Muir v Franklins Limited[2000] QDC 303

CIVIL JURISDICTION

JUDGE SAMIOS

and

BRISBANE

DATE 05/10/2000

JUDGMENT

HIS HONOUR: This is an application by which the plaintiff in the action seeks an order that the period of limitation with respect to her claim be extended so that it expires on 23 October 1998. The plaintiff commenced these proceedings by Writ of Summons filed in the Supreme Court on 22 October 1998. Her claim endorsed in the Writ of Summons is for damages for personal injuries sustained on or about the 17 December 1992 occasioned by the negligence, breach of contract, and/or breach of statutory duty of and by the defendant, together with interest thereon and costs.

A Statement of Claim has been delivered and a Notice of Intention to Defend was filed in the Supreme Court on 26 August 1999. In the Notice of Intention to Defend the defendant pleads the plaintiff has no cause of action because the plaintiff has failed to commence proceedings within the time prescribed by the Limitation of Actions Act and therefore the action is Statute barred.

The plaintiff, who is now known by the surname Kelly, was born on 29 December 1956. On or about the 17 December 1992 she was shopping at the Franklins supermarket situated at Kawana Shopping World on the Sunshine Coast. At about 4 p.m. in the afternoon she was intending to purchase some muesli bars. There were two young male staff members of Franklins working in the vicinity of where the muesli bars were kept on the shelves. One of these male employees was standing on a mobile trolley stacking boxes of products on top of the shelves. The other young male employee was standing on the ground, throwing the boxes of stock up to the employee who was standing on the trolley.

The plaintiff leant in beside the trolley to obtain a packet of muesli bars from the shelves. As she did, one of these males threw another box of stock up to the other employee. The box fell and struck the plaintiff on the top of her head, which forced her neck downwards and backwards. The plaintiff says that the box was reasonably heavy and it dropped from a height of about five feet or more. The plaintiff was dazed.

One of the male employees apologised to her and followed her down the aisle. The plaintiff felt quite disorientated and shocked. She started to feel other symptoms from this incident. She saw an employee of Franklins at the checkout. That employee's name is a Tina Wilson. She was remotely acquainted with Tina Wilson. By this time, the plaintiff started to cry from the trauma and pain. The plaintiff told Miss Wilson what had happened and she was told that she should report the accident to a supervisor. She was then directed to a supervisor, who took her into an office.

The supervisor gave her some assistance and she was then asked to explain what happened and this was written out in a book. The plaintiff swears she provided this person with all the necessary details. She says the employees, who were doing the stacking, were called into the office for her to identify them and to give their account of what happened. The boys were asked to apologise, which they did, and then they left.

The plaintiff says the weight and dimensions and the contents of the box were recorded in a report. She also believes the name of these employees were also entered in the report. The plaintiff has made inquiries to ascertain the name of the supervisor and the names of these employees from Miss Wilson. However, she could not remember their names.

Following this accident, the plaintiff says she suffered from pain and discomfort in her neck and shoulders accompanied by pins and needles in her arms and finger. She suffered from the onset of headaches immediately after the accident and these headaches continued frequently. The plaintiff swears that, as far as she can recall, the first time she sought treatment for her injuries was from a Mr Petland, who is an acupuncturist and natural remedial masseur and therapist.

The defendant engaged a private investigator to look into the circumstances of the alleged incident. From inquiries he made, Mr Petland provided to him a letter, which is Exhibit 1 to Mrs Kelly's affidavit. In this letter, Mr Petland has stated that on 22 December 1992 the plaintiff presented to him with headaches, the sensation of pins and needles and a sore neck after a blow on the top of her head. This report shows he treated her forehead ache and shoulder and neck related problems on a number of dates, five times in 1993 and 10 times in 1994 and once in 1995.

The plaintiff states that some months after the incident occurred, and the headaches had still not subsided, she telephoned a solicitor, whom she believes to be from Kruger Law, to inquire whether or not she should take legal action. She was advised by the solicitor that she would need to obtain medical evidence of the injuries sustained before proceeding any further. The plaintiff says, as she believed she had only sustained soft tissue damage to her neck and shoulders, which no-one else could see, she did not take the matter further at that stage. She never made an appointment to see this or any other solicitor and never received any advice about the claim, the limitation periods or procedures at that time.

