Reported Decision : 7 DCLR (NSW) 173 New South Wales District Court CITATION: Daniela Bet (aka Daniela Biviano) v UTS Haberfield Club Limited [2008] NSWDC 158 HEARING DATE(S): 13 June 2008 JUDGMENT DATE: 18 June 2008 JURISDICTION: Civil JUDGMENT OF: Elkaim SC DCJ 1. The plaintiff's Notice of Motion filed on 15 May 2008 is dismissed. DECISION: 2. The plaintiff's action is dismissed by reason of it not being maintainable under section 50C(1). 3. The plaintiff is to pay the defendant's costs of both Notices of Motion and of the proceedings generally. CATCHWORDS: Limitation - date of discoverability LEGISLATION CITED: Limitation Act 1969 CASES CITED: Antonini v SRA (No. 2) [2006] NSWDC 133 Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287 PARTIES: Daniela Bet (Plaintiff) UTS Haberfield Club Limited (Defendant) FILE NUMBER(S): 501/08 COUNSEL: Mr C Stewart (Plaintiff) Mr S Kettle (Defendant) SOLICITORS: Margiotta Lawyers (Plaintiff) Thompson Cooper Lawyers (Defendant) JUDGMENT 1. HIS HONOUR: There are two motions before the court. The plaintiff seeks an extension of the limitation period, the defendant asks for the action to be struck out because it has been filed outside of the limitation period. The parties agree that the same issues arise in each motion. 2. The plaintiff relies on her oral evidence together with her affidavit and the affidavit of her solicitor. The defendant relies on an affidavit of Mr Thompson, its solicitor. 3. The background is as follows. On 21 February 2004 the plaintiff attended the defendant's premises, a club, to celebrate the 21st birthday of a work mate. In the course of the evening, while on the dance floor, the plaintiff slipped and broke her arm. She was initially taken to Balmain Hospital and then transferred to Royal Prince Alfred Hospital where she underwent surgery and remained for seven days. 4. Her statement of claim alleges that her injuries were caused by the defendant's negligence. 5. It is common ground between the parties that the applicable limitation period is that set out in Section 50C(1)(a) of the Limitation Act 1969, namely: "..the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff." 6. There is no provision for the extension of this period. The issue before the court is when was the action "discoverable". The extension order sought by the plaintiff in her Notice of Motion is thus not available; however no point was taken as to the wording and it was clear that the parties proceeded on the above issue. I note here that the reliance by the plaintiff on Section 62F of the Act was appropriately abandoned. 7. The Statement of Claim was filed on 18 February 2008. This is just under 4 years since the plaintiff was injured. In February this year Mr Margiotta telephoned the plaintiff and told her that proceedings needed to be filed because there were applicable time limits. It is quite clear that Mr Margiotta was proceeding on the basis that he had 3 years from the date of injury to commence proceedings. 8. Unfortunately at some time after he received instructions (in May 2005) a fundamental error occurred in his office, namely when the date of the accident was inserted on the cover of the plaintiff's file it was out by one year (21 February 2005 instead of 21 February 2004). A copy of the file cover is Annexure 'A' to Mr Margiotta's affidavit. When Mr Margiotta performed his periodic review of the file he was misled by this error and thus he took no action until 31 January 2008 thinking the proceedings were still in time. I do not think Mr Margiotta's assumption of a 3 year limitation period from the date of injury is of significance (his affidavit at paragraph 9). I rather had the impression he thought this was (as it had been before the 2002 amendments) the limitation period and he had not considered the question of discoverability. It has only been after revelation of the error that, I infer, this question has been examined. 9. If the plaintiff is to succeed, both parties agree, the date the action was "discoverable" must be on or after 18 February 2005. This would then allow for the commencement of proceedings on 18 February 2008. 10. The date a cause of action is "discoverable" is dictated by Section 50D. This is in the following terms: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action . (2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased. 11. There is no doubt the injury suffered by the plaintiff was serious. The plaintiff required the insertion of 'metalwork' and she was hospitalised for some time. A description of her condition can be seen in the report of Dr Ellis (Exhibit B). The "fact" needed to be known by Section 50D(1)(a) is conceded by the plaintiff to have been known in 2004. The plaintiff, again appropriately, has conceded the "fact" required by Section 50D(1)(c), although the concession was perhaps not as strongly made as in respect of subsection (a). 12. The dispute between the parties has centred on Section 50D(1)(b). The plaintiff says this fact, namely that the "injury…was caused by the fault of the defendant" was not known by the plaintiff before 20 May 2005. This was when she first consulted Mr Margiotta and this, says the plaintiff, is the date the cause of action was "discoverable". 13. The defendant says the relevant date is much earlier and places it almost immediately after the accident and certainly within 7 days of it occurring. 