Abbisogni, Piero v McLean, Dean

[2009] VCC 1494

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-02068

PIERO ABBISOGNI	Plaintiff
v
DEAN McLEAN	First Defendant
and
BERRING PTY LTD	Second Defendant
and
MOONLEAF PTY LTD	Third Defendant
and
MERAN RISE PTY LTD	Fourth Defendant
and
IAN MURRAY	Fifth Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2009
DATE OF JUDGMENT:	25 August 2009
CASE MAY BE CITED AS:	Abbisogni, Piero v McLean, Dean & Ors
MEDIUM NEUTRAL CITATION:	[2009] VCC 1494

REASONS FOR JUDGMENT

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Catchwords: LIMITATION OF ACTIONS – application under s.23A – effect of Transport Accident Act 1985 upon entitlement of plaintiff to commence proceedings – relevance of specific and general prejudice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Clements	Slater & Gordon Ltd
For the First Defendant	Mr M Corrigan
For the Second Defendant
For the Third Defendant
For the Fourth Defendant
For the Fifth Defendant  HIS HONOUR:

1          The plaintiff has commenced proceedings against the defendants seeking damages for injuries suffered by him in the course of an incident which occurred on 7 April 2001 (“the incident”).

2          The third defendant is the licensee of the Glenferrie Hotel (“the hotel”). The second and fourth defendants operate security companies in the course of which they provided crowd control personnel to the third defendant. In the course of the evening of 7 April 2001, the plaintiff, who had attended the hotel as a patron, was forcibly evicted from the hotel by the first defendant who was providing crowd control services for the third defendant. At all material times the first defendant was employed by the second defendant and was working at the hotel with other crowd control personnel, some of whom were employed by the second defendant and some of whom were employed by the fourth defendant.

3          The plaintiff alleges that he suffered injury when, in the course of his eviction from the hotel, the first defendant pushed him backwards onto the roadway of Burwood Road such that he was struck by a motor vehicle which was travelling along Burwood Road.

4          On 4 June 2007, a generally endorsed Writ was filed on behalf of the plaintiff in the present proceeding. Following the service by the plaintiff of a Statement of Claim on 23 August 2007, the defendants each filed Defences. In their Defences the first, second and third defendants each take the statutory defence that the plaintiff’s proceedings were issued outside the relevant limitation period and are statute-barred.[1]

[1]             The fourth defendant has not taken this defence

5          The plaintiff brings an application pursuant to s.23A of the Limitations of Actions Act (“the Limitations Act”) for leave to commence this proceeding against the defendants, notwithstanding the expiration of the limitation period. The position taken by the defendants with respect to the plaintiff’s application is as follows:

• The first and second and fourth defendants do not oppose the application and have indicated that they will abide any decision made by the Court;

• Neither the first nor second defendants appeared upon the return of the Summons issued by the plaintiff in the proceedings;

• The third defendant opposes the plaintiff’s application and has filed affidavits in support of its opposition to the application.

6          It is not in issue that, by reason of the provisions of the Transport Accident Act 1986 (“the TAC Act”), the incident is characterised as a transport accident and that in these circumstances:

(i)	the limitation period with respect to the plaintiff’s cause of action is six years;[2]
(ii)	the plaintiff was not entitled to commence a proceeding against the defendants claiming damages at common law without first passing through one of the three gateways established by s.93 of the TAC Act which gave him access to the right to seek common law damages.[3]

[2]             As such, the plaintiff’s claim became statute-barred against the defendants on 7 April 2007

[3]             See Wilson v Nattrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299

The Relevant Legal Principles

7          Section 23A(3) of the Limitations Act provides that in determining whether it is just and reasonable to make an order extending the period in which the plaintiff is entitled to commence a proceeding, the Court should have regard to all the circumstances of the case including:

(a)	the length of and reasons for the delay on the part of the plaintiff;
(b)	the extent to which, having regard to the delay, there is likely to be prejudice to the defendant;
(c)	the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)	the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)	the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)	steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

8          In considering an application under s.23A of the Limitations Act, the relevant legal principles may be summarised as follows:

(i)	the plaintiff has the onus of satisfying the Court that it is just and reasonable to extend the limitation period;[4]
(ii)	the plaintiff’s prospect of success in the proposed proceedings is not a relevant factor subject to the Court being satisfied that the plaintiff has a cause of action which does amount to an abuse of process;[5]
(iii)	the availability of a cause of action to the plaintiff against his solicitor is a relevant factor to be taken into account;[6]
(iv)	the question posed by s.23A of the Limitations Act is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them;[7]
(v)	The Court should synthesize the competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[8]

[4]             Bell v SPC Ltd [1989] VR 170

[5]             Taylor v Western General Hospital [1986] VR 250. I am satisfied in the present case that the plaintiff has established that the cause of action pleaded against each of the defendants does not amount to an abuse of process.

[6]             Tsiadis v Patterson (2001) 4 VR 114

[7]             Bell v SPC Limited [1988] VR 123

[8]             Tsiadis v Patterson (supra)

9          In the course of considering generally the circumstances of the case, I find it convenient to deal firstly with the relevant matters raised by the provisions of s.23A(3) of the Limitations Act.[9]

[9]             Sub-paragraphs (3)(c) and (3)(d) of s23A have no application given the circumstances of the present case

The Nature of the Legal Advice Obtained by the Plaintiff

10        On 23 April 2001, the plaintiff instructed the solicitors generally for the purpose of pursuing any compensation to which he was entitled by reason of the happening of the incident. It is the submission of the third defendant that in those circumstances the solicitors were required to ensure that proceedings claiming damages against the defendants were issued prior to the expiration of the limitation period.

11        On 9 April 2002, the solicitors requested that the Transport Accident Commission (“TAC”) determine whether it would grant to the plaintiff a certificate to issue common law proceedings.

12        Thereafter, the affidavit of Jean Gregory, sworn 5 November 2008, deposes to the steps taken by the solicitors to secure the granting of such a certificate. Between 9 April 2002 and the date upon which the plaintiff’s application for a serious injury certificate was declined by the TAC on 29 April 2004, there was regular correspondence and exchange of information between the solicitors and the TAC. I can see no reason to criticise the approach taken by the solicitors up until this time, in seeking to convince the TAC that the plaintiff’s application should be granted.

13        On 14 July 2005, in response to a number of requests by the solicitors that it determine the plaintiff’s level of impairment, the TAC determined the plaintiff’s whole person permanent impairment resulting by reason of the transport accident at 16 per cent.[10] Again, having considered the actions taken by the solicitors up until this time, I do not consider that they should be criticised for the time taken in gaining the assessment by the TAC of the plaintiff’s whole person impairment having regard to the issues which arose during this time as to the stability of the plaintiff’s injury.

[10] Accordingly, at that time, two of the gateways open to the plaintiff as established by s.93 of the Act, namely:

14        On 15 March 2008, the solicitors were instructed by the plaintiff that his general practitioner had referred him for radiological investigation of his injury. During March and April 2006, MRI scans were taken of the plaintiff’s right ankle. Subsequently, the plaintiff instructed the solicitors that his general practitioner had advised him that, whist he may require further surgery, a trial of anti-inflammatory medication was appropriate at that time. This position was confirmed in a report by Dr George Giagoudakis, the plaintiff’s treating general practitioner, dated 2 August 2006. Earlier, on 24 July 2006, the solicitors had made an appointment for the plaintiff to be examined by a consulting orthopaedic surgeon, Mr Peter Moran. This examination was to take place on 21 March 2007.

15 On 2 April 2007, the plaintiff issued an Originating Motion seeking the leave of this Court pursuant to s.93 of the Act to commence proceedings to recover damages in respect to his injuries (“the serious injury proceedings”). On 29 May 2007, the TAC reviewed its previous decision made on 29 April 2004 and issued the plaintiff with a Serious Injury Certificate.

16        It is put on behalf of the third defendant that upon the refusal by the TAC to provide a serious injury certificate, it was incumbent upon the solicitors to ensure that the plaintiff obtained a determination from this Court as to the extent of the plaintiff’s injuries before the expiration of six years from the date of the incident.[11]

[11]           This being the only certain avenue available to the plaintiff to gain access to the gateway to commence common law proceedings against the defendants

17        It is clear that the provisions of the TAC Act introduced issues of greater complexity than would have been the case had the plaintiff’s cause of action against the defendants not arisen by reason of the transport accident for the following reasons:

•  Firstly, under the provisions of the TAC Act, the plaintiff was not entitled to commence the leave proceedings until his injury had stabilised to the extent that it was clear that he had suffered a serious injury within the definition of that term in the TAC Act.