The plaintiff states, as the pain continued, she subsequently sought many treatments, as and when she could afford them, from various chiropractors, physiotherapists and masseurs. She says none of them requested x-rays or conducted further investigation as to the cause of her headaches and neck pain. She states they treated the symptoms only, which only gave her short term relief. She did see a Dr Diana Minuskin for her headaches. She first saw that doctor regarding headaches on 10 September 1993. However, Dr Minuskin's advice to the plaintiff was that the headache could be due to hormonal problems associated with taking the contraceptive pill, hence the plaintiff was referred to the Caloundra Hospital for a tubal ligation so she could stop taking the pill. The plaintiff went ahead with the operation in the hope of putting and end to her headaches. However, the headaches persisted.

The plaintiff then consulted a naturopath masseuse at Currimundi by the name of Geoffrey Henry. She states that he told her that he thought there was something quite wrong with her neck and suggested she seek further medical advice. When the plaintiff was cross-examined upon the contents of her affidavit, she agreed that she saw Mr Henry for the first time on 28 February 1996. However, it would appear from the evidence that she continued to see him right up until the 3 July 1997. Regarding the advice that he thought there was something seriously wrong with her neck, she said that was not his advice when she first saw Mr Henry. It was at some stage later in that period that she was given his view regarding her neck.

In fact, regarding the pins and needles sensation in her neck and shoulder, the plaintiff said, during cross-examination, that that had settled and had not recurred until about 1997 or 1998 when she started to get the pins and needles again. The plaintiff states that she then consulted Dr Tan at Caloundra on 9 October 1997. He sent her for x-rays, which were carried out on 10 October 1997. The plaintiff states she then returned to Dr Tan on 13 October 1997 with the x-rays and he informed her the x-ray had indicated there was a problem with two of the vertebrae in her neck, in that they were crushed. The plaintiff adds that presumably Dr Tan meant that the vertebrae were crushed together, which could be causing all the pain in her neck, head and shoulder. The plaintiff asked Dr Tan what could be done to remedy the problem with her vertebrae. She states Dr Tan advised her that he would need to send her to an orthopaedic specialist, whom he presumed would order an MRI scan showing a much clearer image of the full extent of the damage to her neck. She states Dr Tan told her he could not order an MRI scan himself as he was only a GP and was not permitted to do so due to the cost.

The plaintiff states Dr Tan could not fully assess the extent of the damage to her neck for this reason, but went on to say, if the damage was severe enough, the specialist may recommend surgery. The plaintiff states subsequently, when she left Dr Tan's surgery on 13 October 1997, she believed she had two crushed vertebrae and would require surgery, based on her own assumption that her injury was severe, given the extent of pain she was now enduring on a daily basis.

A report from Dr Tan is Exhibit 3 to the affidavit of Mr Christensen filed herein on 23 December 1999. In Dr Tan's report he states he saw the plaintiff on 9 October 1997 for ongoing headaches. She was taking a lot of pain-killers and because of the nature of the headaches an x-ray was requested. This revealed significant disc space narrowing at C6/7 level. Dr Tan states:

The plaintiff goes on to say in her affidavit that because she was greatly concerned as to how she was going to pay for an operation that she assumed she would require, she immediately contacted a solicitor whom she believed to be Kruger Law to ascertain if anything could be done to obtain financial assistance for the surgery she believed would ensue. She states the solicitor advised her if she had physical evidence of the injury she stood a good chance of a successful claim against the defendant and he estimated she could look at claiming around $100,000 to assist in medical costs, et cetera. The plaintiff states, though, that because she was very low key/shy by nature she was not comfortable with the idea of a lawsuit against Franklins, the defendant, so she decided to write to the defendant direct to ask for their assistance with medical expenses.

A letter to the defendant dated 15 October 1997 is Exhibit 3 to her affidavit. In this letter she repeats the circumstances she claims led up to her being struck on the head while shopping. Further, that she reported the accident and the details regarding the young men apologising to her are also mentioned in the letter.

The plaintiff states:

The plaintiff has explained in her affidavit that she did not mean to mislead anyone by making reference to the orthopaedic surgeon whom she had not, at that stage, in fact, seen. It was because she was going to go and see the orthopaedic surgeon and she wanted to move things along, she mentioned that in the letter.

Having observed the plaintiff and having formed a favourable impression of her during her evidence, including her cross-examination, I see no reason not to accept her statement to that effect.

In the penultimate paragraph of her letter she states she did not wish to make a huge fuss and sue the defendant for large sums of money. She asked for consideration for assistance with the increasing burden of medical expenses that her injuries from the accident have and apparently will continue to incur for sometime yet.

