Sandra Ellen Mills v Perpetual Trustee Limited & Ors

District Court of NSW|2008-08-22

CITATION: Sandra Ellen Mills v Perpetual Trustee Limited & Ors [2008] NSWDC 210

DECISION: Application to extend the limitation period is refused.

CATCHWORDS: Personal injury - Limitation period - Application to extend the limitation period

LEGISLATION CITED: ss 60G, 60I Limitation Act 1969

Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Commonwealth of Australia v Smith [2005] NSWCA 478 CASES CITED: Drayton Coal Pty Ltd v Drain NSWCA, unreported, 22 August 1993 Harris v Commerical Minerals Ltd (1996) 186 CLR 1 State of NSW v Young [2004] NSWCA 204 Telstra Corporation v Rea [2002] NSWCA 49

PARTIES: Sandra Ellen Mills Perpetual Trustee Limited & Ors

Ms Wall for the Plaintiff (Mrs Mills) COUNSEL: Mr Gruzman for the 1st Respondent/2nd Defendant (Savills) Mr Grant for the 2nd Respondent (Glad Cleaning)

On 6 September 2002, Mrs Sandra Mills slipped and fell over in Ashfield Mall. She injured herself quite badly. She had fallen over on some ice-cream which was near an ice-cream shop. She went to the management centre of the mall to complain. She knew about the ice-cream.
Later she saw some solicitors. They started a case for her in this court. They sued the owners of Ashfield Mall, Perpetual Trustee Limited, the now first defendant. Later, the solicitors joined the proprietor of the ice-cream shop, Bau Ly Chung, as the second defendant.
However, who was not sued - and what this case is about - were the operators of the mall and the cleaners of the mall. It is now too late to sue them because there is what is commonly known as a statute of limitations, which is three years. But the statute of limitations provides for exceptions. The question in this case is whether Mrs Mills can satisfy me that she comes within the exceptions to the statute of limitations so that I can allow her to now sue the operators of the mall and the cleaners.
To put this briefly in legal terms, the statute of limitations is the Limitation Act 1969 . That provides, for a case such as this, that a person must sue within three years of an accident. The Act provides for a judge in their discretion to extend the limitation period. The relevant section to this case is s 60G. Section 60G(2) provides as follows: " If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines. " Section 60I is another provision of that Act which is relevant to this case. Subsection (1) is the relevant part of that section and it relevantly provides as follows: " A court may not make an order under section 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a) (i)- (iii). "
Mrs Mills, through her counsel Ms Wall, does not seek to rely upon s 60I(1)(a)(i) or (ii). In other words, she does not seek to convince me that she did not know that personal injury had been suffered or that she was unaware of the nature or extent of the personal injury suffered. What she does rely upon is (iii) and she asserts that she was unaware of the connection between the personal injury and the act or omission of either the operators of the mall or the cleaners.
I turn now to the questions which have to be determined by me under the Limitation Act . I will make references to the evidence in the course of making my findings.
Although s60I follows, in the statutory sequence, s60G, s60I has been described as the gateway to s60G. The s60I questions have to be addressed first because I may not make an order at all under s 60G unless I am satisfied of the matters set out in s 60I. As I said, what is in issue in this case is the question of Mrs Mills' asserted unawareness of the connection between her personal injury and the alleged acts or omissions of the operators of the mall and the cleaners.
I will deal first with the cleaners. The cleaners are Glad Cleaning Services Pty Ltd. By her notice of motion filed on 1 June 2007, Mrs Mills seeks my leave under s 60G of the Limitation Act to join Glad Cleaning Services Pty Ltd out of time. The question for me under s 60I is this: am I satisfied that Mrs Mills was unaware of the connection between the personal injury and Glad Cleaning's act or omission at the expiration of the limitation, namely 6 September 2005, or at a time before then when proceedings might reasonably have been instituted?
I have been assisted by all counsel - Ms Wall, Mr Grant who appears for Glad Cleaning Services Pty Ltd and Mr J Gruzman who appears for the cleaners, now known as Savills (NSW) Pty Ltd - with regard to the relevant authorities. The relevant law, in my opinion so far as this provision is concerned, is contained in the following propositions.
First, it is Mrs Mills' actual awareness of any connection that I am here concerned with (see Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9-10).
Second, the onus is on Mrs Mills to satisfy me of her unawareness (see Drayton Coal Pty Ltd v Drain (NSWCA, unreported, 22 August 1993)).
Thirdly, s 61I(1)(iii) is concerned with the ignorance of the existence of acts or omissions rather than legal conclusions. The plaintiff's awareness of legal conclusions does not matter (see Drayton Coal).
