Glen Miller Rawle v Southstate Industrial Supplies Pty Ltd

Limitation Act 1969 LEGISLATION CITED: Motor Accidents Compensation Act 1999 Civil Liability Act 2002

Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182 CASES CITED: Telstra Corporation v Rea [2002] NSWCA 49 DoCarmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

PARTIES: Glen Miller Rawle (Respondent/Plaintiff) Southstate Industrial Supplies Pty Ltd (Applicant/Defendant)

COUNSEL: V Jurisich (Respondent/Plaintiff) G M Watson SC with T Berberian (Applicant/Defendant)

SOLICITORS: P.K. Simpson & Co (Respondent/Plaintiff) Wotton & Kearney (Applicant/Defendant)

1 HIS HONOUR: On 30 May 2007 the respondent plaintiff, Glen Miller Rawle, filed a Statement of Claim in this Court against the applicant, Southstate Industrial Supplies Pty Limited. He claimed damages as compensation for personal injuries caused by the applicant's negligence. It is not clear whether that negligence is alleged because the applicant was occupier of premises, or because it was the owner of a forklift which was operated in such a way as to cause a heavy object to fall on the respondent, resulting in injuries to his right leg, or on other bases. There are a number of causes of action pleaded.

2 The fact that there may be a multiplicity of causes of action is, in my view, highly relevant in these proceedings.

3 The applicant now seeks to strike out the Statement of Claim on the basis that the action is not maintainable because of the operation of the Limitation Act 1969 s50C(1). That reads: (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff; (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. It is common ground that the applicable provision is paragraph (a).

4 The date when a cause of action is discoverable is determined by subsection 50D. (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. Subsection (4) is not relevant.

5 It is not in dispute that the respondent knew immediately that the injury had occurred. He was also aware immediately that the driver of the forklift involved, and I will come to the facts in a minute, apologised to him for the incident and he says he understood that that meant that the driver accepted responsibility for the accident. He was also aware that the injury occurred on the applicant's premises. He did not know that the forklift was owned by the applicant or that the driver was employed by the applicant, but he conceded that it would have been easy for him to ascertain those facts.

6 In fact, there was some confusion about what sort of claim could be brought and against whom it could be brought. At the time of the accident, which was in April 2003, the respondent was working for a person called Barry Delbridge who is the part-time agent in Broken Hill for a transport company. There appears to have been, at one stage, a dispute about the nature of the employment, but it seems that the respondent was paid $50 a week to work on a casual basis answering telephones and otherwise assisting Mr Delbridge in deliveries. On this occasion he was assisting Mr Delbridge in making a delivery of some heavy equipment to the applicant. This equipment was removed from a truck by a forklift, but it fell onto the respondent, causing him injury.

7 A workers compensation claim was made against Mr Delbridge, but it transpired that Mr Delbridge was not insured, and the WorkCover Authority became involved. According to the respondent, the workers compensation proceedings were resolved in mid 2006.

8 In mid 2003, the respondent instructed a firm of solicitors in Broken Hill to represent him. He first contacted them about three months after the accident. That firm, Austen, Brown, Boog, employed a consultant, Mr Thomas Hynes, who took a number of steps in pursuing remedies for the respondent. On 2 July 2003, shortly after he received instructions, Mr Hynes wrote to the manager of the applicant notifying him that he had made the WorkCover Authority and the police aware of the accident, and he concluded: "Mr Rawle sustained substantial injury to his right foot and has suffered significant loss because of that injury. Please accept this as notice that a claim will be made in the future." I shall return to this point later.

9 Mr Rawle's evidence was that he instructed the solicitors to find out what his options were and to advise him. He is a man of about fifty who was employed as a miner and for short times in other occupations. For about twenty years before the accident he suffered from a serious depressive illness, which prevented him from working, and he was in receipt of a disability pension for the whole of that time. It is clear that he has a limited understanding of the law. He was able to complete, with the assistance of his then solicitors, a workers compensation claim form. I would assess him as being intelligent, but relatively unsophisticated and ignorant of legal matters.

10 It appears from his affidavit evidence, which was not challenged in cross-examination on this point, that he was not kept informed of the progress of his workers compensation claim. Before those proceedings were finally resolved after the intervention of the WorkCover Authority, he instructed his current solicitors. They in turn, retained Mr Jurisich of counsel, who represented him in this application.

11 Only after he had the benefit of Mr Jurisich's advice, did he become aware of the possibility of making a claim for compensation other than a workers compensation claim.

12 I am satisfied on the balance of probabilities that Mr Jurisich informed the respondent for the first time of the possibility of any claim other than the workers compensation claim. That, however, is not sufficient to satisfy a court that the cause of action was not discoverable until that time, because of the statutory test that I have referred to.

13 The action is not maintainable unless the respondent can satisfy me that the date when the action was discoverable fell after 30 May 2004, that is, the date three years before the Statement of Claim was lodged.

14 The respondent's case is put on the basis that he did not know the nature and extent of his injuries or of his economic loss until a date some time late in 2004 or early 2005. There are two bases for that contention. The first is that, although he knew that his right leg had been seriously injured very shortly after the accident, he was not aware of the extent of this injury until some time after the accident, and certainly, not until he had undergone at least two surgical procedures in Adelaide and quite prolonged treatment.

15 In evidence before me on this application there is a report from Dr Flecknoe-Brown, who examined him for his then solicitors late in May 2005, and from Dr Ericksen on 6 October that year, on behalf of the WorkCover Authority. There is evidence that he was under the care of a Dr Chapman in Broken Hill. He had continuing treatment medically and from a physiotherapist, at least, and it is not in dispute that, since the accident, he has always walked with a limp.

