Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230

Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230 - VSCA 2000 case summary — Zoe

[9]

I further agree with Chernov, J.A. that the words of s.5(1A) do not mean that a plaintiff has to know that the acts or omissions of some person, which caused his or her injuries, were wrongful or negligent before the cause of action is taken to have accrued. Rather, in cases such as the present, where the plaintiff has at all material times been compos mentis, the words mean that the cause of action predicated by the sub-section will be "taken to have accrued" when the plaintiff knows that he or she has suffered personal injury and knows that the injury has been caused by the act or omission of some other person. The cause of action referred to in s.5(1) has always been taken to accrue on the date when a person has been injured by the act or omission of another. The fact that the injured person does not know or believe that the act or omission of the other person causing the injury was negligent has not prevented time from running against the injured person[1]. It is usually only when that person has taken advice that he or she will become aware that the cause of action (which has already arisen) is actionable. That is why the six year limitation period has been set by the legislature as a compromise of fairness between the person injured and the person whose acts or omissions have caused the injury. Over the years it has been recognized that that balance of fairness can be distorted against the interests of the person injured, particularly in those cases of insidious disease caused by the act or omission of others, where the symptoms of the disease do not emerge for many years[2]. Accordingly, many State legislatures have sought to restore the balance by permitting injured persons to apply to the Court to extend the limitation period. In Victoria that was done by introducing s.23A into the Act in 1972, and by further amending the section in 1983 to give the Court an even wider discretion to extend the period. However the limitation period prescribed by s.5(1)(a) of the Act remains the "rule" for actions founded upon tortious conduct. S.5(1A) prescribes a legislative exception to that "rule" by providing that where a claim, founded (inter alia) upon negligence or breach of duty, is for damages in respect of personal injuries "consisting of a disease or disorder contracted", then the cause of action "shall be taken to have accrued on" the date when the person injured first knows that he or she has suffered those injuries and that they were caused by the act or omission of another. Having regard to the framework of the Act, and in particular to the inter-relationship between the provisions of s.5(1A) and the provisions of ss. 5(1)(a) and 23A, it would, I think, be surprising if the legislature had intended that a word such as "wrongful" or "negligent" should be implied into s.5(1A)(b). I say that it would be surprising, because the sub-section contemplates that, irrespective of any prejudice to the potential defendant, the "limitation time clock" will not start to run until a date which may be many years after the date when the breach of duty occurred. In those circumstances, it is not readily to be assumed that the legislature intended that the cause of action does not accrue until the person injured acquires actual knowledge that the act or omission causing the injuries was "wrongful", when the "general time limitation rule" provided for in s.5(1)(a) makes no such assumption.

[31]

At first blush, the Court was of the view that it was not in a position to determine, on the material available to it, the issues between the parties which would need to be resolved to enable it to make an appropriate assessment of damages. Indeed, in a case such as this, where the claim is for damages against solicitors for negligence in permitting a cause of action to become statute barred, it would generally be difficult for an appellate court to assess damages without having before it clear and unchallenged findings of fact made by the trial judge. Mindful, however, of the plight of the appellant and of the extent and cost of litigation to which she has already been subjected, the Court entertained submissions from the parties directed to the question whether it could properly assess damages for itself or whether the matter should be remitted for those damages to be assessed. Having heard those submissions we came to the view that we could not appropriately assess the damages ourselves and we advised the parties accordingly. We so concluded because there are several issues in contention between the parties which are the subject of disputed fact or opinion and the resolution of which, in the absence of any, or any adequate, reasons given by the trial judge, would leave this Court in a position of having to make an assessment based upon an unsound foundation. For example, we were informed that the respondents presented substantial argument to his Honour in support of their contention that due allowance should have been made for prospects which the appellant had, but denied to herself, of making an application to extend the time limits under s.23A. No reference was made to this argument in his Honour's reasons. There were other unresolved issues going to such matters as the prospects of success of a claim brought by the appellant against her former employer; as to whether any and what allowance should be made in the award of general damages for sums paid or payable to the appellant by way of lump sum under s.98 of the Accident Compensation Act; as to discounts (if any) which should be made for weekly payments likely to be made to the appellant under the Accident Compensation Act when assessing loss of future earning capacity; and as to the value of rights retained by the appellant under the Workers Compensation Act 1958 in respect of the injury suffered in 1984. Each of these issues was the subject of disputed evidence and his Honour's reasons for resolving them disclosed little by way of substance for his conclusions. In this respect I attribute no criticism to his Honour who had embarked upon a hypothetical exercise at the behest of the parties. However, in the light of the matters to which I have referred, it became apparent that this Court would be doing justice to neither party, and would in all probability be compounding the problems, if it were now to essay an assessment of damages upon the material which exists only in transcript form, and where the Court does not have the benefit of full reasons of the trial judge for arriving at the assessment which he made.

