The NSW Supreme Court recently delivered an interesting judgment
in Ivanisevic v N & T Building Limited [2024] NSWSC
380. Holman Webb Lawyers acted for a defendant who was not a party
to the motion.
BACKGROUND TO THE CASE
The Plaintiff alleges that on 24 July 2013, he sustained
injuries after a ladder he was ascending collapsed at the
residential premises he was working at. The Plaintiff underwent 18
surgeries and, ultimately, an amputation of his left leg below the
knee on 10 March 2021.
The Plaintiff had sought legal advice in 2017, however, that
initial advice only concerned his workers compensation
entitlements. The Plaintiff first obtained advice concerning a
claim against the builders (the first defendant) in 2019, but
allegedly no advice in relation to the owners, of which one was
present and had put the ladder in place just prior to the
accident.
The Plaintiff’s solicitor provided evidence that no
consideration was given to a claim against the owners until
mid-2022 when the builders served a statement denying ownership of
the subject ladder. The owners did not initially refute this
assertion.
The owners were not sued until 6 February 2023, nearly ten years
after the alleged accident.
Under section 50C of the Limitations Act 1969 (NSW), a
Plaintiff has three years to commence proceedings from the date the
cause of action is discoverable.
Section 50D (1) of the Limitations Act provides
that:
” a cause of
action is
“discoverable” by a person on the first date that the
person knows or out to know of each of the
following facts—
(a) the fact that the injury or death concerned has
occurred,
(b) the fact that the injury or death was caused by the fault of
the defendant,
(c) in the case of injury, the fact that the injury was
sufficiently serious to justify the bringing of an
action on the cause of
action.”
It was accepted that the issue was when the Plaintiff knew or
ought to have known that the injury was caused by the fault of the
owners. Was this before or after 6 February 2020?
The owners filed a Motion effectively seeking that the
proceedings be dismissed against them.
OWNERS’ SUBMISSIONS
The owner’s primary submission was that the Plaintiff knew
or ought to have known immediately that his accident was caused by
the owner, who was present and had put the ladder in place.
The backup submission was that the Plaintiff knew or ought to
have known when he first consulted his current solicitors in August
2017.
The owners also argued that the Plaintiff’s reliance on the
issue of who owned the ladder was misplaced. This was evidenced by
the fact that ownership of the ladder was not pleaded in the
Amended Statement of Claim joining the owners.
PLAINTIFF’S SUBMISSIONS
The Plaintiff submitted that his action was not discoverable
until May 2022, when the builder served a statement denying
ownership of the ladder.
It was also submitted that the Courts have found it undesirable
to determine a limitation issue in interlocutory proceedings
(citing Wardley Australia Ltd v State of Western Australia
(1992) 175 CLR 514).
THE JUDGEMENT
Justice Ierace found that the Plaintiff’s case against the
owners rests on facts, propositions, and heads of legal liability
that were knowable from the date of the incident and certainly
after a reasonable amount of time for the Plaintiff’s legal
representatives to obtain counsel’s advice.
However, Justice Ierace stated that Pomare v Whyte
(2019) 377 ALR 352 is the authority for the proposition that, where
the Plaintiff has obtained legal advice, the test in determining
what the Plaintiff ought to have known is what the solicitors told
the Plaintiff. Justice Ierace determined that:
“the cause of action was not discoverable until he had
the benefit of legal advice as to the potential liability of the
third defendants.”
Justice Ierace noted that the evidence was lacking as to when
the Plaintiff was first advised to join the owners. However, he
found that the inference is that it may have been as late as mid
2022 when the builder’s statement was received, and the owner
who was present was not denying that he may have owned the
ladder.
Justice Ierace also stressed that proceedings should not be
dismissed at an interlocutory stage unless proceedings are brought
“clearly out of time” (Murgolo v AII Ltd
t/as AAMI (2019) 101 NSWLR 376.
Justice Ierace, therefore, dismissed the owners’ Motion.
CONCLUSION
The decision is an example of how difficult it can be to
successfully rely on a limitations defence, particularly at an
interlocutory stage. In this case, the fact that proceedings were
not commenced until nearly 10 years after the accident, with the
Plaintiff knowing that the owner was present and had put the ladder
in place, was insufficient to establish that proceedings were
brought “clearly out of time” to succeed with an
application for dismissal at an interlocutory stage.
The decision provides clarification that a party wishing to rely
on a limitations defence can’t simply argue that a Plaintiff,
having seen solicitors, must have received appropriate advice but
must demonstrate what advice was given (which in the absence of an
admission is virtually impossible as advice is privileged).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#NSW #Supreme #Court #ruling #highlights #difficulty #relying #limitations #defence #Personal #Injury
