Cunningham v Independent Unit Management Pty Ltd

Mr A Campbell (Plaintiff) COUNSEL: Mr R Perla (First Defendant) Mr K Kelleher (Proposed Second Defendant)

Gerard Malouf & Partners (Plaintiff) SOLICITORS: Moray & Agnew (First Defendant) Gadens Lawyers (Proposed Second Defendant)

HIS HONOUR: This is a Notice of Motion, filed by the plaintiff on 8 September 2008, to join a second defendant to already existing proceedings. The Motion is brought pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005.

The plaintiff relies on an affidavit she swore on 3 June 2008 and two affidavits of a solicitor, Mr Cossalter, sworn on 22 April 2008 and 29 May 2008. The defendant relies on an affidavit of Ms Blacker sworn 1 October 2008.

The affidavit of Ms Blacker raises the point that the proceedings against the proposed second defendant are 'out of time' and therefore leave should not be granted. It was not disputed that the proposed defendant could take a limitation point in resistance to his being joined to the proceedings.

The only point that arose in respect of the general joinder issue was whether there was any evidence that suggested the proposed defendant was responsible for the work which played a part in the plaintiff's injury. This point became of less significance with the tender of Exhibit B which contained an invoice from Harrington Electrical Services ("Harrington") to which was annexed a work order which establishes that there was work carried out by Harrington at or near the alleged site of the injury. In final submissions learned counsel for the proposed defendant made little of this issue, preferring to concentrate on what was the real dispute agitated before me.

The real dispute I have referred to arises from the Limitation Act 1969 and in particular in its form since December 2002. The question here is what was the date of discoverability which would have triggered the three year limitation period set by Section 50C.

The date a cause of action is discoverable is dictated by Section 50D, which is in the following terms:- " 50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by the fault of the defendant,

(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased." 7. The only part of Section 50D(1) which was the subject of argument before me was sub-paragraph (b), namely when was the first date the plaintiff knew or ought to have known "the fact that the injury … was caused by the fault of the defendant". In relation to this question argument also took place on the terms of Section 50D(2) especially in regard to whether the actions (in this case inaction) of the plaintiff's solicitors should be imputed to the plaintiff.

The background to this matter is as follows. The plaintiff was born on 21 March 1956. She is married and has a son who has at least one son of his own. On 22 July 2004 the plaintiff's son was living at Allard Place, Ingleburn. I take these premises to be a collection of townhouses or apartments. On the above date, after darkness had set in, the plaintiff was taking her grandson out of her car when she stepped back and tripped over an electrical fitting. A photograph of this fitting can be seen in Exhibit A.

On 31 August 2004 the plaintiff consulted her solicitors, Gerald Malouf & Partners, with a view to taking action to recover damages for her injuries. These injuries include damage to her right shoulder which has necessitated surgery.

There was no dispute that Gerald Malouf & Partners is a firm of solicitors that holds itself out as specialising in personal injury litigation. Once the plaintiff had put the matter into the hands of her solicitors she effectively left it with them to progress her claim. The affidavits of Mr Cossalter then detail the actions taken by the solicitors. At best their efforts could be described as tardy, at worst as almost ineffective. For example, on 28 February 2005 the solicitors were informed that the current defendant was the Strata Manager for the premises. It was not until 14 September 2005 that a letter was sent to the Strata Manager requesting information about who had carried out the electrical work on the premises. There then followed a good deal of basically ineffectual activity which initially led to a contractor called KR Flanagan being sued as a defendant. This was abandoned when that firm's solicitors wrote to the plaintiff's solicitors telling them that KR Flanagan had no involvement with the light fitting in question. Even the affidavit of Mr Cossalter, in some respects, is difficult to understand (see for example paragraphs 17 and 19 of his affidavits).

In her affidavit the plaintiff says that about 20 years ago she was diagnosed with a bipolar condition and she has more recently developed a diabetic condition associated with medication she had been taking for the former problem. She states: "because of my ill health I have been unable to provide my solicitors with instructions on occasion and my husband Bruce has been acting on behalf of my interests". Mrs Cunningham was not required for cross examination and I have no reason to doubt the statement made in her affidavit. She goes on to say that "prior to 3 March 2008 I did not have in my possession any information that could have assisted my solicitors with their enquiries in commencing proceedings against the proposed defendants". I am not sure of the significance of this date. I thought it might have been the date of a mediation but this seems to have been 3 April 2008 according to Mr Cossalter's second affidavit.