[76]

There are, in my opinion, sound reasons for favouring the view that s.5(1A) does not operate in relation to traumatic personal injury claims and that the limitation period in respect of them is prescribed by s.5(1)(a). First, although s.5(1)(a) and s.5(1A) are the only provisions in the Act that prescribe the limitation period in respect of personal injury claims, their wording suggests that they are mutually exclusive in that each relates to different categories of personal injury claims so that those falling within s.5(1A), for example, do not also fall within s.5(1)(a) and vice versa. This follows from the definition in s.5(1A) of the personal injury claims to which the provision relates, namely, "personal injuries consisting of disease or disorder" and from the effective exclusion of those injuries from the operation of s.5(1)(a) by the words "(subject to sub-section (1A))" as they appear in that sub-section. Secondly, the terms and the operation of s.5(1A) suggests that it relates only to personal injuries which ordinarily take a considerable period of time to manifest themselves to the injured person, hence the provision that the cause of action shall not be taken to have accrued unless the plaintiff knows "that he has suffered those personal injuries". No such postponement of the limitation period is necessary as a matter of fairness in respect of traumatic personal injuries because in nearly all such cases their existence is recognised at or shortly after the happening of the relevant event. It is true that often the full extent of a traumatic injury may not be ascertained until after the lapse of a considerable period of time, but the fact of such an injury would be known almost immediately or shortly after the event in question. Even where, in the relatively unusual case, the fact or the existence of the injury caused by a trauma is not known until after the expiration of six years after the event, the justice of the situation is met by the opportunity to have the limitation period extended pursuant to s.23A. Next, the use of the word "contracted" in relation to personal injuries consisting of disease or disorder is consistent with such injuries not being the result of a trauma. Ordinarily, traumatic injuries are said to be "caused" or "sustained" rather than "contracted". Further, if traumatic injuries fell within s.5(1A) much of s.23A would be unnecessary and irrelevant.

[86]

It will be recalled that in this case, contrary to the typical situation, the appellant claims that she knew more than six years before March 1993 that there was a causal connection between her wrist injury and her working conditions at Costa's. On the other hand, the respondent, also atypically, claims that there was no such knowledge on the part of the appellant prior to March 1993 and that his Honour so held. It is true that his Honour said that there was "little direct evidence as to whether the appellant knew prior to her retaining her present solicitors in March 1993 that the personal injuries she suffered were caused by the act or omission of her employer, Costa's." But his Honour made that observation immediately after he had concluded that he was bound by the authorities to imply "wrongful or negligent" into the subsection so that, until the plaintiff first knew that her wrist injury was causally linked to an act or omission of Costa's which was wrongful or negligent, the period of limitation against her for the purpose of s.5(1A) did not commence. Thus, his Honour made the observation in the context of assessing whether the appellant knew that Costa's relevant act or omission was wrongful or negligent. His conclusion after reviewing the evidence was, as I have said, that the appellant did not know prior to March 1993 that her injuries were caused by the wrongful or negligent act of her former employer. It was on that basis that his Honour concluded that the appellant had not lost her right to bring an action for common law damages against Costa's. Given that his Honour construed para.(b) of s.5(1A) as he did, there would have been no point to his considering if and when the appellant first knew merely of the causal connection between the injury and the act or omission of Costa's. Consequently, in my view, on a fair reading of his Honour's judgment, there is no finding that the appellant did not know until March 1993 that there was a causal connection between her wrist injury and her working condition at Costa's.

[87]

Mr. Gorton submitted that, in any event, the evidence showed that the appellant was not aware of such a causal connection until March 1993. He contended, for example, that, although Dr. Korman told the appellant that she had tenosynovitis in her right wrist, he did not, in terms, tell her that the condition was caused by her working conditions. But even assuming that to have been the position, it does not follow that the appellant did not discern at or shortly after seeing Dr. Korman that there was such a connection between her injury and her work. Moreover, Dr. Korman told the appellant that she had tenosynovitis after he not only examined her, but after he ascertained from her what work she performed. His pronouncement after being told about her work would have suggested to her that, in the doctor's view, her injury was causally related to her work. Mr. Gorton also argued that the appellant may have become aware that the symptoms of her injury increased by reason of her work, but that that should not be equated with knowledge of acts or omissions on the part of Costa's as a cause of the injury. Symptoms might provoke the sufferer to make inquiries to acquire knowledge, said Mr. Gorton, but there is no evidence of such inquiry or acquisition of relevant knowledge in this case. In my view, however, once the appellant appreciated that her injury deteriorated because of her work, she became aware for the purposes of s.5(1A) of the causal connection between her injury and Costa's act or omission so as to be on notice that she should seek advice about her right to claim damages in respect of her injury from her former employer. In my opinion, the uncontradicted evidence of the appellant makes it clear that she well knew at the latest in the latter part of 1985 that her injury was causally related to her working conditions - that is, the "act or omission" of Costa's. That the appellant appreciated this situation during that period is amply demonstrated by her attendance on the respondent in October 1985 for the very purpose of seeking advice as to her legal rights in respect of her injury.

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Judgment (97 paragraphs)

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