Counsel submitted that the present was such a case, with the elapse of 11 years putting the defendant in a difficult position to identify what is no longer there, or in effect to prove a negative. He referred to the decision of Young CJ in Tavsanli v Philip Morris (Australia) Ltd[17] where his Honour refused an application for an extension of time sought 10 years after a workplace accident and to the statement in the course of his reasons that "No particular prejudice has been shown but the delay itself is in total sufficiently long to infer substantial prejudice".
46 Counsel then referred to specific prejudice in the present case, arising as one of the factors to consider in s 27L(1)(b). First, real evidence had been lost, namely the key-ring and the "yard book". The latter was a significant document and "one would imagine that would be crucial to experts coming back over the scene, and trying to work out what the appropriate standard of care was here". The content of the yard book would now never be known. Secondly, one supervising witness had died, although counsel conceded from the bar table that he had been instructed that the surviving witness, Mrs Keir, does recall the incident. Thirdly, the defendant was able to speak to one of the three child witnesses and obtain a statement from him (although counsel was not sure whether he recalled the incident), but had not been able to speak to the other two child witnesses. Fourthly, the plaintiff has not given direct evidence on affidavit of the incident, which might have assisted the defendant to overcome the prejudice. And although the hearsay account of the incident provided through Mr Curnow was the usual course on an interlocutory application, the fact remained that the defendant did not have the benefit of the plaintiff's (better) direct evidence. Fifthly, there were no contemporaneous eye-witness statements. Indeed, the affidavits revealed conflicting recollections as to relevant events. For example, Mr Scanlon recalls giving Mr Curnow a copy of the accident report, which Mr Curnow denies. Also, Mr Scanlon recalls that Mr Curnow contacted the school and indicated that he did not intend to pursue the matter further, which Mr Curnow denies. Further, there is the matter of the length of time during which the boys were playing, referred to at [7] and in foot note 3 above.
47 Sixthly, the writ makes a claim for injury, particulars of which include pain, suffering and shock, and Mr Curnow deposes as to his belief that the plaintiff suffered psychological injuries, yet there is no evidence of any actual psychological treatment history, or psychological injury, apart from the evidence as to the plaintiff's distress during the interview with the barrister. Nor did the defendant have notes or reports from the Royal Victorian Eye and Ear Hospital or the original treating surgeon, Dr Barry Nicholls, or notes or reports from the plaintiff's General Practitioner. The report of Dr Elder, exhibited to Mr Curnow's affidavit, refers to an optometric assessment of the plaintiff done before the accident and which documents normal vision in both eyes, but the defendant does not have a copy of that assessment.
48 Seventhly, the defendant is prejudiced in its ability to investigate the plaintiff's claim for economic loss as there is a lack of specific allegation in the statement of claim. Also, the defendant has not been provided with relevant material such as a vocational assessment, or evidence as to the plaintiff's career intentions, or a secondary school record regarding his aptitude.
49 As to the other factors in s 27L, counsel noted as to s 27L(1)(c) that although the matter was disputed, Mr Scanlon had deposed that he provided a copy of the accident report to Mr Curnow. In short, there was no assistance sought by the plaintiff of the school which was refused. As to s 27L(1)(d) counsel accepted that the plaintiff's age was his disability, but said that there was no material as to the plaintiff suffering a psychological disability that prevented the earlier bringing of the case. As to s 27L(1)(g) counsel noted that the legal advice received by the plaintiff's father was correct at the time. As to s 27L(2)(b) the plaintiff had provided a paucity of material as to the nature of his loss, namely the medical report of Dr Elder which only dealt with one aspect of his loss. As to s 27L(2)(c), counsel submitted that the conduct of the defendant in the drafting of the affidavit as to the whereabouts of Mrs Keir lay outside the scope of the provision, but even if it was a relevant factor, the affidavit was carefully worded and not inaccurate.
50 Counsel submitted that although the legislature acknowledged that retrospective amendments to the Act would be harsh on certain plaintiffs such as the present one, the amendments represented a policy decision as to what was thought to be an appropriate balance between the rights of individuals and the need to ensure the availability of insurance.
51 Finally, although he did not press it strongly, counsel submitted that the plaintiff's remedy was to sue Kenna Croxford & Co and that whether or not the plaintiff has a remedy against the firm is a relevant factor for the Court to consider in deciding whether to extend the limitation period; see Tsiadis v Patterson[18].
Decision
52 It is convenient to deal at the outset with the last point raised above. In my view there is no support in the facts for the proposition that the plaintiff has a remedy against Kenna Croxford & Co. The firm provided Mr Curnow with correct advice in 1997. There is no suggestion, and no basis on which to suggest, that the firm was under an ongoing retainer to keep Mr Curnow updated on the state of the law. On the facts presented, there was no duty on the firm to advise Mr Curnow in 2003 as to the amendments to the Act.