The plaintiff explains in her affidavit, and again for the reasons I have given, I accept her explanations regarding what appear to be errors in her letter dated 15 October 1997.

The plaintiff goes on to state that on 27 October 1997 she consulted with Dr Ho, an orthopaedic surgeon. He told her that she had ruptured discs in her cervical spine at levels C5/C6 and C6/C7. He told her that while she has a very painful affliction, surgery was an option he would not recommend at that stage due to the high risk/low success rate of an operation of that nature. Dr Ho told her that she would have to live with her condition for the rest of her life. He suggested she try physiotherapy and continue to take analgesic for her neck pain and headaches.

She states Dr Ho did not order an MRI scan of her neck. He did, however, order a scan of her right shoulder which he thought he may have been able to fix with surgery if the condition was severe enough. Dr Ho told her that if her condition worsened, then surgery would need to be considered. She subsequently returned to see Dr Ho for further treatment.

The plaintiff states that when she saw Dr Ho this was the first time that she saw a specialist and it was the first time that she had been told that she had a problem that she was likely to suffer from for the rest of her life. She states, apart from a suggestion by Dr Tan, it was not until this time that she was informed that she may have to have surgery in the future and it was only through her discussions with Dr Ho and the subsequent worsening of her condition that she realised that she had a very serious problem with her neck which may cause her problems in her ability to work in the future.

The plaintiff in her affidavit deals with her conversations with the investigator. On 29 September 1998, though, the plaintiff wrote a second letter to the defendant, as she had not had any further response and she was feeling frustrated with not being able to get any answers. She subsequently received a letter from the defendant dated 9 October 1998.

After she received this letter, on approximately 13 October 1998, the plaintiff decided to consult with a solicitor at Boyce Garrick Lawyers. On 15 October 1998, she arranged an appointment to see a solicitor on 21 October 1998. That was then the first date she actually saw a solicitor to obtain legal advice in relation to the accident.

In her affidavit, the plaintiff refers to how her condition became much worse in January 1998 and that between January 1998 and August 1998, she had taken several days off work due to her headaches and her painful condition. However, prior to 1998, the only other time she had taken off work that she could recall was three days off in 1996 when she suffered some severe symptoms at a time when she was having physiotherapy.

The plaintiff had worked until recently for about six years as a National Credit Controller with Pine Solutions Australia. Since swearing her affidavit for the purposes of these proceedings on 19 November 1999, she has tendered her resignation from that employment. She is now working for another company. The change of employment has resulted in a decrease in pay that she is able to take home from $500 per week to approximately $375 per week.

The plaintiff also swears that until early 1998 she had not had significant problems at work as a result of her condition. However, she has since suffered from severe headaches and these have been aggravated by her working for lengthy periods of time with her head down. The effect has been that she has been unable to concentrate and work effectively and, therefore, has had days off since.

The number of days that she has had to take off then since early 1998 have increased. Her pain has now intensified and she continues to take medications and seek treatment from practitioners such as acupuncturists, physiotherapists, chiropractors, naturopaths and masseurs when she can afford.

The plaintiff sets out her work history. Basically she has been employed as a receptionist, typist and bookkeeper.

The plaintiff's condition has been the subject of further investigation by other medical practitioners. She has seen Dr Redmond, a neurosurgeon. On 13 October 1998 he examined her. There was also a scan done on 5 November 1998 and Dr Redmond has offered an opinion regarding the plaintiff's condition. The plaintiff has also seen Dr Atkinson, a neurosurgeon on 17 February 1999. After discussing the situation with him, she decided to have an operation. This, in fact, was performed on 16 April 1999.

When cross-examined the plaintiff agreed that after seeing Dr Tan on 13 October 1997, she believed she had two crushed vertebrae and would require surgery and that at least she had physical evidence that could be seen in a Court of law to hang her hat on. The plaintiff described it as backing up her claim.

She also agreed she immediately contacted a solicitor and was given the advice by the solicitor that she could claim up to around $100,000 to assist with medical costs. The plaintiff repeated in cross-examination that notwithstanding the advice from the solicitor, she was not interested in taking the defendant to Court. She just wanted assistance in the operation. She did not want to sue them for the hundreds of thousands of dollars and go through all the stress and strain. She just wanted help with the operation that she thought she would have to have.

She said that is why she did not go further and consult the solicitor. She was not interested in suing. She just wanted help.