I will now turn to the findings which I make under this issue to be determined. I turn first to exhibit 22 which is a document called "Statement of Events". It is typed. Under the heading "Statement of Events" is typed "Sandra E Mills v Ashfield Mall". It is a three-page document.
Mrs Mills was crossexamined about that document at T209 by Mr Grant. She there acknowledged that exhibit 22 was a statement made by her. She agreed that the statement was likely to have been made on 25 June 2003 which is the date recorded in the second-last paragraph of the exhibit. She agreed T287 that exhibit 22 was a document she prepared setting out her recollection and that it is the document she took with her in order to consult a solicitor, Mr Voros. That consultation occurred on 26 June 2003, the day after the document was written. As Mrs Mills was asked by Mr Grant at T290: " Q. So you, do I take it from that, when this document was prepared for your conference with Mr Voros the following day, your concern was to highlight the involvement of the cleaners and the fact that you were concerned they might be denying some responsibility for not cleaning up the floor before your accident? A. Yeah. " On the second page of the document, under what appears about halfway down the second page the heading reading "Page 2", these paragraphs appear: " Centre management contacted the Ashfield Mall's cleaner who later arrived with a mop and bucket. The cleaner told centre management that there was only serviettes on the floor. I told the cleaner that 'The serviettes were placed on the floor by people who witnessed the accident to cover the icecream to prevent other people falling as I did'. I then showed centre management staff the ice-cream that was still on my shoe as proof of what I had said because I had said that the cleaner was denying that there was any ice-cream on the floor. (Maybe because it should have been cleaned up before the accident either by Wendy's staff or by the cleaners.) " The passage itself in exhibit 22 contains some typing errors which were cleared up with Mrs Mills in cross-examination.
Mrs Mills was asked some questions over T212-213 by Mr Grant. She acknowledged that she now knows that the name of the cleaners is Glad Cleaning and she acknowledged that in the document she was concerned that the cleaners had not cleaned up the ice-cream before she slipped on it. She agreed that she was concerned that the cleaners were attempting to deny that there was ice-cream on the floor, that is, that they had done their job, and she agreed that so far as she was concerned, they had not done their job.
Exhibit 23A became an important exhibit in this case. It turned out in cross-examination that Mrs Mills keeps a personal dairy. She kept a personal diary at all times relevant to this case. She notes in it appointments and observations and matters of personal interest. The diary was photocopied and became exhibit 23A. She made a diary entry on the day of the accident, 6 September 2002. She was cross-examined about that and agreed that she had noted in the diary that: " Scott came back to Wendy's and spoke to the staff about the chocolate ice-cream on the floor. The girls from Wendy's said two boys had a fight, dropped the ice-cream on the floor ". The reference to Wendy's is a reference to the ice-cream shop which was named Wendy's. The reference to Scott is to Mrs Mills' son who was with her at the time of the accident. Mrs Mills further agreed that she had also noted in the diary on that day the following: " But why didn't the staff clean the icecream off the floor ." Mr Grant asked her about that entry in the following question: " So you were concerned as to why that ice-cream hadn't been cleaned off the floor before your fall? " She said, "That's right."
She was also questioned about an entry on 18 November 2002, some two and a half months after the accident. She had noted in the diary on that day that Scott had taken some photographs of the area where she fell in front of Wendy's and that he had gone and told the centre management. Although there was some question about whether Mrs Mills was actually present when her son took the photographs, she agreed at T241 that the reason why the photos were taken was because they were to do with her claim against Ashfield Mall.
Another relevant entry is on 28 April 2003 and she was questioned about that entry over pages T270-271. The entry concerned her observation on that day of a drink spilt on the floor in front of Wendy's. It notes that she and her son watched for half an hour, followed by her son approaching the Wendy's staff, who did nothing. Her son then approached the centre management and told the staff, who rang the cleaners. The cleaners came and cleaned up the spillage. The diary notes that the spillage was at the same location where she had fallen. In cross-examination by Mr Grant at T270, Mrs Mills agreed that she was waiting to see how long it took to be cleaned up. She agreed that she was concerned that someone would slip on the spillage at that time and fall because it was on the floor for so long.
