Stewart v Campbelltown City Council

Mr L T Grey (Plaintiff) COUNSEL : Mr D McGovern (Defendant) Lamond Howard & Associates (Plaintiff) SOLICITORS : Phillips Fox (Defendant) CATCHWORDS : Extension of time - ss 60C & E Limitation Act LEGISLATION CITED : Limitation Act 1969 (NSW) - ss 60C & E The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Holt v Wynter [2000] 49 NSWLR 148 McLean v Sydney Water Corporation [2001] NSWCA 122 CASES CITED : Szerdahelyi v Bailey; Ortado v Bailey; Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997) Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA unreported, 24 April 1998) Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995) Romeo v Conservation Commission of the Northern Territory [1998] HCA5; (1998) 192 CLR 431 Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 DECISION : (1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 30 March 1997 up to and including 24 October 2001; (2) The plaintiff is to pay the defendant's costs as agreed or assessed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20802/2001 - REX ANTHONY STEWART v CAMPBELLTOWN CITY COUNCIL

JUDGMENT (Extension of time - ss 60C & E Limitation Act) 1 MASTER: By notice of motion filed 24 October 2001 the plaintiff seeks an order granting leave within which to commence proceedings pursuant to ss 60C & E of the Limitation Act 1969 (NSW). The plaintiff relied on his affidavits sworn 20 November 2001 and the affidavit of his solicitor of Mark David Howard sworn 28 November 2001. The defendant did not rely on any affidavit evidence. 2 By statement of claim filed 27 September 2001, the plaintiff pleads that the defendant Campbelltown City Council, was the owner/occupier of a walking trail on Smith Creek Reserve, Leumeah. It is alleged that the defendant at all material times owed a duty to the plaintiff to ensure all reasonable precautions for the safety of the plaintiff while he was on the defendant's land so as not to expose him to any risk of damage or injury of which it knew or ought to have known. The plaintiff sues in negligence. 3 The particulars of the alleged negligence are that the defendant, firstly, placed the plaintiff in a position of peril that could reasonably have been avoided; secondly, could well see and should have foreseen that a user of the reserve could fall from the cliff and sustain injuries as a result of failure to warn or erect barricades; thirdly, failed to warn users of the reserve by means of barricades, signs or other warnings of the danger; fourthly, failed to ensure that the area at the top of the cliff was adequately maintained and cleared of shrubs and overgrowth so that a user of Smith Creek Reserve could see the presence of a cliff; and fifthly, failed to properly illuminate the walking trail and that area leading to and including the cliff. 4 For the purposes of this application I find the following facts. In arriving at these findings I observed the plaintiff both giving evidence and being cross examined and I formed the opinion he gave truthful evidence.

(1) The plaintiff was born on 13 May 1948 and is 51 years of age.

(2) On 30 March 1997 the plaintiff attended the Leumeah Inn at Leumeah with his son, Thad Stewart, and another friend to celebrate the birth of a friend's child.

(3) Directly opposite the Inn is a dirt road approximately three metres wide. The plaintiff had not used this road before but had observed the reserve when driving past. He knew that people used it as a shortcut if they wanted to get to the back streets. It was also a place where people walked their dogs and walked recreationally. At night there were no street lights illuminating at the entrance of the reserve.

(4) From 6.00 pm until 2.00 am on 31 March 1997 the plaintiff remained at the Leumeah Inn. During that time he consumed approximately ten schooners of light beer and approximately six mixed drinks. At 2.00 am the plaintiff left the Inn with his son and proceeded to walk home to his son's house, a distance of approximately 1 kilometre.

(5) While walking down the dirt road the plaintiff and his son were separated. His son was walking some distance behind him. The plaintiff followed the dirt road for between 200 to 300 metres. There is a gap between the houses which leads to the laneway which gives access to the son's house. As the plaintiff was walking towards an area where he could see lights coming from houses he realised that he could not find the adjoining laneway so he doubled back. As he was doing so he fell off the edge of a cliff. The cliff was approximately 10 metres high. The cliff itself was hidden by low growing grasses and shrubs. There were no warning signs or barricades placed either at the entrance to the reserve on the dirt road or at the junction between the dirt road and the path which led to the cliff.

(6) The plaintiff remembers calling out for help and being found by his son who calmed him down and ran to get some help. An ambulance arrived and he was conveyed to Liverpool hospital where he was placed in the intensive care ward. The plaintiff is a diabetic and his blood sugar had been affected by the shock of the accident. A number of bones were shattered in his left leg and all the ligaments had been shattered. The plaintiff was in and out of consciousness and coherence for a number of weeks as he was being given large doses of pethidine.

