District Court New South Wales Medium Neutral Citation: Booth v AE & EM Kiel Pty Ltd [2012] NSWDC 71 Hearing dates: 17 May 2012 Decision date: 21 May 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The notice of motion filed by the defendant on 6 November 2011 seeking dismissal of the plaintiff's statement of claim pursuant to UCPR Pt 13 r 13.4(b), is dismissed; 2.Paragraph 8 of the defence filed on 8 February 2011 pleading a limitation bar, is struck out; 3.The defendant is to pay the plaintiff's costs of the dismissed motion; 4.Exhibit "A" may be returned; 5.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - whether statement of claim should be struck out as disclosing no reasonable cause of action - timing of discoverability of damage of sufficient severity to justify plaintiff commencing proceedings - whether defence pleading limitation bar should be dismissed Legislation Cited: Civil Liability Act 2002, s 16 Limitation Act 1969, s 50C, s 50D Uniform Civil Procedure Rules 2005, r 13.4(b) Cases Cited: Baker Morrison v State of NSW [2012] NSWCA 35 State of NSW v Gillett [2012] NSWCA 83 Category: Procedural and other rulings Parties: Garnett Hume McLeod Booth (Plaintiff/Respondent) AE & EM Kiel Pty Ltd (Defendant/Applicant) Representation: Ms K Balendra (Plaintiff/Respondent) Mr G Niven (Defendant/Applicant) Cater & Blumer (Plaintiff/Respondent) Mills Oakley Lawyers (Defendant/Applicant) File Number(s): 2010/412490 Publication restriction: None Judgment Notice of Motion 1This is a notice of motion filed by AE & EM Kiel Pty Ltd, the applicant defendant, pursuant to Pt 13 r 13(4)(b) of the Uniform Civil Procedure Rules 2005, seeking dismissal of the statement of claim filed by Mr Garnett Booth, the plaintiff respondent, in respect of a claim for personal injury arising from occupation of premises. The claim by the defendant is that the plaintiff's proceedings are statute barred. 2The parties agreed that if the defendant's notice of motion failed, this would necessitate striking out of paragraph 8 the filed defence, which pleaded the limitation bar. Evidence 3The affidavit sworn by the plaintiff on 17 May 2012 was read, as was the affidavit sworn on 5 March 2012 by his solicitor, Mr Campbell Jeremy. The plaintiff was the only witness who was required for cross-examination. The only exhibit tendered at the hearing of the motion was a report of accident form lodged with the Carrathool Shire Council by the plaintiff on 19 August 2005: Exhibit "A". Issue 4In essence, the only issue calling for decision on the motion was whether, prior to the expiry of the limitation period on 19 August 2008, the plaintiff's cause of action was "discoverable", within the meaning of s 50C of the Limitation Act 1969. Facts 5On 18 August 2005, the plaintiff tripped over a lopped tree branch located on a pathway around the Goolgowi Motel occupied by the defendant. In the resultant fall, the plaintiff, who was then a retired grazier aged 70 years, suffered bruising to his left hip. The tree branch was the residue of some earlier land clearing activities and the plaintiff apparently did not see it at the time he tripped over it. The provisions of the Civil Liability Act 2002 apply to those events. 6The plaintiff reported the incident to the local council the next day: Exhibit "A". 7On 13 December 2010, the plaintiff filed his statement of claim alleging there had been negligence on the part of the defendant arising from alleged breach of the duty of care owed by the defendant as occupier of the premises where the plaintiff's injury occurred. On 8 February 2011, the defendant filed an unconditional appearance, and on the same date filed a defence, which, by paragraph 8, pleaded that the plaintiff's claim was statute barred. 8On 6 November 2011, the defendant's notice of motion was filed seeking dismissal of the plaintiff's statement of claim. Initially, the defendant sought relief pursuant to UCPR Pt 12 r 12.7 which related to a want of due despatch in the progress of the proceedings. In the alternative, relief was also sought pursuant to UCPR Pt 13 r 13.4(b), arguing that the proceedings disclosed no reasonable cause of action. At the hearing of the motion, the defendant abandoned reliance on the relief claimed pursuant to UCPR Pt 12 r 12.7, and relied solely upon the relief sought pursuant to UCPR Pt 13 r 13.4(b). 9The relevant events that occurred between the date of injury and the filing of the statement of claim can be summarised in the paragraphs that follow. 10Based on his occasional past experience of injury whilst living in a remote area, the plaintiff initially thought the pain that resulted from his injury would "heal up" and resolve with time. In the period between the time of his injury and 5 August 2010 the plaintiff continued to experience increasing levels of pain and discomfort, and restriction of movement in his left hip which had been bruised in the fall in question. I accept his evidence that this was his reasonable expectation. 11The plaintiff presented as a stoic individual with an apparently high pain threshold, who was prepared to put up with a certain amount of pain in the expectation it would eventually resolve. Accordingly, in that period, he did not seek out initial medical assistance, and his levels of discomfort did not initially interfere with his activities of daily living. 12Eventually, in mid-2007 the plaintiff experienced progressively worsening pain in his left hip. He consulted an acupuncturist and he also obtained chiropractic treatment for his left hip. The plaintiff had also been seeing a general practitioner for other significant concurrent health conditions, as is evident from the medical reports attached to the affidavit evidence. 