May v Competitive Foods Pty Ltd  NTSC 79
PARTIES: TARA MAY
COMPETITIVE FOODS PTY LTD (ACN 009 701 179)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 115 of 2010 (21035112)
DELIVERED: 3 OCTOBER 2011
HEARING DATES: 9 AUGUST 2011
JUDGMENT OF: MASTER LUPPINO
Limitation of actions – Extension of time – Whether an extension should be heard as a preliminary point – Whether extension should be granted – Material facts – Residual discretion.
Limitation Act s 44
Supreme Court Rules r 47.04
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628.
Hodge v Kimber Unreported, Angel J, Northern Territory Supreme Court, 26 October 1995
Patten v Lend Lease Funds Management  NTSC 51.
Ulowski v Miller  SASR 277.
Lovett v Le Gall (1975) 10 SASR 479.
Forbes v Davies  Aust Torts Reports 81-279.
Plaintiff: Mr O’Loughlin
Defendant: Mr Mariotto
Plaintiff: Priestley’s Lawyers
Defendant: MSP Legal
Judgment category classification: B
Judgment ID Number: LUP1109
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
May v Competitive Foods Pty Ltd  NTSC 79
COMPETITIVE FOODS PTY LTD (ACN 009 701 179)
CORAM: MASTER LUPPINO
REASONS FOR DECISION
(Delivered 3 October 2011)
 This is a hearing, as a preliminary point pursuant to Rule 47.04 of the Supreme Court Rules (“the Rules”), of an application for an extension of time pursuant to section 44 of the Limitation Act (“the Act”).
 The evidence relied on in support of the application, is the affidavit of the Plaintiff sworn 24 June 2011. The Defendant relies on three affidavits of Peter Mariotto sworn 5, 8 and 9 August 2011 and an affidavit of its Northern Territory manager, Mr Maurice D’Arrigo affirmed 8 August 2011. None of those deponents were required for cross-examination.
 The substantive claim is for damages for personal injuries sustained in a fall occurring at the Defendant’s fast food outlet on 20 February 2002. The day in question had been a day of heavy rain resulting in water regularly being on the floor of the premises near the entrance way from the constant ingress of customers. The evidence reveals that the Defendant’s staff regularly mopped up the water at various times during the day. There was a mat immediately inside the entrance but the nature of the mat is unknown.
 In the Statement of Claim the Plaintiff alleges that she was owed a duty of care by the Defendant which it breached by failing to:-
1. install non-slip flooring;
2. install adequate water drainage;
3. mop up water on the floor;
4. warn customers;
5. provide a mat large enough to absorb the water.
 The Plaintiff’s mother notified the Defendant of the incident on the same day. The Plaintiff also sent a detailed letter to the Defendant on 14 May 2002 which made a claim and gave considerable detail of the circumstances of the claim. As a result, the Defendant was able to undertake initial investigations of the claim including obtaining statements from four of the Defendant’s staff members. The usual incident reports were also submitted. Thereafter the Defendant appointed an assessor who interviewed two of those staff members. The Defendant obtained sufficient information to enable a response to the Plaintiff’s letter of claim. Liability was denied and the Defendant instructed the assessors to suspend enquiries pending further action by the Plaintiff.
 The Plaintiff also made a complaint to NT WorkSafe who also investigated the incident. NT WorkSafe also interviewed some of the Defendant’s staff.
 Between September 2009 and December 2009 the subject premises underwent a substantial refurbishment and fit-out. Part of that involved replacing the floor tiles inside the premises.
 The Plaintiff claims to have sustained an injury to her left shoulder. She sought medical attention contemporaneously with the incident. She complained of serious pain initially but said that it settled within approximately one month. Thereafter she said it continued intermittently albeit with ongoing loss of amenity and restriction of movement. The Plaintiff said that the pain then progressively worsened. She consulted Dr Penta, an orthopaedic surgeon, on 23 April 2010. The Plaintiff deposes that Dr Penta told her she would require surgery and the likely cause of her shoulder pain was the relevant incident. The Plaintiff’s evidence is that was the first time anyone had told her that she would require surgery to address the condition. A copy of a letter from Dr Penta to the referring general practitioner dated 23 April 2010 relevantly refers to “...a significant history a blunt injury to the shoulder following a fall in a KFC outlet in 2002”. This clearly refers to the incident the subject of the Plaintiff’s claim. The letter however does not confirm what the Plaintiff alleges Dr Penta told her, namely that the fall was likely to be the cause of the Plaintiff’s symptoms.
 The Plaintiff had surgery in June 2010 and further surgery in April 2011.
 The Plaintiff put some of her medical records in evidence. These comprise the records of three general practices where she has been a patient. These show that the Plaintiff was apparently referred to a Darwin orthopaedic surgeon, Dr Baddeley, in 2004 by one of her general practitioners. These records indicated that the Plaintiff underwent a number of diagnostic tests in respect of her left shoulder injury between November 2004 and January 2005, i.e. prior to the expiration of the limitation period prescribed by the Act.