16 The applicant says that this evidence alone is sufficient to show that the requirements of s50D(1)(c) were fulfilled before May 2005. It is not clear to me that this contention can be sustained. The wording of the section requires that the person knew or ought to have known "that the injury was sufficiently serious to justify the bringing of action."

17 In this case the plaintiff had taken reasonable steps in instructing solicitors to act for him and to inform him of his options. The fact that those solicitors wrote to the applicant indicating a possible claim is not evidence that the respondent knew that the injury was sufficiently serious to justify the making of the claim. It is simply evidence that the solicitors took the courteous and normal step of advising the applicant of the possibility of a claim.

18 The respondent's evidence is that he was not properly informed until his present solicitors and counsel were retained, when he received proper advice. That is important because knowledge of whether an injury is or is not sufficiently serious to justify the bringing of the action, requires a degree of understanding of the law. That is not to say that knowledge of facts by a person's solicitor is sufficient to sheet home knowledge to that person. I respectfully adopt what was said by her Honour Judge Gibson, in a case called Perez v Instant Access Australia Pty Ltd [2007] NSWDC 182 at paras [22] to [28]. There her Honour reviewed the law relating to when knowledge of the fact by a solicitor can be attributed to the person. She considered the previous cases including Telstra Corporation v Rea [2002] NSWCA 49, and the decision of the High Court in DoCarmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. She said, and this is at para 27:

"It is not sufficient for the defendants to point to a party's solicitor as someone who ought to have known as sufficient for the information to be discoverable. That is because the section sets out...that the person ought to know that that person had taken all reasonable steps."

19 The situation here is not exactly analogous but it does seem clear to me that what the section requires is the knowledge of the person himself, not the knowledge of a hypothetical reasonable person and not the knowledge of a person employed by that person. That is particularly the case in a situation such as this, where in order to know whether the claim is or is not justified, some expert advice may be required.

20 In New South Wales, the parliament has seen fit to restrict severely the right of a person to claim compensation for personal injuries. Apart from a workers compensation claim, there are three possibilities whereby a person can obtain damages for personal injuries, and each of them requires that a person cross a threshold before recovering statutory compensation.

21 In the case of a claim against the employer, the person must satisfy a medical assessor appointed by the Workers Compensation Commission that he or she has a "whole person impairment" of at least 15 per cent before any compensation is payable.

22 Where the claim is brought under the Motor Accidents Compensation Act, there is a threshold of a whole person impairment of at least 10 per cent.

23 Under the Civil Liability Act there is no percentage whole person impairment, but a person's right to claim compensation is limited, unless they can satisfy a court that they have a significant injury.

24 The material before the Court in this application suggests that the respondent might well cross all three of these thresholds; however, that material consists of medical and medico-legal reports which were not prepared until mid 2005 at the earliest.

25 If a person - or his or her legal representative - commences proceedings and does not meet the threshold, not only will the right to compensation be nullified or reduced, but the person will also be exposed to liability for costs, and because of the requirements of certification, the legal practitioner may also be subject to sanctions. The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law.

26 In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist.

27 I am satisfied, for the reasons that I consider in relation to the stabilisation of the injury, but also because the respondent appears not to have had proper legal advice to enable him to make the necessary assessment, that he could not have known whether or not the bringing of an action was justified, until at least the beginning of 2005.

28 I want to say something about stabilisation of the injury. The applicant concedes that this was a serious injury, indeed, the applicant's case is based on the apparent nature of the seriousness of that injury. There is only one report before me which considers whether or not the injury had stabilised sufficiently to allow an assessment to be made of whether or not a claim was justified, and that is in the report of Dr Ericksen dated 6 October 2005 which says: "He indicated that overall improvement has occurred. And he defined this as about a 40 per cent improvement. His condition has remained unchanged for the last 12 months."

29 This report was prepared for and addressed to the WorkCover Authority, and it is not clear that the respondent was aware of it. However, it puts beyond doubt the fact that there were changes in the condition of the respondent's leg, leading up to and including a date about the beginning of October 2004, which is the earliest possible date upon which any assessment could be made.

30 The legislation clearly does not require the commencement of a claim until the full extent of the injury and loss are known. This is particularly so in the light of the requirements for certification by legal practitioners, when action is commenced. I could not find that the time when this injury was capable of being assessed for the purposes of s50D(1)(c) was any date before October 2004. The date upon which the injury was discoverable must be after that date.

31 A further consideration is the possibility of assessment of the loss for which the claim is made. On the material before me it appears that the respondent was working, admittedly on a casual basis and for only a few hours a week, at the time he was injured. His evidence was that, at the end of 2005 or the beginning of 2006, he tried for a week to work for a tile supply company, but because his leg would not permit him to do the lifting and carrying, he left. In order to determine whether or not the making of a claim is justified, it would be necessary for the respondent to have at least some idea of whether or not he was capable of working, so that he could assess whether or not he would be justified in making a claim for loss of future earning capacity and, if so, the extent of that claim. I accept the submission that this was not possible until he actually tried to work.

32 I find, therefore, on the balance of probabilities, that this cause of action was not discoverable until first, the injury had stabilised; secondly, at least in approximate terms, the nature of the claim that could be made for economic loss was apparent; and thirdly, that the plaintiff had obtained legal advice in the light of the assessment of the extent of his injury, and the impact on his future earning capacity.

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