14. The plaintiff's reasoning is as follows: Whatever the plaintiff may have thought after the accident about her case, and its strengths, it was only when she saw Mr Margiotta that these thoughts were given credence by his advice. This was because, despite her early conclusions, she had received from her former solicitors (Andersons) copies of statements from the defendant which contradicted her understanding of the events of the evening. In the light of these statements (Exhibit A), it was argued, she could not have known that her injury was caused by the fault of the defendant. As she said in her evidence, at that stage (before seeing Mr Margiotta), because of the negative statements she was not sure she had a case. I note here that her evidence was not entirely consistent on this point because she also said that having received the statements from Mr Rando her views on fault didn't change because she felt the statements were wrong. I will return to the contents of the statements below. 15. The defendant's position is based on the following: (a) The plaintiff had herself seen people spilling drinks and the spillage was not being cleaned up. (b) When the plaintiff was in hospital she was visited by a work colleague, Ms Betty Slater, who told her that she had seen alcohol being spilled on the dance floor, that she had complained to the bar staff and asked them to clean it up and despite a number of complaints no action had been taken. Further, said Ms Slater, it was on this alcohol that the plaintiff slipped. (c) An examination of most of the particulars of negligence pleaded, in particular subparagraphs 6 (b), (d), (e) and (f), reveals that the plaintiff's case is fundamentally drawn from the information received from Ms Slater. (d) The plaintiff knew almost immediately that she had been injured and very soon afterwards that it was serious injury. Accordingly the 3 legs of Section 50D(1) were satisfied as soon as Ms Slater had spoken to the plaintiff. Further, the defendant pointed out that the relevant date is the "first date" of requisite knowledge by the plaintiff and therefore it did not matter if the plaintiff's knowledge was subsequently affected by further information. 16. I think it appropriate at this stage to relate in more detail some of the facts which emerged from the affidavits and oral evidence. Before doing so, however, I note that the plaintiff's evidence was given in a direct manner and despite some areas of inconsistency I thought she was doing her best to be accurate and honest. In fact the strength of the case against her derives in most part from her honesty and her frank revelations of what she was told by Ms Slater. 17. The plaintiff was born on 3 July 1977. She is an Early Childhood Teacher by occupation. She is on maternity leave at the moment. As I have said she was attending a work mate's 21st birthday party on 21 February 2004 at the defendant's premises when she fell over and slipped on the dance floor. She was taken to Balmain Hospital and then transferred to the Royal Prince Alfred Hospital where she had an operation to reduce a fracture of the left humerus. She required a plate with seven screws. She stayed in hospital for seven days. 18. While in hospital the plaintiff was visited by a friend from work, Ms Betty Slater. As I have related above she told the plaintiff that she had seen alcohol being spilled on the dance floor, that she had complained about it more than once and she had seen that nothing was done about it. She said the Club's actions had been negligent. The plaintiff may have seen and spoken to her again in 2005 but I am not sure of this as the evidence was a little unclear. I note here that I do not have a transcript of the evidence. 19. Under cross examination the plaintiff said that within a week of the injury she knew she had had a serious injury, she knew it had been caused by the fault of the Club and she thought it was serious enough to sue upon. As a result she sought legal advice. 20. In March 2004 she consulted Mr Rando of Anderson Lawyers. On 7 April 2004 she received a letter from Mr Rando, enclosing a letter from Proclaim, acting on behalf of the Club. (Attachment A to her Affidavit.) 21. She said that when she saw Mr Rando she had told him what Ms Slater had said and she told him that she thought the Club was at fault. He did not give his opinion and it emerged later that he felt the matter was outside his expertise. This was why she moved on to Margiotta Lawyers. Before she did so, however, she received from Anderson Lawyers a letter dated 6 August 2004 enclosing a letter from Proclaim, in turn enclosing a number of statements. These are the statements that the plaintiff felt were incorrect and it is easy to see why she did so. 22. There is a statement dated 4 March 2004 prepared by a staff member of the defendant named Joseph Luna. He essentially relates the circumstances of receiving a telephone call from the plaintiff reporting the incident. He seems to have been most concerned to question her about why she had taken so long to report such a serious injury. I am not at all surprised about the time taken having regard to the very seriousness of the injury. There is another statement from Mr Luna dated 21 February 2004 made at approximately 11pm on that day. It refers to an incident at about 10.30pm and relates to him providing ice for use by someone who had fallen over on the dance floor. He says he asked the security staff to investigate and they told him that the person involved had been caught smoking illegal substances outside the Club at about 9pm. It is impossible to know if the incident described here is that relating to the plaintiff. Certainly she denies smoking any illegal substances. There is then a statement dated 15 March 2004 from a Mr Seamus McGee who I take to be another member of the defendant's staff. He simply says he did not see or hear of any injuries sustained on the evening in question. 