A considerable number of affidavits have been filed on behalf of the defendant for the purposes of this application. I do not propose to paraphrase the contents of those affidavits. The effect in general terms is that the defendant has made a considerable number of inquiries, from the sources available to it, with a view to trying to locate the report, if the plaintiff's statements are accepted, was prepared on the day of the incident and to identify those persons whom the plaintiff spoke to after the accident happened, who were in the employ of the defendant, and to identify the two males so that what they might be able to say about the alleged accident can be determined. The result being that, from the defendant's point of view, it has been unable, despite these comprehensive and considerable inquiries, to identify persons who may have been working at the store at the time the plaintiff alleges the accident occurred.

The power to extend the limitation period is provided for by section 31 subsection 2 of the Limitation of Actions Act. It provides:

Section 30 of the Act provides, for the purposes of section 31 subsection 2, interpretations for what are material facts and how to determine whether the material facts relating to a right of action are of a decisive character, and whether and in what circumstances a fact is not within the means of knowledge of a person at a particular time. Included in section 30 is a definition of appropriate advice which provides “In relation to facts means the advice of competent persons qualified in the respective fields to advise on the medical, legal and other aspects of the facts.” The approach to be taken to this application is a step by step approach, see Do Carmo v. Ford Excavations Pty Ltd (1984) 154 Commonwealth Law Reports 234 at 256. Also see the judgment of Thomas Justice of Appeal in Dick v. University of Queensland (1999) QCA 474 at paragraph 26.

The steps therefore are:

Clearly, the nature and extent of the personal injury caused is a material fact. The economic consequences as a consequence of the injury may also be a material fact. See Watters v. Queensland Rail (2000) QCA 51, Thomas Justice of Appeal, paragraph 23. I find that what the plaintiff was told by Dr Ho on 27 October 1997, which is set out in paragraphs 29 and 30 of the plaintiff's affidavit, filed hereon on 22 November 1999, were material facts. The next inquiry, though, is whether those facts were of a decisive character. In this respect, it was submitted by Ms Treston, who appears on behalf of the defendant, that, even though each application must be determined on its own facts, it is established by authorities that, where the newly discovered fact only goes to an enlargement of the prospective damages, it is not of a decisive character. A number of authorities were cited including Taggart v. Workers' Compensation Board of Queensland (1983) 2 Queensland Reports page 19. Also cited was the decision of Justice Dutney in Gilmont and Another v. The State of Queensland, unreported, Queensland Supreme Court No 2509 of 2000 given on 22 April 2000. In his Honour's decision, he referred to Sugden v. Crawford (1989) 1 Queensland Reports 683 where at 685 Mr Justice Connolly said:

Ms Treston submitted that the plaintiff's circumstances in this case is on all fours with the circumstances in Taggart's case. It was submitted that the plaintiff in this matter knew, on the 13, 14 and 15 October, all the facts that she would need to know to bring an action and that what Dr Ho told the plaintiff on 27 October 1997 merely went to an enlargement of the prospective damages. Hence, what the plaintiff found out on 27 October 1997 was not decisive. The plaintiff already knew what she needed to know and had discovered any facts that she needed to know before that point in time. Hence the 12 month period commenced to run against the plaintiff from about 13 through to 15 October 1997. As the plaintiff commenced her proceedings on 22 October 1998, the plaintiff is out of time and cannot be given the benefit of an extension of time. In my opinion, though, one cannot and should not, on this application, in the circumstances of this application, compartmentalise the evidence - that is, in my opinion, one cannot divorce what Dr tan advised the plaintiff on 13 October 1997, and the plaintiff's subsequent actions on 14 and 15 October 1997, from the fact that Dr Tan gave the plaintiff a referral to see an orthopaedic specialist.

The plaintiff swore that she asked Dr Tan what could be done to remedy her problem. She swore that his advice was she would need to see an orthopaedic specialist, whom he presumed will order an MRI scan showing a much clearer image of the full extent of the damage to her neck. He told her he would not order the scan himself, as he was only a GP and not permitted to do so due to the cost. Also, he could not fully assess the extent of damage to her neck for this reason, but went on to say that, if the damage was severe enough, the specialist may recommend surgery.

