Pilot v Commissioner of Police
[2008] QDC 41
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- Unreported Judgment
- Pilot v Commissioner of Police[2008] QDC 41
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Pilot v Commissioner of Police[2008] QDC 41
Pilot v Commissioner of Police[2008] QDC 41
DISTRICT COURT OF QUEENSLAND
CITATION: | Pilot v Commissioner of Police and Anor [2008] QDC 41 |
PARTIES: | BARBARA ANN PILOT Applicant AND COMMISSIONER OF POLICE First Respondent AND SUNCORP METWAY INSURANCE LIMITED Second Respondent |
FILE NO/S: | BD3626/07 |
DIVISION: |
|
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 6 March 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February 2008 |
JUDGE: | McGill DCJ |
ORDER: | Order that the period of limitation for an action by the applicant against the respondents in respect of an injury allegedly suffered by her in a motor vehicle accident on 19 May 2004 be extended so that it expires on 26 July 2008. Order that each party’s costs of the application be costs in the proceedings to be commenced. |
CATCHWORDS: | LIMITATIONS OF ACTIONS – Personal injuries – extension of time – whether material fact – whether within means of knowledge of applicant – discretion. Limitation of Actions Act 1974 s 30(1)(c). Carlowe v Frigmobile Pty Ltd [1999] QCA 527 – cited. Carter v Corporation of the Sisters of Mercy for the Diocese of Rockhampton & Ors [2001] QCA 335 – cited. Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 – cited. Dick v University of Queensland [1999] QCA 474 – cited. Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 – cited. Healy v Femdale Pty Ltd [1993] QCA 210 – cited. NF v State of Queensland [2005] QCA 110 – applied. Randel v Brisbane City Council [1984] 2 Qd R 276 – cited. |
COUNSEL: | G R Mullins and N Jarro for the applicant R D Green for the respondents |
SOLICITORS: | Boe Lawyers for the applicant Employed solicitor for the respondents |
- [1]This is an application for an extension of the limitation period under s 31(2) of the Limitation of Actions Act 1974. The applicant alleged that she suffered injury as a result of the negligence of a police officer on 19 May 2004, and that a material fact of a decisive character relating to the right of action was not within her means of knowledge until 26 July 2007. The application was opposed, on the ground that there was no material fact of a decisive character which was not within her means of knowledge after the commencement of the year last preceding the expiration of the period of limitation for the action.
- [2]There is evidence to establish the right of action apart from the defence founded on the expiration of the period of limitation; the applicant has sworn that on 19 May 2004 she was standing beside a police vehicle, a paddy wagon, remonstrating with the driver about his having placed in the wagon a man who was at the time her de facto husband, when the paddy wagon was driven forwards so that a wheel passed over her foot.[1] As a result she suffered significant injury to the left foot, involving fractures of the bone and disruption of the flesh so that some bones were exposed. She required hospital treatment and surgery, and alleges that there are continuing adverse effects of the injury. On the face of it that requirement is satisfied, and the contrary was not argued on behalf of the respondents.
Background
- [3]In order to understand some of the submissions made by the parties, and the setting under which the issue arose, it is necessary to set out the unusual background circumstances of this application. The applicant is 32 years of age, born on 6 December 1975, on Palm Island near Townsville, where she had lived for her entire life up to the time of the accident, and for some time thereafter.[2] Both her mother’s and father’s families come from Palm Island. She was educated on Palm Island to year 10, but does not display the ordinary consequences of a year 10 education; she has very limited ability to read and write. If she requires assistance with reading documents, she would get one of her aunties to do so. She has a four‑year‑old child by her de facto partner, who is in foster care, having been taken away because of an inability of the applicant to care for the child properly. She has never worked, and lived in a house on Palm Island with about a dozen other people, none of whom worked. Most of the people who live in the house drink alcohol a lot, and she has drunk alcohol a lot ever since she was a teenager.
