Ratko v Ratko [2003] NSWCA 219

New South Wales Court of Appeal

CITATION : Ratko v Ratko [2003] NSWCA 219 HEARING DATE(S) : 07/08/03 JUDGMENT DATE : 7 August 2003

JUDGMENT OF : Mason P at 25; Santow JA at 26; Ipp JA at 1 DECISION : (1) Time to apply for leave to appeal extended (2) Application for leave to appeal dismissed with costs.

CATCHWORDS : LIMITATION OF ACTIONS - Extension of time - Whether trial judge was entitled to find that the opponent had a 'real cause to advance' that his injury was caused by accident - Whether it is just and reasonable to extend the limitation period under s 60C of the Limitation Act 1969 - Reasons for delay - Whether delay caused actual prejudice to the claimant. ND LEGISLATION CITED : Limitation Act 1969 (NSW) Civil Liability Act 2002 CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 PARTIES : Mario Ratko (Claimant) Franc Ratko (Opponent) FILE NUMBER(S) : CA 40096/03 COUNSEL : S Donaldson SC/M Hutchings (Claimant) D R Benson (Opponent) SOLICITORS : Minter Ellison (Claimant) Reid & Reid (Opponent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 357/02 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40096/03 DC 357/02

MASON P SANTOW JA IPP JA

Thursday 7 August 2003 MARIO RATKO v FRANC RATKO Judgment 1 IPP JA: The claimant seeks leave to appeal from a decision of Nield DCJ made pursuant to s 60C of the Limitation Act 1969 (NSW) whereby he granted the opponent an extension of time in which to commence proceedings against the claimant for damages for personal injury. The opponent's claim arises out of injuries he suffered on 21 August 1996 when he fell at the claimant's residence. 2 Nield DCJ held, in effect, that the claimant's negligence arguably caused the opponent to fall, and the claimant does not challenge this finding in these proceedings. 3 The claimant relies principally on three arguments. 4 Firstly, he submits that Nield DCJ concluded, in the absence of evidence, that the injury to the opponent's shoulder was substantial. On this basis the complainant contends that the opponent had no "real case to advance" in respect of damages because the statutory threshold in the Civil Liability Act 2002 was not met. 5 Secondly, the claimant submits that his Honour erred in finding that the opponent's delay was adequately explained as there Was no evidence to support the conclusion that the opponent was unaware of the extent of his injury. 6 Thirdly, the claimant contends that the judge misdirected himself in regard to the prejudice suffered by the claimant. The claimant submits that the judge erred in considering the issue: "... by comparing the claimant's position in the event of a grant of leave to that which it would have occupied had the proceedings been commenced immediately prior to the expiration of the limitation period". 7 I turn firstly to the argument that the opponent has not adequately shown that the injury to his shoulder was substantial. Mr Donaldson SC, senior counsel for the claimant, referred to a report dated 9 July 1985 from an orthopaedic surgeon which indicated that at about that time: "The Left Shoulder: On this occasion the head of the humerus was tender. He complained of pain on resisted movement of the various elements of the rotator cuff. Grating was present on movement. Active and passive elevation were reduced as were internal and external rotation – a typical capsular pattern of restriction." 8 Mr Donaldson also referred to a letter dated 17 May 2002 from Dr Soh, the opponent's general practitioner, which referred to the opponent having sustained fractured ribs in the fall but which made no mention of any injury to his shoulder. 9 The opponent himself gave evidence to the effect that he injured his shoulder in the fall. In an affidavit filed in support of his application for an extension of time, the opponent said that on 21 August 1996, while he was visiting the claimant, he was descending a set of steps when a step broke, causing him to fall. He said that in consequence of the fall he sustained the following injuries: shock, multiple rib fractures, an aggravation of a pre-existing injury to his back and an injury to his left shoulder. 10 According to the medical evidence, the opponent suffered fractures to several ribs on his right side. Nield DCJ accepted this and there is no challenge to that finding. 11 Nield DCJ also accepted that the opponent had aggravated his lower back disability, although he pointed out that the opponent did not make much of this particular injury. The opponent was cross-examined before his Honour, but was not questioned about the injury he said occurred to his lower back. His Honour's finding on this issue is not challenged. 12 In the opponent's oral testimony before His Honour he said that prior to his fall on 21 August 1996 he was in reasonable health and was able to use his left arm. He said that after his fall, however, his ability to use his left arm was not "too good". The opponent testified that after the fall he had "a very bad pain in the shoulder and it was hanging down". He said that it took him four years to find out what was wrong with his shoulder, although he received medical advice in the meantime. Eventually, after an ultrasound of his left shoulder, which occurred on 25 June 1999, a tear in a tendon was discovered. This led to injections to his shoulder and subsequently to an operation carried out by an orthopaedic surgeon, Dr Tarrant. Since the operation he has only been able to lift his arm to about forty-five degrees to the chest. 13 Generally the opponent's evidence is capable of establishing that, prior to his fall, he was not suffering from any disability in his left shoulder, but after the fall he suffered relatively severe pain and disability in his shoulder. Further, the evidence is capable of establishing that he complained about his pain and disability to Dr Soh; he received conservative medical treatment from Dr Soh and this treatment did not alleviate his problems; Dr Soh could not establish the cause of the difficulties and only when Dr Tarrant required an ultrasound to be carried out was the true cause of his pain and disability identified. 14 I do not think that the medical report of 9 July 1985 and Dr Soh's letter of 17 May 2002 prevented the judge from finding that the opponent had a real case to advance that his shoulder injury was caused by the accident: Mansfield v Heather [2000] NSWCA 36. The earlier shoulder condition identified in 1985 may well have healed, or healed substantially, prior to the fall. Dr Soh's letter only assumes significance if one knows the request made to him in response to which he wrote the letter. He may have only been asked to report on the fractured ribs. This is a matter that is best clarified at the trial. 15 Dr Tarrant performed a rotator cuff repair on the opponent's left shoulder on 20 June 2001. In a report to Dr Soh, Dr Tarrant said that the opponent had: "spontaneous onset of problems in both shoulders, more so to the left".