The plaintiff says that the date of discoverability was 7 November 2005 or later. This was the date, I was told, when the documents produced under subpoena (Exhibit B) by the current defendant were sent to the plaintiff's solicitors. This is not confirmed by Mr Cossalter's affidavit. In fact as I read his affidavits (paragraph 50 of each) this material did not become available until 24 October 2007. Mr Cossalter refers in his affidavits (paragraph 15 of each) to a facsimile from Independent Unit Management received on 21 April 2006 which enclosed some documentation including an invoice from Harrington. On the affidavit evidence this would have been the first date the plaintiff's solicitors came into possession of material suggesting the possible involvement of Harrington. The extra information in the documents produced under subpoena is the Order from the current defendant which identifies the location of the work to be carried out by the proposed defendant.

The defendant says that the date of discoverability is 31 August 2004 when the plaintiff consulted her solicitors. In the alternative, it was submitted that the date of discoverability would have been some time after 31 August 2004 but within a period during which reasonable enquiries would have identified the proposed defendant. This reasonable period would have expired, it was submitted, certainly within 12 months or so, after the plaintiff consulted her solicitors.

The defendant relied heavily on the decision of Judge Johnstone in Baker-Morrison v State of New South Wales [2008] NSWDC 129, a decision which I note was quoted with approval by Fullerton J in the Supreme Court in Foster v QBE Insurance (Australia) Limited [2008] NSWSC 1004. In particular, the defendant relied on paragraphs 25, 26, 27, 28 and 29 of Judge Johnstone's judgment. The argument flowing from this judgment is to the following effect: That the limitation period would have commenced when the plaintiff saw her solicitors because at that stage she knew she had an action and all that was required, and she had three years to achieve it, was to identify the defendant. It seems to me that this approach does not fairly flow from his Honour's judgment for the following reasons:- (a) In Baker-Morrison there was a clearly identified defendant. (b) His Honour specifically did not deal with the situation where a plaintiff might decide to join another defendant. He said " I did ponder the question as to what the situation might be if, later, the plaintiff decides to join another defendant, but that should be left for another day, if required ".

In my view the three year period is not time during which a defendant may be identified; rather it is the time during which, the defendant having been identified, the plaintiff has the opportunity to make such preparations and investigations as will allow that (already identified) defendant to be successfully sued.

In order for the defendant's argument to succeed, Section 50D(1)(b) must be read as if it said "The fact that the injury or death was caused by the fault of a defendant". Because the Section refers to "the defendant" I think that it must refer to the knowledge that the injury or death was caused by the particular defendant who is being sued.

The proposed defendant was not identified until 21 April 2006. This must be the earliest date of discoverability. Three years from this date allows the plaintiff to commence proceedings against the proposed second defendant until 21 April 2009.

The next argument arises from Section 50D(2). The argument here, as it was put by the proposed defendant, was that had the plaintiff's solicitors taken all reasonable steps to ascertain the identity of the responsible electrical contractor they would have discovered that information well before April 2006 and in fact shortly after the plaintiff consulted her solicitors. I agree that the plaintiff's solicitors could have discovered the information, acting reasonably and competently, well before 2006. However, it is the knowledge of the plaintiff that is important, unless it can be said that the actions of her solicitors could be imputed to her. In my view they cannot. The Act refers to whether "a person ought to know" and that person must be the plaintiff (see also Foster v QBE at paragraph 16). If a plaintiff consults a solicitor, especially a personal injury specialist, and provides that solicitor with the information that the person knows, then the person has "taken all reasonable steps … to ascertain the fact".

The next point taken by the proposed defendant is that a time will come when a person who has reasonably placed a matter in the hands of solicitors should enquire of them of their progress and if it is discovered that there has been no appropriate progress, should then take matters into his or her own hands. I think a time ought come when a person would have a responsibility, acting reasonably, to enquire of his or her solicitors. However, I do not think that time would have occurred in this case prior to 21 April 2006. In coming to this conclusion I take into account that the plaintiff is not a sophisticated person (she was a cleaner at the time of the accident) and suffered ill health which incapacitated her from time to time.

I therefore make Orders 1 and 2 as sought in the Notice of Motion filed on 8 September 2008.

I further order that the plaintiff pay the costs of the Motion. This motion is a product of lengthy delay on the part of the plaintiff's solicitors. I note that on 1 May 2008 Judge Garling, in respect of the motion that was before him, said the plaintiff's solicitors should reimburse her in respect of costs she was ordered to pay. I will not go that far; however, I would regard it as somewhat unjust if the plaintiff were to personally bear the costs of this motion.

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