(7) At Liverpool hospital the plaintiff received treatment including debriding (the removal of the dead tissue from around the wound). The plaintiff had pins inserted into his leg in the hope that the bones would fuse. He was in hospital for approximately three months. Towards the end of the three month period a decision was made to amputate his leg six inches below his knee.

(8) The plaintiff continued to attend the hospital, approximately twice weekly, as an out patient to receive rehabilitation. The plaintiff was fitted with a prosthesis and was unable to work for a period of approximately eleven months.

(9) In February 1998 the plaintiff returned to work as a plant operator with Wombat Supply Company Pty Ltd which later became Clonlara Holdings. His employer made some adjustments to the workplace to enable the plaintiff to continue working. The plaintiff remained there for approximately ten months until the company went out of business. He was unemployed for a period of approximately one month.

(10) In about January 1999, the plaintiff obtained a job with Bombora Constructions at Catherine Fields driving bobcats on a casual basis. He had a number of months' work but in January 2000 he was no longer required. He has not worked since. The plaintiff has tried to find other employment and has applied for a number of jobs. Once employers realise that he has a prosthetic leg, he has difficulty obtaining employment. He is about to commence a computer course at TAFE with the hope of obtaining some form of employment.

(11) As a result of the accident the plaintiff is frequently in pain. The part of his remaining leg often throbs and the end of it blisters. He has had to attend hospital on a number of occasions as a result of the pain.

(12) At the time of the accident the plaintiff did not realise that he would be entitled to compensation. He thought that the accident was his own fault. He did not make enquiries in regard to compensation because once he was discharged from hospital his priority was to return to work and to get on with life. It was some time after his last period of employment that it dawned on the plaintiff that he may not be able to find employment due to employers' reluctance to employ him upon being informed of his prothesis.

(13) From about March 2001 the plaintiff had observed some advertisements on television concerning Stacks solicitors. In June 2001 the plaintiff telephoned Stacks the Law Firm, and says that he was advised by the receptionist that he had only three years within which to commence proceedings.

(14) On 25 June 2001 the plaintiff contacted Lamond Howard & Associates who has an office at Campbelltown and made an appointment. On 2 July 2001 the plaintiff provided instructions. On 4 July 2001 the plaintiff briefed counsel. The plaintiff's solicitor exchanged correspondence with the Council.

(15) On 27 August 2001 Campbelltown City Council indicated that it owned the land where the accident occurred.

(16) On 27 September 2001 the statement of claim was filed.

(17) On 24 October 2001 the notice of motion was filed seeking an extension of the limitation period.

The Law 5 The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the defendant. Section 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides: "Ordinary action (including surviving action) 60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application 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, not exceeding 5 years, as it determines." 6 Section 60E provides: "Matters to be considered by the court

60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant's act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff's injury or loss." 7 In relation to ss 60C and 60E of the Act Mason P in The Council of City of Sydney v Zegarac (1998) 43 NSWLR 195 referred to propositions which were uncontroversial. They are:

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is "just and reasonable" to make the order for extension.

(3) In exercising the discretion, the court is required "to have regard to all the circumstances of the case" (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) "to the extent that they are relevant to the circumstances of the case".

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General's second reading speech that are set out in the order judgments, and which McHugh J discusses in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. 8 Justice Powell in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA's further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly, although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant. 9 The principles concerning prejudice have recently been considered in Holt v Wynter [2000] 49 NSWLR 148, the Court of Appeal (per Sheller JA with whom Meagher, Handley JJA and Brownie AJA agreed) at p 147 para 119 stated that the effect of the High Court decision in Taylor's case 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. However, fairness is a matter of degree. The concept of a fair trial is a relative one. To be fair, it need not be ideal - see McLean v Sydney Water Corporation [2001] NSWCA 122. 10 I turn now to consider s 60E.

The length and reasons for delay - s 60E(a) 11 The cause of action accrued on 31 March 1997. The limitation period expired on 31 March 2000. The application seeking the extension of time was filed on 24 October 2001, ie. 19 months out of time. I accept that with the passing of time, there will be presumptive prejudice. The defendant did not file any evidence to demonstrate actual prejudice. 12 Prior to the plaintiff's accident he had never sought legal advice nor had he ever appeared in court. 13 During the plaintiff's recovery phase he considered that the accident was his fault. His primary focus was to recover and get back to work. In February 1998, the plaintiff returned to work and continued in employment until January 2000. It was sometime after January 2000 that it dawned on him that he may not obtain employment. That realisation caused him to seek legal advice. 14 The plaintiff was not aware that there was a limitation period in relation to this matter until he contacted Stacks the Law Firm in June 2001. He was advised at that stage that he had only three years to commence proceedings. He then contacted Lamond Howard & Associates on or about 25 June 2001 and made an appointment. The plaintiff consulted them on 2 July 2001 and provided instructions and since then has acted expeditiously.