Over T371-372, Mr Grant put his case in summary to Mrs Mills relevant to this question. He put to her that from the diary entries over the period 2002 to 2003, she was making notes about the cleaning and spillage in those premises and she agreed that that was in her diary. She agreed that she was making notes about the time it had taken the cleaners to come and clean up the spillage, and she agreed that she was making notes about subsequent incidents where people had fallen about the area.
Mrs Mills has not satisfied me that she was unaware of the connection between her personal injury and Glad Cleaning at the expiration of the relevant limitation period. First, I observe from exhibit 22 that Mrs Mills was clearly aware of the difference between centre management and the cleaners. The note in brackets in the passage which I have earlier quoted recorded that: "( Maybe because it should have been cleaned up before the accident either by Wendy's staff or by the cleaners.)" I should say the finding I make there is that she was aware of the distinction between the responsibility of Wendy's and the responsibility of the cleaners.
I am also satisfied that she was aware of the distinction between the centre management and the cleaner from the first paragraph in the passage that I have quoted where Mrs Mills said that, " Centre management contacted the Ashfield Mall's cleaner who later arrived with a mop and bucket. "
I am satisfied by reference to the evidence to which I have referred that Mrs Mills was aware of a connection between her fall and some possible dereliction of duty on the part of the cleaners. Indeed, she acknowledged a concern that the cleaner may have been denying that there was any ice-cream on the floor at all. I repeat, Mrs Mills has not discharged the onus of satisfying me that she was unaware of the connection between her injury and Glad Cleaners' acts or omissions.
I turn now to the corresponding question concerning the operators of the mall, the corporation that I will call Savills. The question here is am I satisfied by Mrs Mills that she was unaware of the connection between the personal injury and Savills' act or omission at the expiration of the limitation period, namely 6 September 2005, or at a time before then when proceedings might reasonably have been instituted. The legal principles are the same as those which I referred to in respect of Glad Cleaning. Once again I will make reference to the evidence in the course of making my findings.
First, it is important to note that the corporation which Mrs Mills seeks to join as a defendant is Savills (NSW) Pty Ltd and exhibit 4 at para 26 satisfied me that that corporation was formerly known as Byvan (NSW) Pty Ltd. That is not in dispute.
A relevant and important exhibit so far as this issue is concerned is exhibit 24. Exhibit 24 is a photocopy of a card which Mrs Mills acknowledged that she received from a person in the centre management's office on the day of the accident. At T223 she was shown the card by Mr Grant in cross-examination. She agreed that on the card was written the word " Byvan". I observe that under the word "Byvan ", are the words "Shopping Centre Management ". Handwritten on the card is the word "Sarah ". Mrs Mills agreed at T224 that exhibit 24 was probably the card given to her by the woman in the centre management office described by Mrs Mills as the security girl Sarah. I am satisfied that exhibit 24 was a card given to Mrs Mills on 6 September 2002 by Sarah in the office of the shopping centre management.
Once again, the diary, which is exhibit 23A, contains a relevant entry on 28 October 2002 about six weeks or so after the accident. Mrs Mills was asked questions about that entry by Mr Grant at T231. The diary records that on 21 October 2002 Mrs Mills went to the centre management at Ashfield Mall about her fall which had occurred on 6 September 2002. It records that she was " told to write a letter quoting how the accident happened."
It also records that she proposed at that stage to ring a solicitor whom she knew and who had acted for her in other matters. It notes that she could not afford to continue to pay for her treatment. Mrs Mills' unchallenged evidence is that at that stage she was expending what was for her a significant amount of money on treatment, which she says was necessary as a result of that fall which is the subject of these proceedings. She agreed in cross-examination that she went back to the centre management about her fall on 28 October 2002. She agreed that she raised with them whether they would cover her costs for her medical treatment. It was the same office which she had attended on the day of her fall. The person she saw on 28 October 2002 was a man who came out who was wearing a suit.
Exhibit 5, I am satisfied, are notes taken on 26 June 2003 either by Mr Voros, solicitor, or by an employee of his. They are notes of a conference between the firm's representative and Mrs Mills concerning her fall at Ashfield Mall on 6 September 2002, although there appears to be a mistake regarding the date of the accident which appears to be recorded as 6 December 2002.
