Walters v Cross Country Fuels Pty Limited

Evidence Act 1995 LEGISLATION CITED: Limitation Act 1969 Workers Compensation Act 1987

Application des Gaz SA v Falks Veritas Ltd [1974] Ch 381 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364

PARTIES: Robyn Anne Walters - Applicant Cross Country Fuels Pty Limited (formerly trading as Bent Street Self Service) - Respondent

COUNSEL: SM Kettle - Applicant A Hourigan - Respondent

SOLICITORS: Stacks/Goudkamp, Sydney - Applicant Shearman Lawyers, Sydney - Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40130/08 DC 1617/07

ALLSOP P CAMPBELL JA HANDLEY AJA

MONDAY 2 FEBRUARY 2009 ROBYN ANNE WALTERS v CROSS COUNTRY FUELS PTY LIMITED (FORMERLY TRADING AS BENT STREET SELF SERVICE) Ex Tempore Judgment 1 ALLSOP P: I will ask Campbell JA to deliver the first judgment. 2 CAMPBELL JA: This is an application for leave to appeal against a decision of his Honour Judge Garling given on 21 February 2008 in which his Honour rejected an application by the Applicant to extend the limitation period for bringing an action against the Respondent. 3 In March 2001 the Respondent operated a Shell service station in Grafton. On the morning of 29 March 2001 the Applicant slipped and fell on the forecourt of the service station. She suffered various injuries including an injury to her right hand that has still not satisfactorily resolved, despite several operations. 4 The limitation period for any action in which she alleged negligence of the Respondent as a cause of her injuries expired on 29 March 2004. She began proceedings against the Respondent by filing a Statement of Claim on 6 February 2007. She then filed a summons on 23 April 2007 seeking to have the limitation period extended to 7 February 2007. 5 The Applicant says that she tripped over a raised section of concrete in the forecourt. There are photographs which the Applicant says she and her daughter took a couple of days after the fall which show a cracked area of slab. The Applicant gives evidence of complaining later on the day of the accident to a Ms Cathy McGrath, who was managing the service station, and says that Ms McGrath said to her, "I have already written a couple of times about the cracks but nothing has been done". 6 So far as the evidence discloses there was only one eyewitness to the accident, a Mr Andrew Fuller. Soon after the accident he made a written statement concerning it. That statement was: "At about 6.05am on the [blank] I was at Shell Bent St Grafton getting fuel before work. Just as I was putting the fuel cap on the car I knowest [sic] a white car came in the driveway extremely quickly. As I was about to get into the car I saw the lady get out of the car. She seemed to be in a hurry. She was about 4 metres away from her car and fell over. I asked if she was OK. She said she was fine. She looked back to see what she fell over but their [sic] was nothing but flat cement. I looked and wonders why she fell over but their [sic] was nothing to fall over or trip. I put it down to she was in a hurry and tripped out her own feet." 7 Mr Fuller's statement also included a freehand sketch of the forecourt area, showing the location of petrol bowsers, where he was, the course that the Applicant took, where she tripped, and the location of the Shell shop. His statement says, "a rough copy, I could show you exactly where she stopped and where she fell". 8 Ms Kim Campbell, an employee at the service station, was in the immediate vicinity at the time of the accident but did not actually see it. She provided information that was included in a written report that was prepared on the day of the accident or shortly after. In that report it is stated that her attention was attracted when someone called out. The report continues: "When Kim turned around she saw a woman (Mrs Walters) on all fours who said she had just fallen. Kim asked the woman if she was okay and she replied "yes I think so". The woman then followed Kim into the shop to buy a paper but then realised she had no money as it had apparently fallen on the ground when she fell. The customer retrieved her money ($2) from where she was seen to fall on the forecourt, paid for the paper and left the site. Before she left Kim again asked the customer if she was all right. Customer replied that it was just her hand that was a bit sore. After the customer left Kim checked the area where the customer is believed to have fallen and observed that this was the flattest part of the forecourt. Approx 3 hours later the customer returned holding her side and spoke to Cathy McGrath (CSL). She advised Cathy that she had been sent home from work and was on her way to see a doctor. In the process of compiling a report, Cathy asked the customer to show her where she had fallen. The customer indicated a cracked/sunken area some two metres from where she is believed to have fallen." 9 So far the Respondent's solicitor has not been able to locate Mr Fuller. The adequacy and significance of the efforts of the Respondent's solicitors to locate Mr Fuller will be considered later. Ms Campbell and Ms McGrath were both located by the Respondent's solicitor who spoke to them in June 2007. Ms Campbell says she cannot remember the Plaintiff saying anything and cannot remember anything about the incident apart from what is in some notes that she gave to the manager. Ms McGrath says that her memory "is now quite vague as it happened so long ago". 10 The Plaintiff went to see a solicitor, Mr Harris of Burridge Harris & Flynn, on 6 April 2001. On that day Mr Harris wrote to the manager of the Shell service station in question, referring to his client's injuries, saying that the service station was responsible for those injuries, and suggesting that the letter be passed on to its insurers. So far as Mr Harris' file discloses, he did nothing to follow up that initial letter. 11 Because the Applicant was injured when she was on her way to work, she had an entitlement to workers' compensation. In March 2003 her employer's workers' compensation insurer, QBE, wrote to the Applicant care of her solicitor. In that letter QBE made an offer of lump sum compensation, foreshadowed that it would make a claim under s 151Z of the Workers Compensation Act 1987 against the service station and asked for advice about the name and address of the personal liability insurer of the service station. QBE sent the Applicant a follow-up letter on 5 May 2003, again asking for details of the personal liability insurer of the service station. 12 On 13 May 2003, at the same time as he wrote back sending documentation relating to settlement of the lump sum claim, the Applicant's solicitor wrote to QBE. "In light of recent Court of Appeal Decisions relating to 'trip and fall' accidents involving pedestrians, it has been decided not to pursue the claim against the service station. We only took the matter as far as writing a letter of demand to the service station, however, no response was ever received and we are not aware of the identity of the public liability insurer." 13 In July 2006 after the Plaintiff had changed solicitors, the new solicitors wrote a letter of demand to the then manager of the service station. By that time the Respondent was no longer operating the service station. Indeed the Respondent had ceased to operate the service station in late 2001. It is not clear whether or if so when that letter came to the Respondent's attention. 14 After the Respondent ceased to operate the service station various documents that it had relating to the service station were stored in a container at the Shell depot in Newcastle. Those documents were damaged and rendered illegible by flooding that occurred in June 2007. The documents had been accessible and in good condition before the flooding. The documents in the container would have included the franchise agreement with Shell under which the Respondent operated the service station. There was a site cleanliness and safety assessment system that applied to the service station and under it any significant repairs of a capital nature or beyond the scope of fair wear and tear were reported to Shell. A subpoena to Shell has not revealed any documents relating to such reports. Other evidence in the case did not go so far as to say that any such report would be in writing or that a copy of it would have been in the container before its inundation, nor does the evidence say that the safety assessment system produced documents that in the ordinary course would have been in the container. 15 Any extension of the limitation period in the present case would be made pursuant to s 60C of the Limitation Act 1969 and within the confines of s 60E of that Act. The learned primary judge was not satisfied that it was just and reasonable to extend the limitation period. As he was required to do, he considered the various factors listed in s 60E(1), but the determinative matters relating to his ultimate conclusion concerned prejudice and delay. 16 The Applicant submits that the judge erred in four respects. I will consider them in a different order to that in which the Applicant made her submissions. The first is that the trial judge wrongly concluded that Mr Fuller was not available. The second is that he came to a wrong conclusion concerning the prejudice that the Respondent would suffer in consequence of the delay. The third is that he wrongly took into account destruction of documents that were in the container when there was a legal reason why destruction of those documents was irrelevant. The fourth is that the judge's decision was affected by a material error of fact.

