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

New South Wales District Court

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

JUDGMENT DATE: 22 August 2008

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ at 1

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

FILE NUMBER(S): 1078 of 2005

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)

JUDGMENT

1. 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. 2. 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. 3. 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. 4. 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). " 5. 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. 6. 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. 7. 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. 8. 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? 9. 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. 10. 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). 11. 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)). 12. 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). 13. 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. 14. 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. 15. 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. 16. 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." 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. " 22. 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. 23. 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. 24. 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. 25. 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. 26. 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." 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. " 35. 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. 36. 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. 37. 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: