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). 

If you have any questions about this article, please get in touch with John Van de Poll or Nicholas Gordon from our Insurance team.