cohen's opinion itself was the ascertainment of a material fact, because his opinion is evidence upon which the plaintiff would rely for the purpose of making out his case, and to that extent, it is material.

Much was made of the proposition that all of this was contrived. In truth, it was put, this appellant always intended to bring proceedings, but did not because of the appellant's solicitors' default, and for no other reason. It was further put that efforts were made, on the advice of counsel, for the obtaining of a material fact and of informing the appellant of that material fact, only for the purpose of qualifying the appellant under the section. I think all of that is so, but there is nothing sinister in that. If it is a matter which would make it unjust, in the circumstances, to extend time, that is a matter which can be taken into account in the exercise of the discretion, after the plaintiff has first qualified by establishing the ascertainment of the material fact.

In Sola Optical v Mills (supra) the Court said at page 637: "It was argued for the appellant that this construction of the section opens it up to contrivance and absurdity. On the other hand, to introduce, by a process of construction,

controlling criteria to limit its abuse is to compound rather than to alleviate any difficulty. The breadth of the residual discretion vested in the court provides an ample safeguard against abuse and provides that flexibility which will facilitate the achievement of the legislative purpose, namely, a just result in a wide range of circumstances."

In my opinion, the learned Magistrate did err in his approach to the application of the law, and erred in his finding that these were not material facts.

Having regard to the fact that the learned Magistrate would have exercised his discretion in favour of the appellant, if he had been satisfied that the appellant qualified, in my opinion it would be appropriate for this Court simply to allow the appeal, set aside the decision of the learned Magistrate, and in lieu thereof, extend the time for the bringing of an action until 3 March 1994, and remit the matter to the Magistrates' Court for further hearing.