13In about April 2008, the plaintiff consulted his general practitioner with concerns over his increasing level of discomfort in his left hip. An x-ray of the left and right hips and his groin area performed on 22 April 2008 revealed the location of multiple surgical clips from previous vascular surgery to the right groin, with degenerative changes seen in both hip joints, the left hip appearing to be worse than the right. 14On 30 June 2008, the plaintiff was examined by an orthopaedic surgeon at the referral of his general practitioner. That orthopaedic surgeon advised the treating general practitioner that the plaintiff was suffering from disabling arthritis in his left hip. A hip replacement procedure was suggested but on orthopaedic advice, further consideration of this was deferred until at least the following year as the plaintiff's other and unrelated medical problems were considered to be a priority, and the management of those problems required clarification before surgery could be contemplated. 15In those events the plaintiff did not seek legal advice concerning his left hip problems, although he continued under occasional medical review. The plaintiff is functionally illiterate. No proceedings were commenced by him within 3 years of 18 August 2005 in respect of the left hip injury. 16On 31 March 2010, which was well after the limitation period had expired, a progress x-ray taken of the plaintiff's left hip revealed it to have been affected by severe degenerative disease that had progressed since the previous x-rays that were taken on 22 April 2008. At that time, the treating orthopaedic surgeon recommended to the plaintiff that he undergo a hip replacement procedure. Arrangements were then made for this to occur. 17On 5 August 2010, some 2 weeks before undergoing the recommended hip replacement surgery, the plaintiff attended the office of his solicitor concerning instructions for a will. On that occasion, he disclosed to his solicitor that he had been injured in the subject accident. The plaintiff's solicitor then embarked upon a course of enquiry in order to ascertain whether proceedings should be commenced. 18On 19 August 2010 the plaintiff underwent a left hip replacement procedure at a total cost of $25,535. 19It is unnecessary to set out the detail of the liability and damages investigations carried out by the plaintiff's solicitor as that evidence was not challenged and there was no suggestion other than that the plaintiff's solicitor had, once consulted, acted properly and promptly in order to gather the information that was necessary in order to commence these proceedings. Submissions and applicable legislation 20A party may apply to have proceedings dismissed if no reasonable cause of action is disclosed in the pleadings: UCPR r 13.4(b). 21In this case, the defendant's application for dismissal of the plaintiff's proceedings is based upon the claimed operation of the limitation bar in that it is argued that the plaintiff's proceedings are not maintainable as they were filed more than 3 years after the plaintiff discovered that he had a cause of action: s 50C(1) of the Limitation Act 1969. 22On that basis, the defendant argued that no reasonable cause of action has been disclosed by the plaintiff's statement of claim because during the 3 years following his injury, the plaintiff either knew or ought to have known that he had a cause of action that he could have prosecuted in that time. 23In contrast, the plaintiff argued that within the meaning of s 50D(1) of the Limitation Act 1969, his cause of action was not discoverable until after the expiry of the 3 years from the date of his injury. 24The discoverability of a cause of action involves an understanding that the injury in question was sufficiently serious to justify a course of action that involved bringing an action, which in turn required the exercise of legal and medical expertise based on the availability of the appropriate information and advice: State of NSW v Gillett [2012] NSWCA 83 per Campbell JA at [131], (Young and Whealy JJA agreeing), approving Baker Morrison v State of NSW [2012] NSWCA 35, per Basten JA at [41]-[44]. 25These principles apply to the issue raised by the present notice of motion filed by the defendant. I now turn to the consideration of the issue calling for decision. Consideration 26The applicant defendant in a motion of this kind bears the onus of showing that the cause of action was discoverable before the expiration of the 3-year limitation period: State of NSW v Gillett, per Beazley JA at [26]. 27In support of the contention that the plaintiff's cause of action was discoverable within the 3-year limitation period, the defendant drew upon the combined effect of the fact of lodgement of the incident report form with the Carrathool Shire Council on 19 August 2005 bearing the plaintiff's acknowledged signature (Exhibit "A"), the plaintiff's awareness of how the incident occurred, his awareness of the fact that he had injured his left hip in the fall in question, together with his awareness of an increasing level of pain in his left hip region, including the fact that he had been in receipt of various treatments for that condition from a chiropractor, acupuncturist and advice from a general medical practitioner and a specialist orthopaedic surgeon. 28The defendant argued that all of those matters satisfied the requirements for discoverability identified in s 50D(1) of the Limitation Act 1969. 