23. Finally, there is a statement from a Rameka Karena who was the Crowd Control Officer at the Club on the evening of 21 February 2004. I am not sure if this is a male or female person so I will refer to him (or her) as Officer Karena. The Officer says that after smelling the aroma of pot on the outside balcony he (she) discovered three middle aged females sharing a joint. They were asked to throw the joint into the water and not to smoke any more. They complied. About an hour later the Bar Manager asked the Officer to monitor the same ladies, especially the one who had smoked the joint for the first time (see the statement) because she had fallen over while dancing and needed ice for her leg. Officer Karena monitored the situation and noticed that the injured person was escorted off the venue with the aid of two other ladies. A number of things arise from the observations of the officer. Firstly, the plaintiff denies she smoked any illegal substance, secondly she hurt her arm and not her leg and thirdly she was aged 27 at the time and I doubt would be described as middle aged. 24. I have no difficulty understanding why the plaintiff was upset by the statements and moreover that she considered them to be simply wrong. The fact, however, that they are so obviously incorrect, in a sense does not help the plaintiff because their clear unreliability would not have caused the plaintiff to change her thoughts on the culpability of the Club. 25. The plaintiff saw Mr Margiotta for the first time on 20 May 2005 and told him the circumstances of her fall including what she had been told by Ms Slater. She also told Mr Margiotta the correct date of injury and there is no issue that the fault leading to the incorrect date being placed on the file occurred in the lawyer's office and is not attributable to the plaintiff. 26. The plaintiff said that after her initial contact with Mr Margiotta she telephoned him on 15 July 2005. She was then rung by him in 2007 and then again on 31 January 2008. She then went to a conference with a barrister on 14 February 2008. 27. She said in cross examination that from 2005 she did not pursue the matter but left it in her solicitor's hands. It was at this stage that she said that because of the negative witness statements she was not sure she had a case. In addition, her parents were ill and she had had a baby and was therefore otherwise occupied. She did not know there were any time limits. Her statement at this stage that she was not sure that she had a case, as I have said above, was inconsistent with her evidence that nothing changed in her considerations about fault following receipt of the statements from the Club in August 2004. 28. Although I do not think much turns on it the plaintiff said that she discussed witnesses at the barristers conference. Mr Margiotta said he had been in contact with Betty Slater but the plaintiff said she had never seen a witness statement from her. She said that at the conference nothing was said to her about the prospects of the claim. She also said that she had no information about whether the floor had ever been tested. 29. There is an affidavit relied upon by the defendant sworn by Mr Patrick Thompson. There is nothing of significance in this affidavit. It essentially describes how the limitation point was taken and some other procedural matters. 30. The parties have referred me to two cases from fellow Judges of this Court. The first is that of Judge Sidis in Antonini v SRA (No. 2) [2006] NSWDC 133. This is an ex tempore judgment of her Honour in which she was asked to find that the date of discoverability had occurred while a plaintiff was in hospital and prior to her consulting a solicitor. Her Honour found that the plaintiff would not have known that the injury "was sufficiently serious to justify the bringing of a cause of action" because there was evidence of a later consultation with a solicitor in which he advised the plaintiff that the injury was not so sufficiently serious. 