The notes record information which I am satisfied came to the firm's representative from Mrs Mills. The notes record that the centre management was Byvan (NSW) Pty Ltd at the Ashfield Mall. The notes record that Sarah was the security girl who took a statement from Mrs Mills and that David Ellis was the operations manager at Ashfield Mall. I should add that the name David Ellis appears on exhibit 24 and under that name the words "Operations Manager, Ashfield Mall". I am satisfied on the balance of probabilities that the card, exhibit 24, was either given to the firm's representative on 26 June 2003 or the information on that card was provided to the firm.
Mr J Gruzman, who, as I said, appears for Savills, asked Mrs Mills some questions about another diary entry in exhibit 23A which is for 13 October 2002. The diary entry records that Mrs Mills is going to make a claim from Ashfield Mall from when she fell and hurt herself. Mrs Mills accepted that the diary appeared to indicate that some thirty-seven or thirty-eight days after the accident she had formed the view that she was going to make a claim against Ashfield Mall. Mr Gruzman then took her to the entry of 28 October 2002 and she acknowledged that she had been to see the centre management about her fall for the purpose of obtaining information about making a claim against the mall.
He took her to the entry on 6 November 2002 which recorded that she had phoned a solicitor on that day. The solicitors, I note, were Shanahan Tudhope. They were solicitors who had acted for Mrs Mills in another matter and they were the solicitors whom she first contacted concerning her fall. She later contacted and retained another firm of solicitors. She agreed with Mr Gruzman that the purpose of contacting Shanahan Tudhope was to pursue them to act for her in relation to her claim against the mall. She agreed with this proposition: "So by this stage you'd well and truly formed the view, hadn't you, that the mall was responsible for your injuries?" She agreed that she was interested in the costs for all her medical expenses because she had no income and her husband was on a pension. She agreed at T480 to T481 that on the day of the fall the first person she thought to go to and complain about the fall was the centre management, and she agreed that so far as the ice-cream was concerned there should have been some warning put there by the management about the ice-cream or that they should have cleaned it up.
Mrs Mills agreed at T298 - 299 that she had received a letter from Voros Lawyers, the solicitors later retained by her to act in this matter, dated 8 August 2003. The letter referred to her conference with them on 26 June 2003, to which I have already referred so far as the representative's notes were concerned. The letter confirms that the solicitors " have written to Ashfield Mall (Byvan) (NSW) Pty Ltd) and have requested copies of any CCTV/surveillance videos, and relevant investigation notes and details in respect thereto. " She agreed that was the letter which was sent following her first conference with Mr Voros.
Mrs Mills has not satisfied me that she was unaware of the connection between her personal injury and Savills' act or omission at the expiration of the limitation period on 6 September 2005. That is, in my opinion, clear from exhibit 24 obtained on the day of the accident which names Byvan (which Savills (NSW) Pty Ltd were then known as) as the shopping centre management and names a person who is an operations manager of Ashfield Mall, and it is clear from her attendances at the office of the centre management about her injuries and her acknowledgement that she had formed the view that the mall was responsible for her injuries.
It is also clear from the letter which was written to her in the form of exhibit 7, where Byvan was named as the organisation to which the solicitors had written, that name being consistent with the information which was given to Mrs Mills on the day of the accident. Mr Gruzman in his written submissions argued that the " evidence discloses that from probably the day of the accident the plaintiff knew of Byvan (NSW) Pty Ltd, knew its capacity as manager of the Ashfield Mall and its connection between her injury and its alleged acts or omissions. "
I accept that submission for the reasons for which I have just given. I also accept the submission that her various visits to the Ashfield Mall Centre Management Office demonstrate that she " must have formed a view that there was a connection between Savills (the centre manager) and her personal injury to attend and make such demands. " For the reasons I have just given, I repeat that I am not satisfied that Mrs Mills was unaware of the connection between the personal injury and Savills' act or omission at the expiration of the relevant limitation period.
Although those findings are sufficient to refuse the relief sought by Mrs Mills, I ought to make some findings in respect of the other provisions of the Limitation Act.
I turn first to the second question under s 60I, which is whether I am satisfied that the application is made within three years after Mrs Mills became aware or ought to have become aware of the connection between her personal injury and Glad's or Savills' act or omission. The approach to the interpretation of that provision has been authoritatively determined by the Court of Appeal in Commonwealth of Australia v Smith [2005] NSWCA 478. Santow JA delivered a judgment in which Handley JA substantially agreed. At [102] Santow JA said as follows:

