Semmens v Trafalgar Tours & Ors [2001] NSWSC 972

New South Wales Supreme Court

CITATION : Semmens v Trafalgar Tours & Ors [2001] NSWSC 972 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20210 of 2000 HEARING DATE(S) : 8 October 2001 JUDGMENT DATE : 31 October 2001

Patricia Margaret Semmens (Plaintiff) v PARTIES : Trafalgar Tours (Aust) Pty Ltd (First Defendant/First Cross Claimant) Trafalgar Tours of Europe Ltd (Second Defendant/Second Cross Claimant) Trafalgar Tours International Ltd (Third Defendant/Third Cross Claimant) Parkes of Hamilton (Coach Hires) Limited (Cross Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr P Perry (Plaintiff) Mr J Sleight (Cross Defendant) SOLICITORS : Perry & Smith (Plaintiff) Pigott Stinson Ratner Thom (Cross Defendant) CATCHWORDS : Extension of limitation period - threshold requirements - construction of paragraph (b) of s 60I (1) - just and reasonable considerations. LEGISLATION CITED : Limitation Act 1969, Subdivision 3, s 60F, s 60G, s 60I (1) (a) and (b). CASES CITED : N/A DECISION : See Paragraph 27.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20210 OF 2000

MASTER MALPASS

WEDNESDAY 31 OCTOBER 2001

Patricia Margaret Semmens v Trafalgar Tours (Aust) Pty Ltd & Ors

Judgment 1 Master: The plaintiff and her husband arranged through Harvey World Travel to take two tours with Trafalgar Tours. One of the tours was styled "Best of Scotland Trafalgar Tour". They travelled to Scotland in a coach which had "Trafalgar Tours" painted on the outside of the vehicle. 2 On 14 June 1992, whilst in Washington UK, the plaintiff suffered injury when alighting from the coach. At the time of the injury, the coach driver was James McFarlane. The tour director was David Fleming. 3 Following her return to Australia, she instructed her present solicitor (Mr Smith) to commence proceedings for recovery of damages. When she did this remains unclear. Mr Smith was given instructions which identified Trafalgar Tours as being responsible for her injury. He was given a brochure containing terms and conditions. At some later stage, he was given a video of the tour. 4 The terms and conditions contained provisions enabling Trafalgar Tours to use other operators and provisions purporting to exclude liability in respect of the acts or omissions of such operators. The video showed the coach and most of the registration number was discernable. 5 The relevant limitation period expired on 14 June 1995. Shortly before that date (on 6 June 1995), a Statement of Claim was filed naming the existing defendants as the other parties thereto. All were Trafalgar Tours entities. The first defendant was sued as the promoter of the tour. The second and third defendants were sued as the operators of the tour and the owners and/or operators of the coach. 6 It does not appear that any pre-litigation contact was made with Trafalgar Tours. Also, it appears that no other searches or inquiries were made for the purpose of identifying the owner and/or operator of the coach. 7 On 19 September 1995, the defendants filed a Defence. In the Defence, the defendants denied the allegations of ownership and/or operator. The traversing of these allegations did not excite inquiry of the defendants or any other activity concerning the identity of the owner/operator. 8 In late December 1997, the defendants sought the consent of the plaintiff to the filing of a Cross-Claim against the present cross-defendant. Paragraph 5 of the proposed Cross-Claim alleged that the coach was owned and operated by the cross-defendant. In early January 1998, Mr Smith sought instructions from the plaintiff. Consent was given to the filing of the Cross-Claim and it was subsequently filed on 3 March 1998. 9 In August 1998, the cross-defendant sought particulars from the plaintiff. The video was made available to the cross-defendant. On 15 March 1999, the cross-defendant filed its Defence to the Cross-Claim. The Defence denied the allegations made in paragraph 5 of the Cross-Claim. It appears that in May 1999, certain particulars were provided by the plaintiff to the cross-defendant. 10 In April 2000, the defendants by letter gave notice of intention to amend the Defence. The letter enclosed a copy of the proposed Amended Defence. It pleaded inter alia the exclusion clause and asserted that the cross-defendant was the responsible party. The Amended Defence was filed in July 2000. 11 In a letter dated 21 June 2000, Mr Smith was advised by the solicitors for the defendants that the cross-defendant had now admitted that the coach driver was employed by them (the letter is annexure "H" to an affidavit sworn by Mr Smith). 12 On 3 July 2000, the cross-defendant filed an Amended Defence to the Cross-Claim. In the Amended Defence, it admitted the allegations made in paragraph 5 of the Cross-Claim. 13 In August 2000, the plaintiff gave notice of intention to file a Notice of Motion seeking an extension of the limitation period and to join the cross-defendant as a fourth defendant in the proceedings. Rather than proceed with that intention, the plaintiff then pursued inter alia certain interlocutory procedures. As a result, the Notice of Motion was not filed until 3 May 2001. 14 This Notice of Motion was heard on 8 October 2001. The plaintiff has relied on affidavits sworn by both herself and her solicitor. Both deponents have been cross-examined. There has been a tender of documentation. 