 That is the background to the application. Limitation period extensions are governed by the section 44 of the Act which provides as follows:-
44 Extension of periods
(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for:
(a) instituting an action;
(b) doing an act, or taking a step in an action; or
(c) doing an act or taking a step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.
(2) A court may exercise the powers conferred by this section in respect of an action that it:
(a) has jurisdiction to entertain; or
(b) would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not:
(a) apply to criminal proceedings; or
(aa) apply to an action on a cause of action for defamation; or
(b) empower a court to extend a limitation period prescribed by this Act unless it is satisfied that:
(i) facts material to the plaintiff's case were not ascertained by him until some time within 12 months before the expiration of the limitation period or occurring after the expiration of that period, and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff; or
(ii) the plaintiff's failure to institute the action within the limitation period resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and other relevant circumstances,
and that in all the circumstances of the case, it is just to grant the extension of time.
 An extension of time pursuant to section 44(3) therefore has three requirements. Firstly there must be a material fact. Secondly, proceedings must be commenced within 12 months of the ascertainment by the Plaintiff of that material fact. Thirdly the Court must be satisfied that it is just to grant the extension of time in all the circumstances of the case.
 The burden of proof, which is on the balance of probabilities, is on the Plaintiff. The Defendant has an evidentiary onus to raise any consideration relevant to the denial of the discretion per Brisbane South Regional Health Authority v Taylor. Ultimately though, the burden is on the Plaintiff and the first two requirements are a threshold which the Plaintiff has to satisfy before the Plaintiff has the right to call for the discretion to be exercised in her favour. The mere satisfaction of the first two requirements does not compel the exercise of the discretion in favour of the Plaintiff.
 The material fact that the Plaintiff relies on is the advice from Dr Penta in April 2010 that she would require surgery and that the likely cause was the fall in the Defendant’s premises. The preliminary question therefore is whether this is a material fact within the meaning of section 44(3) of the Act.
 The leading authority is Sola Optical Australia Pty Ltd v Mills (“Sola Optical”). That dealt with a provision of the South Australian Limitation of Actions Act which is in para materia to section 44(3) of the Act. In Sola Optical the High Court held that a fact, in order to be material, does not need to be decisive. It was held that a fact is material if it is both relevant to the issue to be proved and is of sufficient importance to be likely to have a bearing on the case. It was also held that these requirements are to be satisfied by an objective enquiry and without a subjective assessment of the plaintiff’s decisions or intentions in respect of the decision to sue. The Court also acknowledged that specialist advice can be a material fact even if it is only relevant to the question of damages.
 The Defendant challenged the Plaintiff’s evidence and submitted that the claimed fact was likely to have been ascertained by the Plaintiff earlier than she claims. Mr Mariotto for the Defendant submitted that if she had earlier ascertained the fact then she could not re-ascertain it for the purposes of section 44(3)(b) of the Act. I agree with that proposition.
 Mr Mariotto’s complaint is that the evidence of consultations with Dr Baddeley and diagnostic tests conducted between November 2004 and January 2005, being prior to the expiration of the limitation period, strongly suggests that the need for surgery was ascertained at about that time. Mr Mariotto was critical of the shortcoming in the Plaintiff’s evidence, such as the absence of the notes of Dr Baddeley or evidence of the circumstances of the referral of the Plaintiff to Dr Baddeley.
 Mr Mariotto was also critical of the absence of explanation of medical terms and conditions in the reports. On this, my view is that there is no requirement on the Plaintiff to explain medical terms unless that is specifically necessary to determine whether a fact relied on is a material fact for the purposes of section 44(2)(b) of the Act. I do not consider that to be the case here.
 That aside, Mr Mariotto’s challenge is to the veracity of the Plaintiff’s evidence as to when she first ascertained that fact. Although he points to a number of instances in the evidence from which inferences could be drawn, the absence of cross-examination of the Plaintiff means that her evidence has not been tested.
 Although I do not consider it appropriate to revisit the order for a separate trial of the limitation point at this stage, with the benefit of hindsight it is clear from the submissions that the limitation issues are intertwined with the substantive issues for determination at trial, such that it would have been best for the limitation issue to have been dealt with at the same time as the substantive issues.
 For current purposes the end result is that the evidence of the Plaintiff as to the ascertainment of the claimed material fact is essentially unchallenged. I have no basis upon which to reject her evidence absent the drawing of inferences which I am not prepared to do.
 Applying Sola Optical I therefore find that the advice of Dr Penta to the Plaintiff on or about 23 April 2010 that she would require surgery and that her condition was likely due to the fall in question is a material fact for the purposes of section 44(3)(b)(i) of the Act. I further find that fact was ascertained by the Plaintiff on that date and consequently the proceedings have been commenced within the 12 month period specified in that subsection.
 The residual discretion in section 44(3)(b) of the Act is therefore enlivened. It remains for me to be satisfied that it is just in all the circumstances that the discretion should be exercised.