" Thus s 60I(1)(b) imports for the first time a notion of constructive awareness or knowledge ."

His Honour had observed in the previous paragraph that s 60I(1)(a) was concerned with actual knowledge. 38. Returning to [102], after reference to another authority his Honour observed:

" The fact that the plaintiff had the means of knowledge at his disposal would be a highly relevant matter for consideration, in deciding whether the application succeeded or failed under s 60I(1)(b). "

Smith's case was a case concerning the accident between the HMAS Melbourne and HMAS Voyager on 16 February 1964. Santow JA observed, relevant to his earlier comment about the means of knowledge, that in that case there was a question about whether the plaintiff had the capacity to have recourse to the means of knowledge unimpaired by an adverse mental condition. There was also in that case evidence that the plaintiff had been instructed not to talk about the matter by his superiors. There was also evidence that the plaintiff for some time lacked sufficient insight to utilise the means of knowledge at his disposal. In that context I observe that, in my opinion, there is no evidence that Mrs Mills suffered any relevant inhibitions to her means of knowledge about the role of the cleaners and the operators of the mall so far as her accident was concerned. 39. Returning to Smith's case, Santow JA went on to observe at [103]: " The capacity to take action to utilise a means of knowledge, while based on what is reasonable in the circumstances, must be judged by reference to the actual qualities of the person concerned, rather than by reference to the qualities of the hypothetical reasonable man. " His Honour referred to other authority for the proposition:

" What a person 'ought' to know or be aware of for the purposes of s 60I(1)(b) must necessarily take account of the circumstances of the particular applicant. "

His Honour then referred to an earlier Court of Appeal decision in Telstra Corporation v Rea [2002] NSWCA 49 from which he quoted from the judgment of Foster AJA. His Honour adopted the following passage from Foster AJA's judgment: " The question for the learned primary judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the document. " 40. Basten JA delivered a dissenting judgment in Smith's case. But in my opinion his observation about the operation of s 60I(1)(b) is not inconsistent with the majority view. At [187] Basten JA said that the

" circumstances and characteristics of an applicant may well explain why he or she did not ask a question or seek advice at a particular time. The term 'ought' requires more than explanation - it requires justification. That additional element requires a standard, not a mere description of the characteristics and circumstances of the individual which led to the failure to inquire. "

Based upon those authorities I turn to making some findings in this case. Insofar as it is necessary to assess the means of knowledge at Mrs Mills' disposal and her own personal characteristics, I find that she was proactive in pursuing her claim. She kept contemporaneous notes in detail. She approached the centre management more than once. And she saw some solicitors. Indeed she retained one firm and then another firm later on. She was part of an arrangement to have photographs taken and to observe other occasions which had the potential to produce an accident similar to hers. There is evidence referred to in crossexamination of her involvement in other litigation. She had a dispute with her neighbour about tree roots and she had also seen solicitors about a worker's compensation claim. Mr Grant, in his written submissions on behalf of Glad Cleaning, refers to the crossexamination over T277 - 286 concerning the District Court proceedings against her neighbour. I accept his submission that those pages reveal that:

" She is continually paying legal fees for that case and she is considering settlement offers from the plaintiff, and rejecting them and preparing documentation to substantiate a counter-offer. The transcript also demonstrates that she is unhappy with her legal team who wanted to settle for what she considers a paltry amount. She is aware of subpoenas on her experts, agreements between the parties about the contents of experts' reports, familiar with specific contents of experts' reports ".