15 In one of her affidavits, the plaintiff has deposed inter alia to the following:- "I did not know that there was a connection betwenn (sic) the injuries that I sustained on 14 June 1992 and any act or omission on the part of Cross Defendant or person, servant or agent, acting on its behalf, until I read the First, Second and Third named Defendant's Amended Notice of Grounds of Defence, filed on 11 July 2000." 16 In one of his affidavits Mr Smith has deposed inter alia to the following:- "In or about March 1998, after the Defendants' (sic) filed a Notice of Cross Claim, I became aware that the tourist coach in which the Plaintiff injured herself was made available to the Defendants, pursuant to an agreement between the Second Defendant and the Cross Defendant. I believed at this time that the coach driver and tour director, who were present when the Plaintiff injured her left knee, were employees of the three Defendants. This belief continued up until I received annexure 'H'. " 17 The extension of time was sought pursuant to s 60G of the Limitation Act 1969 (the Act). Section 60I prohibits the making of an order under s 60G unless the court is satisfied of the matters set forth in paragraphs (a) and (b) of sub-section (1) thereof. These provisions have been seen as imposing threshold requirements to the making of an order. 18 When these matters have been satisfied, the court may grant relief if it also finds that it is just and reasonable to do so. The plaintiff bears the onus of demonstrating an entitlement to relief. 19 Section 60I (1) is in the following terms: "60I Matters to be considered by court (1) 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)." 20 For present purposes, the court is concerned with (a) (iii) and (b) of this sub-section. 21 The plaintiff does not rely on either (i) or (ii). She relies solely on (iii). On behalf of the plaintiff, it was said that she was ignorant of the identity of the cross-defendant until after the expiration of the limitation period. The cross-defendant says nothing in relation to that factual contention. But it does seek to propound what has been described as a construction argument. It is said that the plaintiff does not have to be aware of the identity of the defendant for her to be aware of the connection between personal injury and the relevant act or omission. It is further said that she was aware of the connection between her personal injury and the act or omission that caused it well before the expiration of the limitation period. I shall return to the construction argument later in the judgment. 22 Whilst it might seem surprising, the effect of the plaintiff's oral and affidavit evidence is that neither in January 1998 nor by March 1998 did she become aware of the matter listed in (iii). The cross-defendant does not make any submission to the contrary. However, the cross-defendant does contend that she ought to have become aware of it prior to May 1998 and that she has failed to satisfy the requirements of paragraph (b). 23 The plaintiff bears the onus of satisfying paragraph (b). Each case will turn on its own particular circumstances. In my view, in the circumstances of this case she has failed to discharge that onus. Indeed, it seems to me that she ought to have become aware of the matter listed in (iii) prior to May 1998 (at least by early 1998, if not earlier). 24 The plaintiff's failure to satisfy paragraph (b) means that the application cannot succeed. In the circumstances, it is unnecessary to either dwell on the construction argument or express any concluded view. Although the matter has not been fully argued, some observations may be helpful. 25 It may be observed that the cross-defendant's argument does not accord with the approach generally taken to the construction of (iii). It does receive some support from the content of s 60F (which sets out the purpose of Subdivision 3 of which s 60I forms part). The provision is not felicitously drafted. Parliament has chosen to insert the word "defendant's" therein. It could be expected that this was done for a purpose. It may be said that there will be cases in which the words "the defendant's act or omission" will seem inappropriate. I have in mind those cases in which the party against whom the extension is sought is in fact not a defendant to the proceedings (which is the position in the present case). Leaving that matter aside, it could be thought that the purpose of inserting "defendant's" in the provision was to make the identity of the party responsible for the act or omission a matter of relevance. If this was not intended to be the case, Parliament could have simply drafted a provision requiring unawareness of the connection between the personal injury and the act or omission that caused such personal injury. 26 Likewise, it is unnecessary to express any concluded view on whether or not the court should decide that it is just and reasonable to make an order. However, for the assistance of the parties I will make some observations. Whilst it was not said that the delay has occasioned prejudice, emphasis has been placed on the length of the delay and the shortcomings of what is offered to explain the delay. The plaintiff has been legally represented for many years. During that time she had information and/or the means to acquire relevant awareness. It seems to me that these are circumstances having considerable weight and would lead to a decision adverse to the plaintiff. 27 The Notice of Motion is dismissed. The plaintiff is to pay the costs of the Notice of Motion. The exhibits may be returned. **********