New South Wales District Court CITATION: Murljacic v Collins [2006] NSWDC 192 HEARING DATE(S): 21/02/06 EX TEMPORE JUDGMENT DATE : 02/21/2006 JURISDICTION: Civil JUDGMENT OF: Goldring DCJ DECISION: Order that the plaintiff have an extension of time to file a statement of claim and that that should be done within 7 days from today; Dismiss the defendants' application CATCHWORDS: Practice and procedure - Extension of time - prima facie cause of action - delay - prejudice CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Timor Murljacic (Plaintiff) PARTIES: John Collins (First Defendant) Sharon Collins (Second Defendant) FILE NUMBER(S): 106 of 2005 Wollongong COUNSEL: Mr G. Smith (Plaintiff) Mr J. Sleight (Defendants) SOLICITORS: Lough Wells Duncan Lawyers, Wollongong (Plaintiff) Hunt & Hunt Lawyers (Defendants) JUDGMENT 1 HIS HONOUR: These are two motions, one brought by the plaintiff, Mr Murljacic, and one by the defendants, in relation to a claim by Mr Murljacic for damages for personal injuries he suffered when, in 2001 on the relevant date, which was 4 August 2001, a Saturday, the plaintiff was riding his motorbike along a road in the Bemboka area near Bega. It is not disputed, I think, at this stage that he hit a cow. He was thrown from his motorbike and he was seriously injured. 2 His leg snapped and he was unable to walk. About an hour later his partner found him beside the road and took him, first of all to the Bemboka Village, and he was from there taken by ambulance to Bega Hospital, where he spent some time. 3 He claims, as a result of this accident, to have suffered permanent injury, which means that he can no longer carry out the work that he was doing at the time of this incident. 4 After he was released from hospital, apparently in December 2004, he returned to the scene of the accident and there he and his partner took some photographs some of which are in evidence before me. They include the place where he alleged the incident took place and the place where he ended up. Also, there are some photographs of a fence, which clearly appears to be in a state of some disrepair. 5 The plaintiff says that he was informed by neighbours that the defendants owned the property adjacent to the road where he was hit. He says also that after he was hit, while he was lying on the road or beside it, because he had to drag himself off the road, he saw the cow that he had hit climb across the dilapidated fence and go into the paddock on the property, which he later ascertained to be owned by the defendants. 6 He alleges in the statement of claim that the defendants were negligent because the cow was the property of the defendants. They had failed to adequately and securely fence the boundaries of the property; failed to inspect boundary fences regularly at all; failed to prevent the entry or exit of cattle into or onto the roadway; failed to repair the boundary fence regularly at all; failed to warn the plaintiff of the danger of cattle on the roadway and having fencing that was in such poor condition. That is my paraphrase of the particulars of negligence set out in the statement of claim. 7 Mr Sleight, for the defendants, says that there is not even a prima facie case to support the plaintiff's claim. 8 There is, of course, the plaintiff's own evidence and that evidence is that a cow was on the road and that he saw this cow cross the fence on to the defendants' property. 9 It is not for the plaintiff to do any more than establish facts which constitute a prima facie case, or from which an inference of a prima facie case can be drawn in these proceedings and I am satisfied that the plaintiff has done so. 10 Cases of cattle straying on to the road and causing injury to persons are not easy to prove and they are almost always dealt with on the balance of probabilities, rather than by conclusive evidence. 11 In this case it seems to me that the plaintiff has established that the defendant's property was adjacent to the road; that the fences at the time were not in good repair and that a cow was able, without a great deal of effort, to cross the fence. 12 In my view, those are facts from which a tribunal of fact might be asked reasonably to infer that one of the types of negligence specified in the statement of claim had occurred. 13 On that basis I do not accept the defendants' submissions that there is no prima facie case. 14 I then come to the question of delay. It is conceded by the defendant that there is no actual prejudice in this case, because it has been aware of the claim ever since December 2001. Apparently, at that time Mr Murljacic spoke to Mr and/or Mrs Collins and they made a claim on their insurer. The insurer has become aware, made some investigations and Mr Sleight quite properly says there would be no actual prejudice. 15 There is, of course, a presumptive prejudice of the type referred to by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and considered by the Court of Appeal in Sydney City Council v Zegarac (1998) 43 NSWLR 195. 16 In Zegarac's case, of course, although the Court agreed with the High Court, that there is presumptive prejudice to a defendant, it said that each case must be considered on its merits. In the absence of any actual prejudice to the defendant it must be considered also that the plaintiff may be suffering some disadvantage because of the passage of time. 17 It is the plaintiff who has to prove each element of its case on the balance of probabilities and the passage of time does not make that any easier. 18 In all the circumstances it seems to me that this is a case where, if I am satisfied of the reasons for the delay, I should grant the leave which the plaintiff seeks. 19 The reasons why the matter has not come before the Court within the limitation period appears to be because the plaintiff did instruct a solicitor in Bega. That solicitor has now ceased to practice on his own account, but it appears from the correspondence before me that he did very little to pursue the plaintiff's case. It might well be said that the plaintiff's remedy is against his former solicitor, rather than against the defendants but on a number of occasions, particularly Kirby J, both in the Court of Appeal and in the High Court and, if my memory serves me properly, also McHugh J, most emphatically have said that a right to claim damages for negligence against a solicitor is no real substitute for the right to claim against a defendant who might properly be found liable. 20 The solicitor, for whatever reason, did tell the plaintiff that there were limitation periods, but the only clear statement of this is in a letter, which the plaintiff says he may not have received. He says, however, that the solicitor told him about limitation periods, but he says also that there is no evidence as to whether he was ever told exactly what that limitation period was. 21 When the former solicitor disposed of his practice, or merged it with another practice, the plaintiff says that, in effect, he was told to seek advice elsewhere. The result of that was that he immediately went to see his current solicitor, who up until October of last year, at least, has acted with complete diligence obtaining documents relating to the plaintiff's injuries, contacting witnesses and so on. 22 The matter was before the Court last year and, in October, by agreement, some orders were made relating to a timetable. One of the matters that the plaintiff's solicitors undertook to do in that timetable was to seek an extension of time for the commencement of proceedings. That was not done within the time allocated and, as a result, the defendant now moves the Court to dismiss the proceedings. 23 Obviously both those applications have to be dealt with at the same time. For the reasons I have given it seems to me that the delay is not so inordinate that I should not grant leave. It seems to me that it is inevitable that the plaintiff will have to pay the costs of the application because of the delay. That is usual. But that seems to me to be all that the plaintiff should suffer because of this delay. 24 I therefore make the orders sought in the plaintiff's notice of motion: that the plaintiff have an extension of time to file a statement of claim and that that should be done within seven days of today. 25 I dismiss the defendants' application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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