Prejudice 17 The judge found that the Respondent was quite significantly prejudiced by the delay. That prejudice arose first from the presumptive prejudice that arises whenever there are extensive delays. As well he found there was actual prejudice arising from the absence of Mr Fuller and the present vagueness of memory of Ms McGrath. While the judge referred to the destruction of the records he said it was difficult to know how important that was. 18 The judge made a finding that the defendant cannot find Mr Fuller. The Applicant says that the evidence does not support a finding that Mr Fuller cannot be located. This topic needs to be considered bearing in mind that the legal onus of showing that extension of a limitation period would be just and reasonable is on the applicant for extension, though there can be shifting onuses of adducing evidence. 19 The evidence concerning efforts to find Mr Fuller is that Mr Fuller gave his address and phone number in the written statement that he provided on the day of, or soon after, the accident itself. The solicitor for the Respondent attempted to make contact with Mr Fuller on the phone numbers he provided. The solicitor was told that those numbers were no longer connected. The solicitor then enquired with Telstra as to whether there was anyone called "A Fuller" in Grafton. Those enquiries revealed that there was indeed someone called "A Fuller" who was listed at [street name] South Grafton, and a number was provided for that person. When the solicitor telephoned that number there was a recorded voice saying, "This is the message bank of a private number" followed by a long beep. The solicitor spoke and left a message, but has not received any reply to it. The solicitor has also conducted electoral commission searches and has been unable to identify any individual by the name of Andrew Fuller in the Grafton area. 20 I can see no error in the judge's conclusion that the Defendant cannot find Mr Fuller. The solicitor made reasonable efforts to find him without success. While it is possible to make more extensive efforts to find a missing witness, like contacting the police or hiring investigators, once reasonable means of finding a witness have proved unsuccessful the onus of showing that more extensive efforts would have unearthed the witness shifts to the Applicant. The Applicant has not discharged that onus. 21 Next the Applicant submits that the judge has erred in finding that there would be significant prejudice arising from the absence of Mr Fuller. The judge found that Mr Fuller's statement could be tendered even though he was unavailable, and that finding of the judge has not been questioned for the purpose of the present application. 22 I do not accept the submission that the judge erred in finding that there would be significant prejudice arising from the absence of Mr Fuller. The circumstances in which the Plaintiff fell, and in particular whether the place that she fell was the place where the crack existed in the forecourt, would be a central issue at any trial. I do not accept that, concerning a disputed question of fact such as that, a written statement tendered in evidence is likely to be anything like an adequate substitute for a live witness. The Evidence Act 1995 allows a statement to be admitted into evidence in such circumstances because having the statement in evidence is likely to be less productive of injustice than not having the statement admitted at all, but that does not mean that it is anything like an adequate substitute for a live witness. 23 Counsel for the Applicant correctly points out that it would be possible to put to the Applicant the version of events contained in Mr Fuller's statement. However the trial judge would be deprived of the opportunity to form a view about the relative reliability of the Applicant and Mr Fuller that would come from seeing them both giving their evidence in the flesh. To that needs to be added the vagueness of memory of Ms McGrath and the decline in quality of testimony that comes from long delay. I bear in mind that whether or not there is significant prejudice is not to be judged according to standards of what would be perfect or ideal conditions for running a trial (Holt v Wynter [2000] NSWCA 143 at [79]; (2000) 49 NSWLR 128 at 142 per Priestley JA, an aspect of Priestley JA's judgment agreed in by all of the judges in that case). In the present case I see no error in the judge's conclusion that the Respondent has suffered significant prejudice as a consequence of the delay. 24 In oral submissions today the Applicant relied on this court's decision in Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 364 at [38]. In that case the death of a relevant witness was held not to give rise to relevant prejudice arising from delay because it "was there from the outset." However, that finding is one that arose from a peculiarity of the facts of the case, namely that the dead potential witness was killed in the same accident as gave rise to the applicant's cause of action against the respondent, and hence the prejudice arising from the potential witness being dead had indeed been there from the outset and had not arisen from the delay. That is not the present case.