- [4]On the night of the accident, she and her de facto had been fighting, and she went to the hospital for treatment to a lump on her head. When she came back from the hospital she found that her de facto had been placed in the back of the paddy wagon and she went and spoke to the police officer who was driving it, asking him not to take the de facto away. She said that the officer then drove the car forward and then braked and drove over her foot. She fell to the ground and screamed, and yelled out something like “Look what you did to my foot”. She could not walk but others helped her to the hospital, where she stayed overnight before going to Townsville for further treatment. She stayed in Townsville hospital for a week, after which she had a cast on her foot and had to walk using crutches.
- [5]There must have been some complaint to the police, or something which came to the notice of the police, either immediately after the incident or soon thereafter, because there was a police investigation into the incident, which, however, concluded that the applicant’s foot was not run over by the police vehicle. In the course of that investigation, an officer attempted to interview the applicant, who said that she did not want to answer questions and was not prepared to provide particulars about the allegation but did say that her foot was run over and the police drove off.[3] That was consistent with her maintaining that the injury had been suffered, but her not wanting to talk to police about the matter. The applicant says that that was her attitude at the time, though she has now no recollection of speaking to police in this way about the accident. She said she was scared of talking to police, that her involvement with police has been when she and her family and friends get into trouble for being too noisy or too drunk.
- [6]There was subsequently some further investigation into the matter conducted by officers of the Crime and Misconduct Commission. This came about because, some months after the accident, the applicant’s uncle died while in police custody on Palm Island. This led to considerable disturbances on Palm Island where the police officer who had been driving the vehicle that the applicant alleges ran over her foot was regarded as responsible for the death: p 7. There was subsequently a coroner’s inquest, in the course of which the applicant gave evidence, apparently because, for some reason, the coroner investigated the accident involving the applicant.[4] In connection with this, she spoke to some people from the CMC about the accident, with the assistance of an Aboriginal woman from the CMC who was there to provide support and assistance.[5] She said she found it very hard to speak in court while giving evidence, and that she was not represented by any lawyers when appearing before the coroner.
- [7]That the circumstances surrounding the accident were investigated at the coroner’s inquest seems to me of no particular significance, except that it shows that the first respondent at least was aware that there was an allegation that the applicant had suffered an injury in these circumstances, and that to some extent the circumstances surrounding the incident were the subject of some investigation. Indeed, one of the reports generated in the course of the earlier police investigation recognised the possibility of a civil claim for compensation during a period of up to three years after the date of the accident. It was not submitted on behalf of the respondents that they had suffered any particular prejudice as a result of the delay in this matter.
The applicant
- [8]It does not appear that the idea of making a claim for compensation ever occurred to the applicant herself. At some stage it was suggested to her by an aunt, but she did not know how to go about doing this, and did not really understand about insurance.[6] She knew that to make a claim she would need to see a lawyer,[7] but it does not appear that she ever saw a lawyer about this until 2007.[8] The applicant’s current solicitor was at the inquest when the applicant gave evidence, though she was not acting for her at that time.[9] She said that at the inquest the applicant appeared obviously distressed when giving evidence, and it was difficult to hear and understand her. The applicant was cross‑examined on her affidavits before me, and the same applied. She appeared visibly unhappy about being in the witness box at times,[10] and at one stage I dealt with another matter for a time to give her a break in giving evidence (p 13), although the cross‑examination was in no way aggressive or forceful.
- [9]This gave me the opportunity to make some assessment of her as an individual. It seemed to me that she was having difficulty concentrating, and that at times her mind would wander while she was answering a question, or she would answer the question by referring to something else, or otherwise in an unresponsive way. At other times I had the distinct impression that she was simply answering in a mechanical or automatic way, regardless of what the correct answer to the question would have been. This is also illustrated by the cross‑examination which occurred during the inquest, a transcript of which was put before me.[11]
- [10]For example, at p 853 while being questioned by counsel representing the police officer who was driving the vehicle at the time, she appears on the face of it to have agreed with a version of the accident which is quite different from the version with which she agreed on the following page, when being questioned by counsel representing two of her relatives, although in each case a series of propositions was put to her and she simply answered “yes”.
- [11]In these circumstances, I think it is necessary to treat with very great care anything that she said which was in the nature of a mere agreement with something which had been put to her, and which did not involve her actually giving information herself. Even where her answers fall into the latter category, I am not at all confident that the answers were always responsive, or that she had a clear idea of what she was being asked. It really was very difficult for counsel to obtain anything in the way of a coherent account about anything from her in the witness box. I do not think there was any deliberate evasiveness or prevarication on her part, but in these circumstances I have to be very careful about what evidence of hers I accept, and what weight I give to any I do accept.[12]
- [12]Obviously the applicant knew at the time of the accident that her foot had been injured, and that it had been injured by a police vehicle driven by a particular police officer. What she did not know was the identity of the vehicle,[13] and the name of the licensed insurer. It was submitted that until she knew the identity of the insurer she was not in possession of the minimum material facts on which to found a cause of action, because under the Motor Accident Insurance Act 1994 (“the MAIA”) the insurer must be included as a party to any action which she brought: s 52. The effect of that section is that an action cannot be brought in respect of an injury which was suffered as a result of a “motor vehicle accident” as defined in that Act unless it is brought against the insurer of the motor vehicle involved, as either the sole or a defendant.
- [13]In my opinion, this analysis is correct. Section 30(1)(a)(ii) of the Limitation of Actions Act 1974 provides that the material facts relating to a right of action include the identity of the person against whom the right of action lies. The effect of s 52 of the MAIA is that, in respect of an action on a claim arising out of a motor vehicle accident as defined in that Act, the right of action lies against the insurer, not against the owner or driver of the vehicle, although ordinarily the driver is also joined as a party to the action. But any judgment in the action can be given only against the insurer (subsection 52(4)), and it follows that the right of action, in cases to which s 52 applies, lies against the insurer. The identity of the insurer is therefore a material fact relating to the right of action.
- [14]I have no hesitation in finding, and indeed the contrary was not submitted, that the identity of the insurer was not in fact known to the applicant prior to the commencement of the last year of the period of limitation. Section 31(2)(a) speaks not of the actual knowledge of the applicant but of whether the material fact was not within the means of knowledge of the applicant. By s 30(1)(c):
“a fact is not within the means of knowledge of a person at a particular time if, but only if –
- (i)the person does not know the fact at that time; and
- (ii)as far as the fact is able to be found out by the person –
the person has taken all reasonable steps to find out the fact before that time.”
- [15]The fact was one which was able to be found out by the applicant; although the identity of the particular vehicle was not known to her, the information she had would have enabled the identity to be found out quite quickly. It may be that there was at the relevant time only one paddy wagon on Palm Island, but assuming that that was not the case, the first respondent would have had available records which would have revealed what vehicle it was, and when a notice of accident form was ultimately submitted by the solicitors for the applicant, on or about 28 August 2007,[14] the form had the registration details of the vehicle, which were ascertained by those solicitors within a month of their initially getting instructions, which first occurred on 26 July 2007.[15] It may be, of course, that all police vehicles have the same licensed insurer; I do not know. Even if that is not the case, it would not have been difficult for any solicitor retained by the applicant to take the appropriate steps to ascertain the identity of the relevant licensed insurer.
- [16]The difficulty for the applicant, however, is that she did not take any steps to consult a solicitor about this matter. It was not until July 2007 that she gave instructions to her present solicitors,[16] and the evidence suggests that even that was as a result of the initiative of someone else.[17] Prior to that time she had simply not consulted a lawyer at all about the matter. The applicant’s case is that, because of her special circumstances, it was not reasonable for her to have consulted a lawyer earlier than she did in relation to a potential claim for damages for the injury she had suffered. Those circumstances included her background of limited education, the circumstances of her life on Palm Island, the fact that she had no idea herself how to go about pursuing such a claim,[18] that she was reluctant to talk to lawyers or indeed anybody about the matter,[19] that she had no money to pay for a lawyer[20] and that lawyers were not readily available where she lived on Palm Island.[21]
- [17]It was also submitted that her longstanding fear of the police and desire not to be involved with them deterred her from doing something which she associated in her own mind with a claim against the police, and specifically the individual officer who was then driving the vehicle, and who was subsequently the subject of a good deal of hostility on the island. It was submitted that in this exceptional combination of circumstances, it was not reasonable for her to have consulted a lawyer about this matter earlier than she did. Because of this, there was not prior to July 2006 any other step which it was reasonable for her to have taken to find out the material fact, namely the identity of the insurer.