In my opinion, based upon Mrs Mills' personal characteristics exhibited in her appropriate and understandable proactive interest in pursuing her claim, including appropriate inquiries of potential defendants and solicitors and undertaking her own investigations in the form of observations and photographs and her own experience in other litigation, I am not satisfied that this application has been made within three years after she became aware or ought to have become aware of the connection between the personal injury and the act or omission of either Glad or Savills.
I turn now to the question posed by s 60G of the Limitation Act . I may, if I decide that it is just and reasonable to do so, order that the limitation period for the cause of action be extended. I do not propose to make that order. Indeed, I cannot make the order because of the findings which I have made under s 60I. But I propose to make some findings in respect of the question raised by s 60G.
Once again the onus is on Mrs Mills to satisfy me under the section. See State of New South Wales v Young [2004] NSWCA 204 at [23] (Handley JA with whom Cripps JA agreed).
There is a case determined by the High Court of Australia on appeal from the Supreme Court of Queensland named Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. It concerned a corresponding provision in Queensland about the extension of a limitation period. It contains important observations about the way to approach such a statute.
There is a preliminary question about whether that authority is relevant to me in determining this question under the New South Wales statute. That preliminary question was resolved by the Court of Appeal in Commonwealth of Australia v Smith once again by Santow JA who adopted the following proposition from another decision of the New South Wales Court of appeal:

" The effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. " Santow JA went on at [128]:

" Significant prejudice' means 'such prejudice as would make the chances of a fair trial unlikely' ."

I adopt these observations made by McHugh J in Brisbane South: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.

Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."