Error in Taking Destruction of Documents into Account 25 The Applicant submits that the judge was wrong to take destruction of the documents into account at all because the proceedings had already commenced at the time the documents were destroyed. Even accepting without deciding that the judge took the destruction of documents into account in a way that ultimately contributed to his decision, the Applicant's submission is wrong in principle. The question of whether there is a prejudice of a kind that would make it unjust to extend the limitation period needs to be decided as at the time of the application for extension of the limitation period: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548; Holt v Wynter at 143.

Meaning of "the time of the application" 26 There may be room for argument about whether the time of the application for extension of the limitation period means the time that the application is filed, or the time that it is determined. In the present case there is a theoretical possibility that the difference between those two alternative views of the law could make a difference, because the documents in question were still in existence at the time the application for extension was filed but not by the time the judge actually made the decision whether to extend the time. The written submissions in the present case did not deal with these two possible views of the law, and counsel were not in a position to deal with the matter when it was raised orally. 27 As at present advised I would incline to the view that it is the situation at the time the judge makes the decision that matters. It is common for discretionary decisions of courts to be made by reference to the circumstances that exist at the date of the decision, not at some prior date: Application des Gaz SA v Falks Veritas Ltd [1974] Ch 381 at 399. Further, it is not as though at the time of filing the process seeking extension an applicant for extension of time had any sort of accrued right, which is part of the usual rationale for determining common law rights as at the date of the initiating process. At the time the proceedings were commenced, the limitation period had expired, and until such time as the court might make an order for extension of the limitation period, the Respondent had an unanswerable defence. The question for the judge in deciding whether to grant extension involved deciding whether it was just and reasonable that that unanswerable defence be taken away. As it is only by the pronouncing of an order granting an extension that it would be taken away, it seems appropriate that the decision whether it is just and reasonable to extend the limitation period should be made as at the date of the judgment. Of course, on that view of the matter, it would be a relevant circumstance of the case that the proceedings had commenced before the records were destroyed and it would be a further relevant circumstance of the case that the summons seeking extension of time had been filed before the records were destroyed. 28 However, it is not necessary to come to a concluded view on which of those views of the law is correct for the purpose of the present application. That is because it has been decided by a bench of five judges in this Court that an application for extension of time of the limitation legislation should be refused if the effect of granting an extension would result in significant prejudice to the potential defendant: Holt v Wynter. When the judge was right in his conclusion about significant prejudice, the outcome of any argument about the time at which prejudice is to be assessed would not affect the outcome of any appeal if leave were to be granted.