1. The extent of the delay;
2. The explanation for the delay;
3. The hardship to the applicant if the application is not granted;
4. The hardship or prejudice to the defendant if the application is granted;
5. The conduct of the parties;
6. The nature, importance and circumstances surrounding the ascertainment of the new material facts;
7. The extent to which the evidence is likely to be less cogent than if the action had been brought within the time allowed.
 With respect to the Plaintiff’s conduct, she acted promptly following the incident. She gave notice and also made a complaint to NT WorkSafe. The result of these actions was that early investigations by the Defendant and NT WorkSafe occurred. The Plaintiff explains her inactivity in pursuing the claim within the limitation period as being a combination of the rejection of her claim by the Defendant and the relatively contemporaneous abatement of her symptoms.
 The Defendant relies mostly on hardship or prejudice. Specifically the Defendant relies on:-
1. The destruction or loss of the Defendant’s records in 2006;
2. The inability to locate the assessor’s files;
3. The changes made to the premises in the course of the fit-out in December 2009;
4. Difficulties in locating witnesses, being staff members on duty at the time.
 The Defendant also complains that the cogency of evidence has been adversely affected by the passage of time.
 Relevant to the claim of prejudice, enquiries reveal that the firm of assessors engaged by the Defendant to conduct the investigation of the claim and their Darwin agents had both been taken over since completing their investigations. One of the officers of the current firm has said that the files cannot be located.
 The Defendant complains that the available records of the investigation confirm insufficient detail for current purposes. Specifically, although the available records include photocopies of photographs taken of the premises at the time, the photographs are of poor quality. Although the photographs sufficiently show the existence of a mat at the entrance doorway, the specifications of the mat cannot be determined. They merely show the relative size of the mat and its apparent location in relation to the doorway. The Statement of Claim alleges that the Defendant failed to provide a mat large enough to absorb the water. Mr O’Loughlin for the Plaintiff submitted that as this allegation of breach of duty only refers to the size of the mat and not its properties, characteristics or features, the photos are likely to be adequate on the state of the pleadings.
 The Defendant also claims possible prejudice resulting from the refurbishment of the premises in 2006 and the inability to locate plans and specifications of the premises. This is relevant to the nature and characteristics of the tiles. Those plans and specifications are now apparently the best available evidence concerning the tiles and specifically with respect to determining the slip co-efficiency and generally the suitability of the tiles. I do not consider that the evidence is conclusive enough to make a finding that the records will not be located. The person to whom the enquiry was made has said that an archival search will be necessary, thereby acknowledging the possibility that sufficient documents will be found. At best this is evidence of possible prejudice only.
 It is not uncommon for franchisees, particularly large national franchisees as is the case with the Defendant in current proceedings, to have standardised premises and facilities. Consistent with that, there is even a suggestion in Mr D’Arrigo’s affidavit that the mat may have been a standardised and specifically branded product. In that event, options for further enquiries in respect of the specifications for the tiles and, to the extent that it is relevant, the mat itself, become apparent. Mr O’Loughlin pointed out that the Plaintiff will suffer greater prejudice if the specifications of the tiles are not located as the Plaintiff has the burden of proof. Although I agree with that, I cannot exclude that the possibility of prejudice to the Defendant in that respect.
 As to the locating of witnesses, the Defendant’s evidence is that all but three of the potential witnesses have been located. The enquiry agent engaged for this purpose is reasonably confident of locating one of those three. A possible telephone number for another has been identified. All three of those persons have made statements. The evidence reveals that enquiries to locate those witnesses are incomplete. To that extent, the evidence at present reveals only the possibility that they will not be located.
 Although it is true that the loss of the Defendant’s records in 2006 may hamper the location of those witnesses, some records remain available. These records identify the names and then current address of the witnesses. No evidence has been led as to what further details might be contained in the remainder of the Defendant’s records which have been destroyed.
 Having regard to the foregoing, the evidence of prejudice by the Defendant is inconclusive and is speculative at best. Although it remains a relevant factor even in its current state, clearly it is of lesser significance then evidence of actual established prejudice.
 As to the claims that the delay will adversely impact on the cogency of the evidence, it is trite to note that the delay of any sort will necessarily impact on the cogency of evidence. This is particularly so where the evidence depends on the witnesses’ recall of events. The conduct of the Plaintiff in giving notice and details of the claim ameliorates this given that contemporaneous statements were taken. The cogency of any available documentary evidence is unlikely to be impacted upon. In my assessment there is nothing to suggest any significant difference in the cogency of the evidence compared with cases where the maximum possible time has elapsed between the occurrence of the relevant incident and the final determination of a claim. Having regard to those time frames, the significance of this factor is reduced.
 Having regard to all relevant factors I am of the view that it is just to grant an extension in all the circumstances.
 I will hear the parties as to ancillary orders and costs.
 (1996) 186 CLR 541
 (1987) 163 CLR 628
 (1987) 163 CLR 628 at 638
 Hodge v Kimber Unreported, Angel J, Northern Territory Supreme Court, 26 October 1995
  NTSC 51
 Ulowski v Miller  SASR 277; Lovett v Le Gall (1975) 10 SASR 479; Forbes v Davies  Aust Torts Reports 81-279;