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". After describing the nature of the injuries to the opponent's left shoulder, Dr Tarrant said: "Bearing in mind that 70% of men who are 70 years of age have tears in both tendons such pathology is not all that surprising". It is not clear from this report whether Dr Tarrant was told that the opponent had hurt his shoulder in a fall. Although he accepted that the shoulder injury occurred spontaneously, it is not clear whether he applied his mind to the possibility that the injury was caused by the fall. It is also not clear whether he was even asked to consider the cause of the injury in the light of the circumstances that in fact obtained. For these reasons, I consider that Dr Tarrant's report, too, did not preclude Nield DCJ from finding that the opponent had a "real case to advance" that his shoulder injury was caused by the accident. 16 Nield DCJ said that he expected that the opponent's damages would exceed the threshold provided by the Civil Liability Act, namely in excess of 15% of a worst case. While this is certainly a debatable question, I am not persuaded that his Honour's view of this issue was necessarily wrong. In the circumstances, I would not uphold the claimant's first argument. 17 I turn now to the question of delay. In this regard, Nield DCJ said: "Although the period between his fall on 21 August 1996 and the filing of his motion on 7 May 2002 is considerable, … the delay has been explained and the explanation for the delay is understandable and satisfactory". Nield DCJ said that, although the opponent knew that he had injured his left shoulder, ribs and lower back immediately after he had fallen, he did not know the nature and extent of his left shoulder injury until Dr Tarrant performed the rotator cuff repair on 20 June 2001. As I have pointed out, there was evidence that he had complained about his shoulder injury for several years, but his treating doctors were unable to determine the true cause until 1999. I accept that it is open to question whether a reasonable person would have known the nature and extent of the injury, but Nield DCJ acted on a further consideration in determining that it was just and reasonable to extend the limitation period. 18 His Honour pointed out that the opponent was aged 67 years when he was injured on 21 August 1996. He was born in Slovenia and arrived in Australia sometime before August 1981. He lives with his wife who, like him, has a poor command of English. He could not understand a number of the questions he was asked in cross-examination. He was ignorant of his right to bring a claim against the claimant until after 22 June 2001 when Dr Tarrant told him that he could do so. 19 The claimant rightly points out that the opponent cannot escape the operation of the Limitation Act simply by virtue of his ignorance of his legal rights. Nevertheless, the opponent's personal circumstances and his knowledge of his rights are relevant to the determination of whether it is just and reasonable to extend the limitation period under s 60C(2) of the Limitation Act. These matters bear on the "reasons for the delay" a factor to which, by s 60E(1)(a), the Court is obliged to have regard. 20 I accept that it will be a rare case where ignorance of the law will be an important factor in extending time, but in the particular circumstances of this case his Honour was entitled to have particular regard to the personal circumstances of the opponent, his difficulties in understanding English, his origins and his obvious ignorance of the legal regime in this country. All in all, I consider that it was open to his Honour to come to the conclusion that he did and I would not uphold the claimant's second argument. 21 The claimant's third argument, in effect, rests on presumptive prejudice. Nield DCJ pointed out that the claimant has personal knowledge of ownership and occupation of his residence, of the condition of the rear set of steps, of the opponent's fall and of the removal and replacement of the set of steps, and he is available to instruct his insurer's solicitors as to those things. The opponent's injuries and the treatment he received for those injuries are known. Nield DCJ went further by saying: "A complicating factor, perhaps more so for the plaintiff than for the defendant – might be that the plaintiff might have had some pre-existing disability in his left shoulder following the injuries to his neck and left side chest suffered in the motor vehicle collision which occurred during April 1982 … notwithstanding his evidence that he had not suffered any injury to his left shoulder and that he did not have any problems with his left shoulder before his fall on 21 August 1996 …". 22 Mr Donaldson submitted that this approach is erroneous as it is not appropriate to measure prejudice by reference to the situation the claimant would have been in had proceedings been commenced immediately before the limitation period expired. He relied in this respect on the judgment of Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. I doubt for my part whether this submission is correct, having regard to the precise terms of s 60E(1)(b). 23 In considering this matter as a whole, in any event, it is significant that there is no evidence that the delay in question has caused the claimant any actual prejudice. The claimant adduced no evidence of actual prejudice, in particular, in regard to any possible difficulties in proof of pre-existing disabilities. In the particular circumstances of this case I do not think that the presumptive prejudice relied on by the claimant is of significant weight. In the circumstances I would not uphold the claimant's third argument. 24 The claimant brought his application for leave to appeal out of time. The period in question was not large and was satisfactorily explained. I would extend time, but for the reasons I have expressed I will dismiss the application for leave to appeal with costs. 25 MASON P: I agree. 26 SANTOW JA: I agree. 27 MASON P: The orders of the Court will be as indicated. ********** Last Modified: 08/18/2003 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.