Miles v Zurich Australia Insurance Limited [2007] NSWSC 280

New South Wales Supreme Court

CITATION : Miles v Zurich Australia Insurance Limited [2007] NSWSC 280

HEARING DATE(S) : 27/03/2007

JUDGMENT DATE : 30 March 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The time for the bringing of these proceedings is extended up to and including 10 April 2006. The question of costs is reserved.

CATCHWORDS : Extension of time to commence proceedings - explanation for delay and prejudice - presumptive prejudice - deliberate decision - change in plaintiff's circumstances - just and reasonable to make an order.

LEGISLATION CITED : Limitation Act 1969 (NSW)

CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207

PARTIES : Jason Miles Zurich Australia Insurance Limited

FILE NUMBER(S) : SC 20282/06

COUNSEL : Mr M.J.Cranitch SC with Mr D.J. Hooke (Pl) Ms T.A. Berberian (Def)

SOLICITORS : Beilby Poulden Costello (Pl) Wotton & Kearney Insurance Lawyers (Def)

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

30 MARCH 2007

20282/06 Jason Miles v Zurich Australia Insurance Limited

JUDGMENT 1 HIS HONOUR: On 10 July 2002, the plaintiff suffered serious personal injury (he is now a paraplegic) in an accident (the accident). He was then employed by Ace Semi-Trailers (the employer) as a truck and trailer motor body builder. He contends that he was then working pursuant to directions from Paul James Scott (who was an employee of PJS Fabrications Pty Limited). I shall refer to this company as PJS. 2 PJS has been deregistered. The defendant is its insurer. 3 The plaintiff remained in employment with the employer until 10 March 2006. He was then retrenched. 4 On 11 April 2006, he commenced proceedings claiming damages in respect of the personal injury against the defendant. The defendant has raised the expiry of the relevant limitation period as a defence to the plaintiff's claim. 5 On 21 September 2006, the plaintiff filed a Notice of Motion in this Court. It seeks an extension of time pursuant to s60C of the Limitation Act 1969 (NSW) (the Act). This provision enables an extension of time if the Court decides that it is just and reasonable to do so. 6 Section 60C is governed by the provisions of s60E. Under that latter provision, the Court is required to have regard to all the circumstances of the case and, to the extent that they are relevant to the circumstances of the case, to have regard to the matters specified therein. 7 In the present case, there seems to be a consensus that the relevant matters are the length of and reasons for delay and presumptive prejudice. 8 The plaintiff has sworn an affidavit. His solicitor (Mr Scott Hall-Johnston) has also sworn an affidavit. The defendant has not placed any material before the Court. 9 It is unnecessary to repeat much of what appears in the affidavits. In substance, the plaintiff sought advice at an early stage. The advice that was given is set forth in his affidavit and the annexures thereto (being letters of advice). 10 The advice had regard to certain matters (including that he was then in employment and that his workers compensation rights were then seen to be of more importance). 11 It is conceded that a deliberate decision was made not to bring proceedings for common law damages. This decision was made in a context of awareness that there was a limitation period. The letters of advice had made clear to the plaintiff that any claim for damages had to be commenced within three years of the date of the accident (no later than 10 July 2005). 12 The case for the plaintiff is that a change of circumstances took place when he lost his employment. In March 2006, he sought further legal advice. He was informed that if he had been sacked, there was a belief that he had a good claim for damages and that he could ask the Court for an extension of time to pursue that claim. 13 For the purposes of these proceedings, it has been conceded that the plaintiff has a prima facie case on the issue of liability. It is also conceded that the delay has not occasioned any actual prejudice. 14 The defendant resists the application largely on the basis that the explanation for delay is less than satisfactory and that there is presumptive prejudice. 15 The defendant has taken the Court to the cases of Itek Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In respect to the former case, emphasis has been placed on what was said by Ipp A-JA at paragraphs 89-91. In respect of the latter case, the Court has been taken to well known passages in the judgment. 16 The plaintiff bears the onus of satisfying the Court that it should decide that it is just and reasonable to make an order. In my view, the plaintiff has discharged that task. 17 The claim has been brought about eight months outside the limitation period. In my view, the delay has been satisfactorily explained. Whilst a deliberate decision was made to allow the limitation period to expire, it was not made in a context of carelessness. The plaintiff had promptly sought advice and had acted in accordance with the advice that was given to him. In my view, the loss of his employment brought about a change of circumstances. It was this change of circumstances that occasioned a further decision, on advice, to bring the present proceedings. 18 The making of a deliberate decision to allow a statutory limitation period to expire is regarded by the authorities as no more that a powerful factor against the grant of leave. The impact of the making of such a deliberate decision has to be considered in the circumstances of the particular case before the Court. 19 There may be some presumptive prejudice. However, I do not see it as being of great significance in the circumstances of this case. In making that observation, I have had regard to a number of matters. However, I will make particular mention of only one of them. 20 The workers compensation insurer of the employer has also brought proceedings against the defendant. A copy of the Amended Statement of Claim is in evidence. It pleads similar particulars of negligence to those that are pleaded in the process relied on by the plaintiff. 21 In this particular case, I have come to the decisions that it is just and reasonable to make an order and that an order should be made. 22 The time for the bringing of these proceedings is extended up to and including 11 April 2006. The question of costs is reserved. **********