It is one thing to say that the plaintiff accepted in cross-examination that she finally had something to hang her hat on and another thing to ignore that the advice she had from Dr Tan was to see a specialist orthopaedic surgeon. In this context, I consider one must bear in mind that, in section 30 subsection 1 sub-paragraph (b), when determining whether material facts relating to a right of action are of a decisive character, the legislation goes on to provide, “If, but only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts” would regard those facts as showing the matters in sub-paragraphs 1 and 2.

In my opinion, the authorities that I have been referred to, including Taggart's case, refer to the notion of a reasonable man, being appropriately advised, would have brought the action on the facts already in their possession and the newly discovered fact merely goes to an enlargement of his prospective damages, the newly discovered fact could not be described as a material fact of a decisive character. The facts that the plaintiff already had in her possession, for the purposes of the submission made by Ms Treston, include the plaintiff having asked Dr Tan what could be done to remedy the problem and his advice being that she would need to see an orthopaedic surgeon and that he gave her a referral to see an orthopaedic surgeon. That referral was to take place within at a time not too far distant from the consultation with Dr Tan. Therefore, in my opinion, it still remains the question whether the plaintiff, if appropriately advised on what she had on 13, 14 and 15 October, would have brought an action on those facts already in her possession.

I consider the plaintiff, acting as a reasonable person and being appropriately advised, would not have brought an action on those facts already in her possession because of those reasons that I have mentioned - that is, because to commence litigation involves a number of considerations. In Wilmott's case Justice Dutney identified those considerations. I consider his Honour was not exhaustively identifying those considerations.

Here, in my opinion, one of those considerations would be that what the plaintiff had been told was from her general practitioner, who had referred her to an orthopaedic specialist. The appropriate advice I consider would have been that, because that referral would take place soon, that the reasonable person, notwithstanding the plaintiff's view about what had been revealed by Dr Tan, would wait for the outcome of the orthopaedic specialist's opinion. Therefore, I find that the material facts of a decisive character relating to the plaintiff's action were not within her means of knowledge before 27 October 1997. I find the plaintiff had taken all reasonable steps to find out the facts before that time.

On the evidence, the plaintiff had not had many days off work. She may have been seeing other persons, who were not medical practitioners, although it does not appear to me, on the evidence, it was consistent. She certainly saw a number of people but, as she said, no-one suggested to her that she make other inquiries or undergo surgery. When Mr Henry advised her there was something wrong, seriously wrong with her neck, it would seem that was some time before July 1997. Although there is some time before the plaintiff saw Dr Tan, the period is not, in my opinion, excessive. It is not excessive because of a view I formed of the plaintiff when I observed her while she gave her evidence.

I consider the plaintiff is a very obliging person who is quite laid back. She is also reasonably cheerful. To some extent that might have been a reaction to questions. It may be difficult to convey what I mean by that. I am not making a concluded view that she is always a cheerful person, but she showed a disposition that tended to show that she would not rush into things. That is something which seems to be consistent with all the evidence before me. Clearly, she has not rushed into things in the past. That is not against her and I consider that is in her favour and gives an explanation about why she may not have moved as quickly as some people might suggest she should. I consider that, while the test is a reasonable person, it also takes into account subjective elements surrounding a person and those elements are present with the plaintiff.

It was submitted that, even if I found that material facts of a decisive character was not within the means of knowledge of the plaintiff before 27 October 1997, that clearly the plaintiff knew of many other facts and circumstances from which it could not be concluded that she had only discovered the decisive fact after 27 October 1999. It was submitted the facts she found out were within her means of knowledge well before seeing Dr Ho. It was submitted that she was advised in early 1983, by a solicitor, to see a medical practitioner for medical evidence but she declined to do so. She also had numerous treatments from Mr Petland, Dr Minuskin, and she did not follow up solicitor's advice. She was advised by Mr Henry that there was something quite wrong with her neck but she did nothing and further that, on her evidence, she was in pain and debilitated and, having demonstrated herself as a person not afraid to seek treatment, there is no good basis for concluding that a proper investigation of her condition was not within her means of knowledge.

I do not accept that the facts discovered by the plaintiff when she saw Dr Ho were within her means of knowledge well before that date. The plaintiff may have sought advice. However, I consider it was reasonable for her, if she was not losing time off work to a significant extent, and was having periods where all the symptoms were not affecting her, that she would do exactly what she did from time to time. She was not losing income and was not faced with the prospect of surgery. Again, other persons might act differently, but that is not to say that it is unreasonable for the plaintiff to not have taken the steps it has been submitted she ought to have taken. All the circumstances are relevant. I do not accept that it could be expected of the plaintiff to have done anything differently than what she has done.