The authorities
- [18]It may be that different views have been expressed on what is required by way of reasonable steps at different times. In Castlemaine Perkins Ltd v McPhee [1979] Qd R 469, Connolly J, with whom the other members of the court agreed, adopted the test of reasonableness laid down in an earlier Victorian decision,[22] as an objective one to be applied to a person in the position of the plaintiff and with her background and understanding: p 472. Subsequently, however, in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Dawson J, with whom Brennan J agreed, said at pages 258‑9 of the corresponding provisions of the New South Wales Act, that it:
“Posits a subjective rather than an objective test. It is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man. And s 57(1)(e) provides that a fact is outside his means of knowledge if he does not know it and he has taken reasonable steps to ascertain it. The remarks of Lord Reed in Smith v Central Asbestos Co [1973] AC at p 530, made in reference to a similarly worded provision, are to the point:
‘In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with “the reasonable man”. Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.’
It is also to be noted that it does not matter what advice the appellant received. In fact, he sought advice and, it would appear, did not receive the advice which he ought to have been given. … What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense.”
- [19]The objective test was, however, affirmed by the Full Court of Queensland in Randel v Brisbane City Council [1984] 2 Qd R 276 at 278, 281, 285. In Healy v Femdale Pty Ltd [1993] QCA 210, on the other hand, the court in a joint judgment said at p 5:
“There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
- [20]In Carlowe v Frigmobile Pty Ltd [1999] QCA 527 the majority in a joint judgment said at [39]:
“The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact. This test has both subjective and objective elements. What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person.”
- [21]Statements to similar effect had been made by Thomas JA in Dick v University of Queensland [1999] QCA 474, at [30].
- [22]In Carter v Corporation of the Sisters of Mercy for the Diocese of Rockhampton & Ors [2001] QCA 335 Muir J (as his Honour then was) said at [32] that the test was an objective one as explained in McPhee (supra).
- [23]More recently, in NF v State of Queensland [2005] QCA 110 Keane JA, with whom the other members of the court agreed, said at [29]:
“It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of ‘all reasonable steps’, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b).”
- [24]His Honour added at [31]:
“Section 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case.”
- [25]As I said in JMC v Moore [2006] QDC 418, the distinction between the behaviour of a reasonable person with the background and understanding of the applicant for an extension of time, and the actual applicant, is perhaps a subtle one, and one which is unlikely to produce any difference in outcome in practice. I do not think it affects the outcome in this matter. Ultimately, this is an issue which will have to be resolved by the Court of Appeal, but for what it is worth I would respectfully agree with the approach adopted by Keane JA.
- [26]The basic purpose of the section is to relieve people from the consequences of the running of the limitation period where they are not aware of material facts of a decisive character relating to the cause of action in sufficient time. However, the legislature has not made the operation of the section depend simply on what the potential plaintiff actually knew, but has sought to restrict the scope of operation of the section by treating potential plaintiffs as if they also knew facts that they ought to have known. If one translates s 30(1)(c)(ii) from the negative, the potential plaintiff is to be treated as knowing a fact which that person would have known if that person had taken all reasonable steps to find out that fact. Because the test involves a consideration of what is reasonable, it involves an objective test, but it is an objective test applied to the particular person who is the applicant for the extension of time, the potential plaintiff. The question of whether that person has taken all reasonable steps should therefore be asked by reference to what was reasonable for that person, rather than a hypothetical person, though what was reasonable for that person is not of course the same as what that person thought it was reasonable to do; otherwise the test would be subjective.
Other issues
- [27]There was some argument during the hearing about whether the material fact was of a decisive character; but in my opinion when the relevant material fact is the identity of the party against whom the claim must be pursued, the material fact is necessarily of a decisive character.[23] No claim could be pursued without it, at least so far as litigation is concerned. It was submitted for the respondents that even in these circumstances steps could have been taken under the MAIA; but in my opinion, that is not a relevant consideration for the purposes of the operation of s 31(2) of the Limitation of Actions Act, except in the sense that this was another course which would have been available to the applicant, if properly advised, in order to ascertain the identity of the appropriate insurer so that an action could have been brought against that insurer in accordance with the requirements of the MAIA.
