Civil Procedure

Matter: Jane Welby v Transport NSW

Matter no: To be filed

Court: The District Court of NSW

Solicitor’s name: John Pearson

With: Maryanne Welby, victim’s mother

Date: 30 June 2020 Time: 10:00am

File Note: Conversation with Maryanne Welby

Maryanne Welby came to our office on the morning of 30 June 2020 to discuss a personal injury matter in which her daughter suffered a grievous personal injury that led her to suffer epilepsy. The facts of the case as provided by Mrs Welby are as follows with notes and observations within the parenthesis: -

She was boarding a train at Newcastle Interchange Station with her three-year-old daughter Jane Welby.
The doors of the train were open and the signboard reflected that the train would leave the station in two minutes. (This two-minute window was enough for two people to enter the train and settle. Observing the signboard before entering also shows that Mrs Welby had taken reasonable care while entering.)
As they entered, the train jolted forward unannounced and Jane fell between the platform and train. She hit her head and was knocked unconscious.
Jane was examined by a doctor; whose whereabouts are unknown to her. (Subpoena the records of all the passengers on that journey to identify this doctor, he may be the star witness.) She says that the doctor also called the ambulance that took Jane to the John Hunter Hospital. (Remember inquiring whether the call records could be accessed from the telephone department or the hospital that could reveal the identity of the doctor.)
Jane was admitted to the hospital overnight and treated for a concussion. (Subpoena the records of the hospitals and the doctors who attended Jane that night.)
On 5 September, Jane had her first epileptic fit i.e. after three months of the injury. She is undergoing treatment ever since. ( Since Jane was fine for three months after the accident, her mother did not have any reason to believe that the current epileptic fit was the result of that injury. She also did not sit around and have been trying to find out the cause of her mental illness. It shows that she has worked according to the prudence of an ordinary man. She could not have assumed that the fits were a result of the injury.)
On 20 June 2020, Dr. Frank McCarthy, her neurologist concluded that she is suffering from epilepsy caused by the trauma when she hit the head at the accident after conducting a series of tests and extensive observation. (He may be called as an expert to furnish medical evidence in this regard.)

Instructions from the client:

The client instructed to advise upon the issues that may arise at a preliminary stage. She has not furnished any document on which she plans to rely as the evidence in support of her claim. Therefore, there is no question to go into the substantive issues involved in the case relating to the Civil Liability Act 2002 (NSW) and Evidence Act 1995.

As the matter has not originated in the court yet these are preliminary issues that may arise at the pre-trial:

Issue 1: Limitation

Transport NSW has would raise the issue of limitation. The limitation doesn’t defeat the right, it defeats the remedy. The period of limitation for filing cases for personal injury is three years from the cause of action. Provisions of the Limitation Act 1969 (NSW) as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 would apply in this case. According to this legislation, the cause of action, in this case, would not commence from the date of injury but the date of discovery of the injury. So, the period of limitation of three years would run from 20 June 2020 and not from the date of the accident i.e. 03 June 2017.

There are various other elements that were added by Schedule 1 of the Civil Liability Amendment (Personal Responsibility) Act 2002 like enlarging the scope of personal injury to include:-

(a) pre-natal injury, and

(b) impairment of a person’s physical or mental condition, and

The second part of this clause directly relates to the matter in question. Substantial changes were done by Schedule 4 of this amendment. According to part 4.6 of Limitation Act 1969 No 31, the period of limitation of three years would run from the date of discovery of the injury and not from the date of actual injury.

Issue 2: Pecuniary and territorial jurisdiction

As Jane’s injury has rendered her mentally incapable and dependant for care on another person for the rest of her life, the cost of the claim would be more than A$100,000. Therefore, the action for this tortuous claim would lie in the District Court of New South Wales whose pecuniary jurisdiction covers cases up to A$750,000.

Newcastle lies in New South Wales, Australia. Therefore, the District Court of NSW would have territorial jurisdiction in this case.

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