31. The second case I was referred to is that of Nielson DCJ in Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287. In this matter his Honour took a close look at the various provisions and, relevant to the current matter, said the following, at paragraph 48: " In my view, section 50D(1)(b) requires two things of a plaintiff. Firstly, a knowledge of the causal nexus between the injury or death and the defendant's conduct and, secondly, knowledge by the plaintiff of the culpability of the defendant for the injury or death. In using the word "culpability", I do not mean, for example, that the plaintiff must know whether his or her cause of action is in negligence, nuisance, trespass, breach of statutory duty or however otherwise it might arise, but I mean that there is some form of culpability which the law recognises. Clearly, her Honour Judge Sidis in Antonini seemed to adopt that view." 32. Perhaps more in line with the plaintiff's position in this case is what his Honour, in Wright, said at paragraph 58: "The question is, when ought the plaintiff have been aware of legal culpability? In my view, that can only occur either if a plaintiff is aware of legal culpability through some expertise or training or has been advised of that by somebody with expertise or training. For example, if the fault, in question, was fault for the cause of a motor vehicle accident, most experienced motorists could form a view about that. One would not need to call upon a lawyer. Equally, one can accept that there are many sorts of occupations where one has developed expertise which might help to ascertain "fault", for example, an insurance loss adjustor, a policeman. There are many such experts or quasi-experts. " 33. As I have said the plaintiff here suggests that the date of discoverability only occurred when she saw Mr Margiotta in May 2005 and was then, apparently, told that she had a good cause of action. 34. Applying the reasoning of Nielson DCJ in Wright, as stated in paragraph 58 of his judgment, the plaintiff asserts that, despite her own thoughts, she would not have known that the plaintiff was at fault (in the sense required by the section) until Mr Margiotta told her so. If what his Honour says in paragraph 58 is that a person, absent any legal or other relevant expertise, cannot of his or her own accord form a conclusion about fault then I respectfully disagree with his Honour. I do not, however, think his Honour goes that far. It seems to me that if the test required the intervention of expert advice it would have said so and further that such an interpretation is contrary to the intention of the section which is to impose upon a potential plaintiff the obligation to commence proceedings within three years of knowing that there was a defendant who had been at fault. 35. Returning to this case, I said above that in a sense the plaintiff is a victim of her own honesty. I was particularly impressed by her and impressed by her statement that having spoken to Ms Slater she was firmly of the view, and appropriately so, that her injury was caused by the fault of the defendant. That being so I, regrettably, come to the conclusion that the date the action was discoverable was about a week following the injury. In the circumstances of this case the precise date does not matter. I repeat here that the fact that the injury had occurred was not in issue, nor was it suggested that the fact that the injury was sufficiently serious to justify the action was not known by the plaintiff at least by the end of 2004. The issue agitated by the parties was the requirement under section 50D(1)(b). 36. A secondary argument which arose, although perhaps not stated in exactly this way, was that the date of discoverability could be effectively postponed if something happened which affected the required knowledge of the plaintiff. Thus it was said that even if the plaintiff had the requisite knowledge following the visit of Ms Slater, that knowledge would have been 'put on hold' when the plaintiff received the statements from Anderson Lawyers in August 2004 and then recommenced after she saw Mr Margiotta in May 2005. Although this argument has an attraction if one were to accept the plaintiff's evidence that following receipt of the statements she no longer knew if the defendant was at fault, I think the argument must, however, fail for the following reasons: (a) The Act itself makes no provision for a limitation period to start, stop and then restart again. (b) Section 51D(1) refers to the "first date" that the plaintiff knew of the required facts. (c) Despite her abovementioned evidence the plaintiff also said, in cross examination, that nothing changed her mind about the fault of the Club. (d) The statements themselves are so obviously wrong that, if the test is that of the reasonable person (as suggested by Section 50D(2)), then the statements would not have had any effect on such a person. 37. Although not directly on point, I think it also worth noting that the problem arose in this case not because of any hesitancy on the part of the plaintiff or her solicitors about whether they should commence proceedings. It arose quite simply because somebody in Margiotta Lawyer's office put the wrong date on the file. 38. Accordingly, the filing of the Statement of Claim in February 2008 has occurred more than three years after the date of discoverability. The proceedings are therefore out of time and I have consequently no choice but to accede to the orders sought by the defendant in its Notice of Motion filed on 16 March 2008. 39. I make the following orders: 1. The plaintiff's Notice of Motion filed on 15 May 2008 is dismissed. 2. The plaintiff's action is dismissed by reason of it not being maintainable under section 50C(1). 3. The plaintiff is to pay the defendant's costs of both Notices of Motion and of the proceedings generally. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.