Material Error of Fact? 29 The Applicant submits that the trial judge erred in finding that on 13 May 2003 the Plaintiff's then solicitors wrote to the Defendant saying they would not pursue a claim. I agree that the judge made a finding to that effect, and that the judge was mistaken to do so. The letter of 13 May 2003 was written to QBE and there is no evidence that it came to the attention of anyone on behalf of the Respondent. 30 However, that error on the part of the judge has no effect in my view on the correctness of his ultimate conclusion. It is not a matter that the judge relied on as part of the prejudice that the Respondent would sustain if the extension were granted. I recognise that the judge accepted that the Applicant's solicitors did not advise her about the existence of any type of limitation period. Hence it could not be said that the present was a case where the Plaintiff personally had made a deliberate decision to let a limitation period expire: cf Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207. But it was still the case that apart from the letter before action that the Applicant's solicitor wrote on 6 April 2001, there was no communication from the Applicant to anyone on behalf of the Respondent between 6 April 2001 and 22 July 2006. The Respondent would have been well justified in taking the view that no claim would be proceeded with. 31 As well, the judge found that the Applicant accepted advice given to her by her first solicitor that it would be better to proceed by obtaining workers' compensation benefits. That the Applicant followed a course of pursuing workers' compensation benefits and taking no action to advance any claim she had against the Respondent until the limitation period had expired can itself be relevant to whether it is just and reasonable to extend the limitation period. It is, after all, one of the reasons for the delay having occurred. However in circumstances where the judge's finding of actual prejudice is not shown to be in error, and is sufficient to lead to the conclusion that the limitation period not be extended, it is unnecessary to give any further consideration to this additional possible basis for denying the extension. 32 In all these circumstances, any appeal would fail. In circumstances where the argument presented to the court has not grappled with the only question of principle that there might be (namely, whether the time for determining prejudice is the date of filing the application for extension, or the date of the judge's decision) and the final determination of that question of principle would not affect the outcome, it is preferable to refuse leave to appeal. 33 I propose that the application for leave to appeal be dismissed with costs. 34 ALLSOP P: I agree. I would only add the following comments. It is to be borne in mind that the discretion in s 60C is a general one based on broad concepts: what is just and reasonable. Section 60E identifies specific criteria but without affecting the generality of the underlying question at hand. Here, although there was an error of fact by the primary judge as identified by Campbell JA, the circumstances were ones which powerfully supported the proposition that it was not just and reasonable to extend the time. 35 In particular the following factors were influential:

(a) a significant delay causing necessary presumptive difficulties and prejudice with litigation;

(b) a key witness was not available thereby potentially detracting from the value of his entirely contemporaneous statement;

(c) the memory lapse of another contemporaneous witness though not crucial; and

(d) all in the context of a decision apparently having been made within time not to sue the Respondent. 36 In my view the learned judge at first instance was clearly correct to conclude that the Applicant had not made out that it would be just and reasonable to extend the time. 37 HANDLEY AJA: I agree with both the previous judgments. I would only add for myself some brief supplementary remarks. In Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, 225 Ipp AJA giving the principal judgment of this court said: "A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant grant of leave. There is ample authority to this effect." 38 In the present case there is no evidence that the Applicant was informed of the relevant limitation period, but she was informed of her alternative rights at common law and under the Workers Compensation Act. She consulted solicitors within a few weeks of her fall. She was advised to pursue her statutory rights and she accepted that advice. Apart from one letter of demand in April 2001 nothing was done to pursue a common law claim until nearly three years after the limitation period had expired. 39 In May 2003 her then solicitors stated in a letter to the workers compensation insurer that the Applicant was not pursuing a common law claim. There is no reason to doubt that she had made a decision to that affect. That was still the position when the limitation period expired in March 2004. The intended defendant heard nothing about the common law claim until the letter of demand of January 2007. 40 The Applicant's decision in this case, on advice, was to pursue her statutory rights rather than her common law rights. That is her explanation for the failure to bring common law proceedings within the limitation period. Such an explanation is, to say the least, a most unpromising basis for an extension of time. In my judgment, the principle applied by the court in Itek Graphix Pty Ltd v Elliott is of some generality and does not depend on a deliberate decision with knowledge of the precise limitation period prior to its expiry. Rather, it depends on a deliberate decision on legal advice that proceedings should not be commenced at common law that is adhered to until after the limitation period had expired. 41 I agree that the application should be dismissed with costs. 42 ALLSOP P: The order of the court is that the application for leave to appeal be dismissed with costs. **********

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