- [28]Plainly the applicant knew nothing about the requirements of the MAIA, or what steps could be taken under it, and the issue therefore comes back to the question of the reasonableness of her failing to take steps to obtain legal advice prior to the expiration of two years after the date of the accident, and indeed earlier than she did. That I think is the crucial question; whether lawyers, if consulted, ought to have taken steps to ascertain the identity of the insurer, or to have proceeded under the MAIA on the basis that the insurer was unknown, does not particularly matter. What this application really comes down to is the question of whether it was reasonable for this applicant to have failed to obtain legal advice in relation to her claim for damages for personal injury.
- [29]It was submitted that it was not necessary for the registration number of the vehicle to be identified prior to lodging a notice of accident claim form. That is true, although ordinarily a claimant or a claimant’s lawyer will use the knowledge of the registered number of the vehicle concerned as a means of ascertaining the licensed insurer of the vehicle, so as to find out to which insurer the notice of claim should be directed. A notice of claim form is to be given to the insurer: MAIA s 37(1). So far as the Limitation of Actions Act is concerned, however, what matters is whether the applicant had means of knowledge of all of the material facts necessary in order to enable an action to be brought. That I think follows from the fact that s 30(1)(b)(i) talks of “the bringing of an action on the right of action”, as does paragraph (ii), and by the fact that at the time when the relevant provisions of the Limitation of Actions Act 1974 were enacted, there was no MAIA, and the earlier legislation contained no provisions for pre‑litigation proceedings.
- [30]Further, the MAIA accommodates any extension of time under the Limitation of Actions Act in an appropriate way, by treating the limitation period as including the period as extended under Part 3 of that Act, where that is relevant: MAIA s 57(5). In my opinion, therefore, what matters is not whether some steps could have been taken under the MAIA, but whether the applicant knew all the material facts necessary for an action to be brought, which as I have explained includes the identity of the insurer. It follows that in my opinion that fact was a material fact, and a material fact of a decisive character.
- [31]It was submitted that as a result of her involvement in the coroner’s inquest the applicant had the opportunity to obtain legal advice; however, the persons dealing with the applicant at that stage were investigators from the CMC, and they were not an appropriate source of legal advice for her. There is no evidence that they gave her any. Any consideration of legal advice at that time would have been directed to the question of whether it was appropriate for her to have legal advice in connection with the inquest, and there was no particular reason to think that it was. I was not referred to any questioning in the course of her evidence at the inquest which suggested that she was at that time aware that it was appropriate for her to consult a lawyer in relation to any claim for compensation.
- [32]It was submitted that the applicant had had some contact with a lawyer in relation to another matter, when proceedings were taken, presumably in the Children’s Court, to obtain an order dealing with the care and protection of her daughter, which resulted in the relevant department having control of that child.[24] The applicant did consult a lawyer in connection with those proceedings, who apparently represented her before the Children’s Court, and it was submitted that this demonstrated that she had a capacity to obtain legal advice if she wanted to do so, so that it was reasonable for her also to have obtained legal advice in relation to a claim for compensation in respect of the injury suffered in the accident.
- [33]The effect of the applicant’s evidence about this under re‑examination was not that she had specifically consulted a lawyer in relation to this; rather she accompanied two cousins who were in a similar situation in relation to their children, and it appears that she came to be talking to the lawyer as a result of something done by one or both of the cousins, rather than on her own initiative.[25] When asked about this in the witness box, it appeared that her position was simply that the lawyer was supposed to be helping her in relation to keeping her daughter, and she really did not seem to make the connection between that lawyer providing assistance in that respect and a lawyer providing assistance with a claim for damages for personal injuries.
- [34]There could be few people in the community of whom it could be said that it was not reasonable to expect that they would take as basic a step as obtaining legal advice in order to investigate or pursue a potential claim for damages for personal injuries. Nevertheless, it was submitted on behalf of the applicant that, because of the tragic combination of her background and circumstances, she represented an exceptional case, where it was not reasonable for her to have taken the initiative of consulting a lawyer.[26] She had had a singularly deprived background and upbringing, and had since then been surviving at a very basic level, probably most of the time numbed by alcohol.