With respect to signs of the seriousness of the injury, and the extent to which one might have to take action to protect themselves, it is relevant that a person maintains their employment and is not facing the prospect of surgery. See Healy v. Femdale Pty Ltd Court of Appeal No 37 of 1993 judgment 9 June 1993.

Finally it was submitted by Ms Treston that even if the plaintiff were otherwise entitled to an extension of the limitation period, I would not exercise my discretion to do so because of the significant prejudice suffered by the defendant in all the circumstances. I was referred to Brisbane South Regional Health Authority in Taylor 1996-1997 186 CLR 541. The onus of satisfying the Court that the discretion should be exercised in favour of an applicant lies on the applicant. In discharge of that onus the applicant must establish the commencement of the application beyond the limitation period would not result in significant prejudice to the prospective defendant. See the judgment of Dawson J at page 544. Dawson J agreed with McHugh J that once the Legislature had selected a limitation period to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation. It is also stated by Toohey J and Gummow J at 547 there is an evidentiary onus in respect of the defendant to raise any consideration telling against the exercise of the discretion, but the ultimate onus of satisfying the Court that time should be extended remains on the applicant.

In proceeding as I do, of course, I am satisfied that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation.

If the plaintiff's version of events were to be accepted at trial, and there is at present no contrary version, it is inevitable she would demonstrate a breach of duty on the part of the Franklins' employees for which the defendant would bear vicarious liability.

Then with respect to prejudice, having considered all the evidence and the submissions, I am not satisfied that there is prejudice or sufficient prejudice.

I am satisfied the plaintiff has satisfied the onus that rests upon the plaintiff and that I ought to exercise my discretion in her favour.

It seems to me that all the efforts the defendant has gone to does tend to demonstrate it has the resources to place, at least before the Court, evidence that so far as the defendant can ascertain the incident did not occur, at least an argument which may then be accepted on that evidence. It also seems to me that it could not be concluded that the person Tina Wilson, who seems to have been, at least on the plaintiff's account, spoken to by her immediately after the alleged incident, is not available to confirm the plaintiff's version of events. It also seems that in terms of the defendant's records, the notification that the plaintiff gave of her intended claim in 1997 and thereafter by issuing the writ and delivery of the statement of claim would seem to have occurred at a time when the defendant's records, according to the defendant's evidence, ought to still have been available. There has come a point in time, on the evidence, of course, where the records would appear to have been destroyed. To that extent it seems that the defendant, although I do not wish to be unduly critical of the defendant, has, to some extent, acted against its knowledge of the impending claim by not obtaining the records, if they exist, before the destruction process took place. It also seems to be the case that if the plaintiff had commenced her proceedings just before the three years had expired and waited a further year before service, as she would have been entitled to do, that the position may have been reached that the defendant may not have had notice of the claim until about December 1996.

The defendant has not shown, in terms of prejudice, that its prejudice was any greater in October 1997 than it might have been in December 1996 or is any greater now than it would have been as at December 1996.

Medical opinions, of course, will be based at a point in time that is removed from the date of the alleged incident. The plaintiff's medical opinions might suffer from that aspect, as may the defendant's opinions.

However, balancing all matters up, I am satisfied that the plaintiff has discharged the onus in that respect. Therefore, I order that the period of limitation with respect to this claim be extended so it expires on 23 October 1998.

...

HIS HONOUR: With respect to costs, it has been submitted by Ms Treston of counsel for the defendant that the plaintiff has had to seek an indulgence that it was through the plaintiff's actions that she did not commence proceedings before the limitation period. It seems to me, though, Mr De Plater of counsel who appears for the plaintiff is correct in his submission with respect to costs, namely the plaintiff was unaware of a material fact of decisive character. That is a finding I have made. It seems to me on that finding that the proper course to follow is to reserve costs. It also seems to me it is proper to follow that course because the plaintiff's application was opposed. I am not suggesting for one moment it was unreasonably opposed, but having been opposed and the plaintiff having been successful, it then, in my view, tends to suggest that one ought to await the outcome of the proceedings so that the outcome may determine the costs on this application.

In those circumstances, I order that the costs of this application be reserved.

I should add that I recognise that by reserving the costs the effect under the new rules, as Mr De Plater of counsel has submitted, is that they would become costs in the cause. I presume that is subject to any other order made.

Is there anything further?

MR DE PLATER: No.

MS TRESTON: No.