29The plaintiff undoubtedly knew that it was the presence of the lopped tree branch across the pathway that led him to trip over and fall, thus satisfying the requirements of s 50D(1)(a). 30It is also apparent from the written answers to questions within Exhibit "A" that was completed on behalf of the plaintiff due to his illiteracy, that the plaintiff said he had tripped due to some trimmed branches being left on the pathway. This raises an implication of alleged fault on the part of the party responsible for those branches being left there, thus satisfying the requirements of s 50D(1)(b). 31Notwithstanding those matters, I am not satisfied that it has been shown that the plaintiff either knew or ought to have known within the 3-year limitation period that the injury from which he suffered as a result of the tripping incident was sufficiently serious to justify the bringing of an action on the cause of action raised for consideration by those circumstances, as required by s 50D(1)(c). My reasons for that view area as follows. 32First, having regard to the considerations identified by s 50D(2) and (3) of the Limitation Act 1969, it must be shown that the plaintiff took all reasonable steps to ascertain the seriousness of the injury in question. In that inquiry, it is permissible to have regard to the conduct of the plaintiff concerning subjective factors that influenced him at the time. 33Secondly, when the plaintiff's conduct is evaluated in that exercise, it is plain that he is a stoic individual of very few words. It seems to me that his reaction to his injury and the aftermath of that injury, including his delayed recourse to treatment was entirely appropriate to the circumstances and to the nature of the injury. In that regard, even though the injury consisted of only bruising, he took steps to lodge a complaint to the local shire council on a safety issue and he then waited for his bruising to resolve. In my view, absent a frank injury such as, for example, a serious laceration requiring suturing, or a fracture, the course adopted by the plaintiff was entirely reasonable. 34Thirdly, in accordance with his expectation that the bruising injury he received would resolve, consistent with his stoicism, he simply waited for resolution to occur. That too was a reasonable course for the plaintiff to take in the circumstances. 35Fourthly, when the plaintiff's injury-related discomfort failed to resolve over time and slowly got worse, he took steps by seeking out acupuncture, chiropractic treatment and advice from his general practitioner. This seems to me to have been a reasonable course for him to have taken, commensurate with the nature of the underlying problem. There was no evidence to suggest that more intensive treatment or advice was required in the circumstances. 36Fifthly, I consider that the plaintiff acted reasonably in following the advice of his general practitioner in having x-ray examinations, and tests, and also by consulting a specialist orthopaedic surgeon for evaluation and treatment. 37Sixthly, the plaintiff had other concurrent health problems that were a medical priority over the evolving left hip problems and orthopaedic advice was to the effect that active surgical treatment of the hip problems should be deferred until his other medical issues had been sorted out and clarified. That process took some significant time and it seems to me reasonable that the plaintiff accepted that advice and followed the course that was suggested to him. 38Seventhly, in those events, it was only after the plaintiff's left hip problems were later recognised to have significantly deteriorated so as to warrant surgical treatment, that it became apparent to the plaintiff that the effects of his injury had become sufficiently serious to justify the bringing of an action in the form of these proceedings. This became apparent to him after he took legal advice from his solicitor in the days before his hip replacement surgery. 39Eighthly, it seems to me that until the arrangements were made for an imminent hip replacement to be undertaken as a result of a worsening of his left hip condition, it was most unlikely that legal advice would have been to the effect that proceedings were justified having regard to the requirements of showing that the plaintiff's injury had to justify an assessment of non-economic loss of at least 16 per cent of a most extreme case before damages for non-economic loss could be awarded: s 16 of the Civil Liability Act 2002. 40In the foregoing events, I find that the plaintiff only discovered the effects of his injury were sufficiently serious to justify taking the present action after the expiry of the limitation period. Disposition 41Accordingly, the defendant's motion must be dismissed. Consequently, paragraph 8 of the defendant's defence filed on 8 February 2011 must be struck out. Costs 42The plaintiff is entitled to have the costs that he has incurred in resisting the defendant's motion paid for by the defendant. Such costs are to be paid on the ordinary basis unless a party shows an entitlement for some other order for costs. Orders 43I make the following orders: (1) The notice of motion filed by the defendant on 6 November 2011 seeking dismissal of the plaintiff's statement of claim pursuant to UCPR Pt 13 r 13.4(b), is dismissed; (2) Paragraph 8 of the defence filed on 8 February 2011 pleading a limitation bar, is struck out; (3) The defendant is to pay the plaintiff's costs of the dismissed motion; (4) Exhibit "A" may be returned; (5) Liberty to apply on 7 days notice if further orders are required; 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. Decision last updated: 21 May 2012