BUTLER v GAUDRON [1994] NSWCA 38

BUTLER v GAUDRON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and COLE JJ 22 September and 17 November 1994, 17 November 1994 [1994] NSWCA 38

LIMITATION OF ACTIONS — preliminary question — assumed facts — principle of Deane J in Hawkins), Clayton (1988) 164 CLR 539.

LIMITATION OF ACTIONS — respondent suffered injury in 1964 aged 8 years — no proceedings commenced in respect thereof — sought advice from solicitor in 1977 regarding 1964 injury — advised action statute barred — respondent commenced proceedings against solicitor in 1993 claiming advice negligent — whether principle enunciated by Deane J in Hawkins v Clayton (1988) 164 CLR 539 applicable — held: The determination of preliminary questions on assumed and hypothetical facts is an unsatisfactory basis for determining the limits of novel limitation principles: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 applied. Limitation Act 1969, s14

ORDERS Appeal allowed. Order for hearing of preliminary questions set aside.

Handley JA The Court has before it an appeal, by leave, from a decision of his Honour Judge Christie QC in the District Court given on 22 July this year. His Honour was asked to decide a preliminary question of law arising in unusual circumstances.

The plaintiff, now an adult, was severely injured in April 1964 when he was aged eight when his left foot was run over by a train operated by the Commissioner for Railways, if I correctly understand the legislation, the train being driven by his father. He suffered a partial amputation of his foot with continuing disabilities.

The plaintiff attained his majority in June 1973 without any proceedings having been taken on his behalf to recover compensation for his injuries.

He was injured in a motor vehicle accident in May 1977, and he sought legal advice from a firm of solicitors in connection with the injuries he sustained in the motor vehicle accident.