53 I now consider the factors in s 27L.
54 As to s 27L(1)(a), the length of and reasons for the delay on the part of the plaintiff, I note the following. As to the length of the delay, I note the frank concession of counsel for the plaintiff to the effect that delay must be looked at overall between 1995 and 2006 and not just between the time the limitation period expired and the time of issue. In that sense, there was a delay of two years between the time of the accident and the time when Mr Curnow sought legal advice. After receiving correct legal advice in 1997, to the effect that the plaintiff could wait until 2013 to bring a claim, Mr Curnow took no further steps until 2005. But in light of the circumstances obtaining at the time he received the advice from Kenna Croxford & Co, to which sufficient reference is made in the plaintiff's submissions above, Mr Curnow made a reasonable decision not to pursue litigation at that stage. He only became aware that the limitation period had been amended retrospectively in late November 2005, which was still within the original limitation period. He then acted promptly in obtaining advice and issuing the present proceeding. It might be said that the legislature gave the plaintiff a window of opportunity (between 21 May and 1 October 2003) to issue his proceeding, but that assumes that the plaintiff's father was aware of the situation. He was not. In my view, any delay in this case was minimal and understandable in the circumstances.
55 As to s 27L(1)(b), namely the question of prejudice, I have regard to everything that counsel said and the written submissions. It is true that some evidence has been lost, namely the key ring and the yard book. As to the yard book, its contents are not known. However, the defendant has provided no evidence as to what it is that might be expected to have been found in the book additional to that in the accident report. In my view, it is not unreasonable to suppose that anything significant in the yard book would have been included in the accident report. As to the key ring, the defendant did not say what it was about the key ring that made it necessary to its defence. There is no suggestion that an equivalent key ring could not be obtained, or at least the relevant specifications ascertained, or the key ring otherwise described by witnesses. In my view any consequential additional time and expense that might be caused to the defendant is relatively minor considered as a matter of prejudice.
56 It is to be noted that apart from the accident report, the defendant did not take any statements from persons who Mr Scanlon referred to as the yard duty teachers at the time of the incident. The failure to take statements at the time is prejudice entirely of the defendant's own making. It was a failure in circumstances of an evidently serious injury. The failure had nothing to do with any conduct of the plaintiff or the lapse of time. At the time of the accident, it must be taken that the defendant knew that the plaintiff had until 2013 to sue. Even with the amendments, the plaintiff had until 1 October 2003 to sue, yet at no time between 1995 and 2003 did the defendant obtain a statement. It chose not to do so. Moreover Mr Scanlon's reference to the yard duty teachers is to be considered in light of the fact that the accident report identified only Mrs Keir as a witness. It does not refer to the deceased teacher's aid.
57 As to the availability of witnesses, I note that Mrs Keir is said to recall the incident and that she is available to give evidence. She has provided a signed statement to a loss adjuster associated with the defendant. The contents of Mrs Keir's statement were not in evidence but, as counsel for the plaintiff submitted, it can be inferred that if it contained any indication of prejudice to the defendant, the evidence would have been before me. Also, the defendant knows the identity of the three boys said to have been playing with the plaintiff at the time of the accident. The loss adjuster has obtained a signed statement from Tim Collins and there is no suggestion that it indicates prejudice to the defendant. Although the loss adjuster has not yet been able to speak to the other two boys, there is no suggestion that they will not be able to give evidence at trial. I note that counsel for the defendant did not request that the hearing be stood over until they were interviewed. Finally, I note that the accident report identifies two teachers as present in the sick bay. Regarding the circumstances overall I am not satisfied that there is or is likely to be substantial prejudice to the defendant in terms of relevant witnesses being unavailable to give evidence or suffering inadequate memory.
58 As to s 27L(1)(c), (d) and (e), it is sufficient to refer to what counsel said about these matters above.
59 As to s 27L(1)(f), I note counsel for the plaintiff's observation that the provision is drafted in terms of considering the extent to which the plaintiff acted promptly and reasonably, even though the provision applies to cases such as the present where the plaintiff was five years old at the relevant time. Nothing turns on this. Where the plaintiff is a minor the relevant acting must be that of his or her parent or guardian, together with any relevant acts of the minor. That is consistent with the fact that the limitation period runs against a minor only where the minor is in the custody of a capable parent or guardian. In this case the plaintiff acted by his father. For the reasons mentioned in the discussion on s 27L(1)(a), I am of the view that Mr Curnow acted reasonably and promptly in relation to seeking advice, both in 1997 and again in 2005 upon discovering that the law had changed.
60 As to s 27L(1)(g), I reiterate what I have said above, and add that there was no suggestion that the plaintiff and his father had not sought appropriate advice.
61 In the above discussion I have borne in mind the factors in s 27L(2). I do not find it necessary to say anything as to the interpretation of s 27L(2)(c) which was raised in the course of the submissions. The point arose out of the plaintiff's contention that Mr Scanlon's affidavit was misleading. Whatever impression the affidavit gave, or was intended to give, it ultimately became clear that Mrs Keir could give evidence. I do not take any misleading impression into account in determining the application.
62 I have regard to all of the factors set out above and all that counsel said. The question I have to decide is whether, in all the circumstances and having regard to the factors in s 27L, it is just and reasonable to extend the period of limitation. That is to be determined on a consideration of the facts and circumstances of the case considered overall. In addition to the factors discussed above, it is important to bear in mind the nature of the injury in this case. It is, essentially, a physical injury which depends on objective medical examination[19]. Although the writ refers to shock, the main issue is physical rather than psychological injury. In my view the defendant will not be unfairly prejudiced in its ability to have access to an independent and objective medical evaluation of the plaintiff's injury.
63 In all the circumstances and for the reasons stated above, I am of the view that the limitation period applicable to the plaintiff's cause of action should be extended to 24 March 2006, pursuant to s 27K of the Act. I will hear counsel on the form of the order and as to costs.