- [35]She was living in a relatively remote community, where authority figures were viewed with hostility and suspicion, and where there was in practice little practical access to legal advice other than in relation to criminal matters, where no doubt it is provided more or less automatically when needed.[27] She was naturally shy and quiet and not disposed to show initiative in any respect, and reluctant to discuss what had happened to her. My impression of her in the witness box was of a person who had really very little capacity to manage her own affairs other than at the most basic level, and I find quite plausible the idea that she really lacked the initiative to obtain legal advice in relation to the claim.
- [36]This is not a case where any reluctance to become involved in litigation in relation to the plaintiff’s injury was the product of a psychiatric condition which arose from that injury. Nevertheless, it follows from comments made by Keane JA in NF (supra), expressing disagreement with something that I had said in an earlier matter, Hopkins v State of Queensland [2004] QDC 21, that the applicant’s mental state is relevant to what it was reasonable for her to have done. In Hopkins I said in relation to the question of means of knowledge, at [41]:
“[Section 31] is essentially concerned with facts which were in a practical sense not available to the applicant in time. It is not, it seems to me, concerned with the situation where an applicant who was in possession of the important facts simply did not want to pursue the matter, for whatever reason. I do not think that the situation is changed by the fact that the desire not to pursue the issue is in a sense caused by the psychiatric injury itself. … A ‘reasonable person endowed with the knowledge and experience of the plaintiff’ is different from a reasonable person suffering the same psychiatric condition as the plaintiff.”
- [37]In NF, Keane JA expressed disagreement with that approach at [30] and [31], because of the proposition that the relevant issue was what might reasonably be expected of the applicant in the particular case. Accordingly, it is concerned with the applicant with whatever psychiatric difficulties she faces. In the present case, it is not alleged the applicant suffered any psychiatric injury as a result of anything done in this accident, but it seems to me that the approach adopted by the Court of Appeal in NF (supra) requires an assessment of what was reasonable for the applicant to do, given the actual mental state of the applicant at the time, and any difficulties that she experienced as a result of that.
- [38]There is a distinction between a person who chooses, for whatever reason, not to take action to enforce that person’s rights, and one who, because of a psychiatric condition or other mental infirmity, or indeed for any other reason, lacks the necessary initiative to take appropriate steps to pursue a claim, or for that matter has so little understanding of the way society functions as not to be able to obtain legal advice in order to pursue a claim for damages in respect of personal injuries. It would be unsurprising if the Limitation of Actions Act did not prevent late claims from being pursued by them or on their behalf; such people are in a situation which is close to that of a person against whom time does not run because of a disability in the form of unsoundness of mind, pursuant to s 29 of the Limitation of Actions Act 1974.
- [39]It was not submitted in the present case that it was not appropriate for me to make an order under s 31(2) on the ground that the limitation period had not expired for this applicant because of the operation of s 29, and the applicant’s case was not advanced on the basis that that section applied. Nevertheless, if the plaintiff’s mental state had amounted to a disability for the purpose of s 29 she would not need an extension of the limitation period, so it is unsurprising that a person whose mental state must approach that of such a person might qualify for an extension under s 31(2), because in the light of her mental state, and bearing in mind her background and condition of life, it would not be reasonable for her to take even so basic a step as obtaining legal advice on her own initiative in order to pursue a claim for damages for personal injury.
- [40]No doubt people in such a position will be rare, and such cases will be exceptional. But in all the circumstances, in the light of all the evidence before me, and having had the benefit of seeing the applicant in the witness box, I am persuaded that this is a case which falls into that category. I accept the submissions for the applicant. I find that it was not reasonable for this applicant to have taken legal advice in relation to her claim, something which, had she done so, would have resulted in her finding out the material fact of a decisive character, namely the identity of the insurer against whom the claim was to be pursued. Accordingly, that fact was not within her means of knowledge prior to the time when she did come to have the benefit of legal advice, in July 2007. Accordingly, all of the requirements of s 31(2) are satisfied, and the limitation period may be extended so that it expires at the end of one year after the date on which the material fact of a decisive character came to be within her means of knowledge. There was no argument about whether, if the application was successful otherwise, the appropriate date was 26 July 2008.