Extent to which delay caused prejudice - s 60E(b) 15 There is no evidence that had the plaintiff commenced the proceedings within the limitation period that any evidence that would then have been available has been lost.

The time at which the injury became known to plaintiff - s 60E(c) 16 Immediately after the accident the plaintiff would have become aware that he had suffered serious injury to his left leg. About three months after the accident the plaintiff would have become aware that he was to undergo an amputation of his left leg below the knee and he would require a prosthesis. At the time the plaintiff would have become aware that he had suffered a permanent and serious injury.

Time at which nature and extent of the injury became known to plaintiff; time at which plaintiff became aware of connection between injury and defendant's act or omission and extent of plaintiff's injury or loss s 60E(d), (e) and (h) 17 As previously stated the plaintiff would have realised that he suffered a serious and permanent injury three months after the accident. However, he was able to return to his previous employment for about a year and then obtained another job. He would not have appreciated that the injury may have rendered him unemployable until late 2000 or early 2001. It was then he set about obtaining legal advice. He did not know that he may have a case against the defendant until his solicitor told him.

Conduct of defendant which induced plaintiff to delay bringing the action - s 60E(f) 18 There is no conduct by the defendant which induced the plaintiff to delay brining action.

Steps taken by plaintiff to obtain medical, legal or other expert advice - s 60E(g) 19 The plaintiff's solicitor has subpoenaed the records relating to the plaintiff from the ambulance and Liverpool hospital. Those documents have been produced to the court. No medico-legal experts' reports have been obtained. However, the major injury is uncontroversial. 20 The plaintiff has furnished photographs of the accident site some of which were taken within days of the accident (Exs A and B). 21 I turn to consider whether the plaintiff has a real case to advance. The applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC unreported, Badgery-Parker J, 1 May 1997); Zegarac and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA unreported, 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA unreported, 6 November 1995). 22 In Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431 a young woman fell 6½ metres from the top of a cliff on to a beach in a nature reserve managed by the Commission and suffered serious injuries. She was rendered a paraplegic. The fall occurred at night and while she was intoxicated after drinking rum. There was a car park surrounded by a low log fence about 3 metres from the edge of the cliff. Between the car park and the cliff edge was open space covered with low vegetation. Romeo and her friend, Ms Hay, fell at a point where there was a gap in the vegetation. There was no fence or other barrier at the edge of the cliff. The presence of the cliff was obvious and Romeo had prior knowledge of the existence and nature of the cliff edge. The area was one of natural beauty. The cliff was about 2 kilometres long. 23 In Romeo it was held that the Commission was under a duty to persons entering the reserve to take reasonable care to avoid reasonably foreseeable risks of injury and that the risk of someone falling off the cliff was reasonably foreseeable, but that the Commission was not in breach of its duty of care by failing to erect a fence or other barrier at the edge of the cliff (per Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 24 The plaintiff submitted that the facts in this case can be distinguished from Romeo. In Romeo, the plaintiff knew the area well, she knew of the existence of the cliffs and that they were of natural beauty. The cliffs were not hidden nor did they constitute a trap. In Romeo it was proposed by the plaintiff that as a response to the risk, it would have been necessary to erect a barrier 8 kilometres in length. In this case, the plaintiff had never been in the reserve and did not know of the existence the cliff. There was a dirt road that lead towards the cliff. The plaintiff's evidence is that the cliff was hidden by shrubbery and constituted a trap. The issue of whether the plaintiff would have been in a position to read any warning signs, had they been erected, is one that would be best determined at trial. The facts in Secretary to the Department of Natural Resources & Energy v Harper (2000) 1 VR 133 at 151, 154 while interesting, differ from those in the case before me. It is my view that the plaintiff has a real case to advance.

25 It is my view that the defendant will not suffer significant prejudice. It will obtain a fair trial. I have taken the matters referred to in s 60E(a) to (h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under s 60C and E against the defendant. 26 Costs are discretionary. In Wynter, Sheller JA stated that in relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent's opposition was wholly unreasonable. The defendant's opposition was not wholly unreasonable. The plaintiff should pay the defendant's costs. 27 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 30 March 1997 up to and including 24 October 2001.

(2) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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