His Honour's reference to rationales is to a discussion by his Honour commencing on the previous pages about four broad rationales for the enactment of limitation periods. In summary the first is that relevant evidence is likely to be lost as time goes by. The second is that it is oppressive to a defendant to allow an action to be brought long after the circumstances have passed, which gave rise to it. The third is that people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. The fourth is that the public interest requires that disputes be settled as quickly as possible.
His Honour went on to say at 555: " Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possib ility of significant prejudice ."
As Santow JA observed at [123] of Commonwealth of Australia v Smith , " a defendant suffers presumptive prejudice where an extension of the limitation period is granted. " As Mr Gruzman pointed out in his written submissions, it is now approximately five and a half years since the accident and the trial would be unlikely to commence before 2009, being six years from the accident date. There is therefore presumptive prejudice in my opinion.
There are three other relevant factors. The first is a question of whether Mrs Mills may have a cause of action against any former solicitors. The relevance of that question was authoritatively determined by the Court of Appeal in Andresakis & Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507. McColl JA wrote a judgment in which Giles and Hodgson JJA agreed. At [92] her Honour said, after an extensive discussion of the authorities, the following: " Accordingly it is correct to say that the primary judge erred in dismissing the prospect that the respondent had a cause of action against its former solicitors as 'an impermissible consideration'. It was a relevant consideration, but one whose weight depended on the circumstances. The authorities to which I have referred have accorded the prospect of a secondary cause of action little weight, partly because of the difficulty of evaluating the prospects of success. " I too accord, in Mrs Mills' favour, little weight to any alternative cause of action which she may have against any of her former solicitors.
The second factor to refer to briefly is an observation made by the High Court of Australia in Harris v Commercial Minerals Limited (1996) 186 CLR 1. The court delivered a joint judgment. The case concerned the Limitation Act 1969 (NSW). After observing that s 60I provides a gateway to s 60G, their Honours went on to say about s 60G that "under that provision, questions of what the applicant knew or ought to have known will often play a critical role in determining whether it is just and reasonable to extend the limitation period. It may not be just and reasonable, for example, to extend a limitation period if before the expiration of the period the applicant knew or ought to have expected most of the consequences of an injury. " Although the last sentence was an observation about other provisions in s 60I(1)(a), it is in my opinion relevant in this case that Mrs Mill knew and ought to have known of the connection between her personal injury and the acts or omissions of Glad Cleaning and Savills. That is a factor which I take into account against her in the exercise at my discretion under s 60G.
Finally there is the important question of actual prejudice. Actual prejudice in this case is the subject of evidence in the form of exhibit 1 which is an affidavit of Matthew Smith sworn on 30 March 2007. He is a paralegal employed by Lee & Lyons Lawyers, the solicitors retained for Glad Cleaning Services Pty Ltd.
In that affidavit Mr Smtih records how he spoke to a representative of Glad Cleaning Pty Ltd on 14 December 2006 in order to identify and locate the cleaner on duty at the time of the relevant accident. That representative of Glad Cleaning phoned back on 19 December 2006 and told Mr Smith that the cleaner on duty at the relevant time was no longer employed by Glad Cleaning Services Pty Ltd and, just before Christmas 2003, had returned to the Philippines. Mr Smith was also told that another employee of Glad Cleaning Services Pty Ltd whose job was described as the " roaming supervisor " was also no longer employed by Glad Cleaning Services Pty Ltd. Both employees were oncall and were paid on a cash basis. There was no record of their second names. The representative of Glad expressed the belief, based upon information, that both had gone overseas. The representative said that he had no records in respect of either employee.
Mr Gruzman on behalf of Savills makes the following submissions which based upon the evidence I accept. He submits that the evidence leads to an inevitable finding that the cleaners who were employed by Glad Cleaning Services on the day of the alleged injury cannot be located. I accept that submission based upon exhibit 1. He observes, which is the case, that the fact of the missing cleaners was never challenged on behalf of the plaintiff. He submits that the cleaners would be critical witnesses for all defendants in this case. I accept that submission.
If the issue of the presence of ice-cream on the floor at the time of Mrs Mills' accident is to be litigated, then the prospective defendants, in order to be accorded a fair trial, obviously need to be in a position to have access to relevant witnesses who may have been responsible for the duties which the plaintiff alleges were not performed. This may be relevant not only to the outcome of a fully defended hearing but to a defendant's ability to negotiate an appropriate settlement. As Mr Gruzman said: " The unavailability of such critical witnesses will prejudice the respondent Savills in the running of their case because their liability is affected by the actions of the cleaners ."

I would make the same finding in respect of Glad Cleaning. In my opinion, both Savills and Glad Cleaning have suffered actual prejudice.
In my opinion, because of the presumptive prejudice experienced by both Glad Cleaning and Savills, because of the actual prejudice which they experienced and because Mrs Mills knew or ought to have known of the connection between her injury and the acts or omissions of both Glad and Savills, I do not regard it as just and reasonable to order that the limitation period of the cause of action be extended.
I finally turn to some observations about Mrs Mills as a witness. Mr Grant submitted that I should find that she is an unreliable witness and that it was misleading for her to give certain evidence which he listed. I did not get the impression from Mrs Mills as a witness that she was deliberately trying to conceal things from the court. I acknowledge that she had overlooked or forgotten a number of things which are listed by Mr Grant in his written submissions and I think it inevitable that that must have an impact on her reliability but I do not regard them as impacting on her credit. It is a little surprising that she had forgotten seeing the first solicitor and being told of the limitation period. But, as I say, my own observation of her was not of a witness who was attempting to mislead the court deliberately, nor of a witness who was dishonest. She appeared to me to be genuinely making an effort to recollect what had happened. At the same time I regard her as a shrewd person who was well aware of the nature of litigation but, as I say, I do not find that she was deliberately attempting to mislead the court.
Accordingly, for the reasons that I have just given, in respect of the notice of motion filed on 1 June 2007 by Mrs Mills, I refuse the relief sought in paras 1 and 2 of that notice of motion.

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