- [41]That enlivens a discretion, but as I have already said it was not submitted that the respondents were prejudiced by the delay. It is clear that the applicant had asserted that she had suffered an injury and that the driver of the police vehicle was responsible for it immediately after the injury was suffered, and the nature and extent of the injury would have been available at a reasonable time thereafter. The matter was investigated, and the fact that the conclusion was reached that the plaintiff had not suffered such an injury in the way now alleged does not mean that the first respondent did not have the opportunity of investigating the matter at the time. No particular prejudice was relied upon on behalf of the respondents, nor was any argument directed to the issue of whether the discretion should be exercised against the applicant, assuming it arose; the argument was simply that the discretion did not arise. It is clear from what happened at the coroner’s inquest that by then there had been a good deal of investigation of the nature and extent, and possible causes, of the applicant’s injury. The amount of the delay was not great; the limitation period expired anyway only in April 2007, about four months before the notice of accident was given under the MAIA. In all the circumstances, I think it is appropriate to exercise the discretion in favour of the applicant.
- [42]I therefore order that the period of limitation for an action by the applicant against the respondents in respect of an injury allegedly suffered by her in a motor vehicle accident on 19 May 2004 be extended so that it expires on 26 July 2008. The applicant also sought in the originating application an order staying proceedings pending compliance with the requirements of Part 4 of the MAIA; however, the only order presently sought was an order under the Limitation of Actions Act extending the limitation period; no argument has been advanced in support of any order under the MAIA.
- [43]With regard to the question of costs, sometimes in matters of this nature costs do not follow the event, on the basis that the applicant is seeking an indulgence from the court. On the other hand, it is always a matter for the respondent whether or not an application will be opposed. In the present case the application was opposed, and no doubt the bulk of the costs were incurred because the application was opposed. All that was sought in the application was an order that costs be in the cause. In those circumstances, I think there is sufficient reason to depart from the ordinary principle that costs should follow the event. I therefore order that each party’s costs of and incidental to the application be that party’s costs in the proceeding to be commenced.
Footnotes
[1] Affidavit of applicant filed 17 January 2008 paras 12-15.
[2] For this and the rest of the information about her, see affidavit of applicant filed 17 January 2008, except as stated.
[3] A copy of the police officer’s report into the investigation which contains this is part of Exhibit PM4 to the affidavit of Morreau filed 31 January 2008.
[4] Affidavit of Morreau filed 31 January 2008 Exhibit PM2, transcript of the applicant’s evidence at the inquest.
[5] Affidavit of applicant filed 17 January 2008 para 17; p 27.
[6] Ibid paras 26, 27; p 15.
[7] Ibid para 28.
[8] Ibid para 33.
[9] Affidavit of Morreau filed 31 January 2008 para 13.
[10] See for example p 16 line 46.
[11] Affidavit of Morreau Exhibit PM2.
[12] I do accept that part of her evidence which is cited in these reasons for factual matters.
[13] Affidavit of the applicant sworn 4 February 2008 para 4.
[14] Affidavit of Morreau filed 31 January 2008 para 23.
[15] Ibid para 22; the information was obtained from records of the inquest.
[16] Affidavit of applicant filed 17 January 2009 para 33.
[17] Ibid para 34. See also affidavit of Morreau para 21.
[18] Ibid para 24. She had never made a similar claim: affidavit of the applicant sworn 4 February 2008 para 3.
[19] Ibid para 28.
[20] Ibid para 35.
[21] Ibid paras 28, 29; see also affidavit of Guardala sworn 6 February 2008, affidavit of Marpoondin sworn 7 February 2008. She did not know of the ATSILS office on Palm island: p 8.
[22]McManamny v Hadley [1975] VR 705 at 714.
[23] Cf the analysis in Randel v Brisbane City Council (supra) at p 279.
[24] Affidavit of applicant filed 17 January 2008 para 30.
[25] See pp 27‑8; see also ibid para 30.
[26] Even after she consulted her current lawyers, they experienced difficulties in contacting her and obtaining further instructions: affidavit of Morreau paras 25, 26.
[27] As had happened to the applicant in the past: affidavit filed 17 January 2008 para 29; p 10.