•  Secondly, the quickest and cheapest access point for the plaintiff to the gateway established by s.93 of the TAC Act which would allow him to commence proceedings against the defendants was the granting of a serious injury certificate by the TAC.

•  Thirdly, the solicitors were required to focus their attention not merely upon the date upon which the provisions of the Limitations Act operated to terminate the plaintiff’s entitlement to commence his cause of action against the defendants but also upon ensuring that, before the expiration of the six year limitation period:

(a)	either a serious injury certificate was granted by the TAC; or
(b)	a judgment of this Court that the plaintiff had suffered a serious injury pursuant to the provisions of the TAC Act was delivered.

18        Whilst it is trite to assert that it was incumbent upon the solicitors to ensure one way or another that the issue as to whether the plaintiff had suffered a serious injury was determined within a timeframe which would allow the plaintiff to commence proceedings against the defendants, I am of the opinion the position which the solicitors faced was a difficult one. Although they were in a position to advise the plaintiff as to the potential liability of each of the proposed defendants to proceedings, they were not in a position to advise the plaintiff definitively as to whether he had an entitlement to commence proceedings against the defendants until his condition had stabilised and he had thereafter successfully accessed one of the three gateways established by the TAC Act.

19        Having considered the actions taken by the solicitors between 14 July 2005[12] and 23 April 2007, in the context of:

[12]           The date upon which the TAC determined the plaintiff’s whole person impairment to be 16 per cent

(i)	the refusal of the TAC to grant a serious injury certificate to the plaintiff;
(ii)	the need for the plaintiff’s injuries to stabilise so that a court was in a position to make a determination as to the level of permanent incapacity associated with the plaintiff’s injury;

I am of the opinion that, although it can be rightly asserted that the issue of the plaintiff’s entitlement to access one of the common law gateways established by the TAC Act should have been definitively determined before the expiration of the six year limitation period, a proceeding brought by the plaintiff against his solicitors by reason of their failure to achieve this position would not be straightforward.[13]

[13]           I express this view by reason of the fact that in such a proceeding the plaintiff would be required to establish that his solicitors did not pursue within a reasonable timeframe and in an appropriate manner the issue as to whether the plaintiff had suffered a serious injury pursuant to the provisions of the Act and that if they had done so they would have succeeded in obtaining access through one of the three gateways provided by the Act prior to the expiration of the limitation period In addition, the observations made by Buchanan J in Tsiadis (supra), at paragraph 28, are apposite.

The Length of and Reasons for the Delay on the Part of the Plaintiff

20        I am of the opinion that there could be no criticism of the plaintiff’s delay in instructing solicitors to act on his behalf in relation to this matter having regard to the fact that only sixteen days elapsed between the happening of the accident and the plaintiff instructing solicitors, Slater & Gordon (“the solicitors”) to pursue any compensation to which he was entitled.

21        Further, I am satisfied that the plaintiff acted appropriately both in seeking medical treatment and legal advice in the course of the process which required him to establish that he had suffered a serious injury as the result of the recurrence of the incident.

The Likelihood of Prejudice to the Defendant

22        It is submitted on behalf of the third named defendant that the prejudice to which it is exposed by the delay on the part of the plaintiff in pursuing this matter is such that the plaintiff’s application should be refused.

23        In Brisbane South Regional Health Authority v Taylor,[14] the High Court, in considering an application made under s.31(2) of the Limitations of Actions Act (Qld) 1974, set out the following propositions which were germane to the application made by the plaintiff in that proceeding, as follows:

[14] (1996) 186 CLR 541

(i)	When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension;
(ii)	That as time goes by, relevant evidence is likely to be lost;
(iii)	That it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
(iv)	That people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
(v)	That Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period;
(vi)	That the final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible;
(vii)	that prejudice may be occasioned merely by the effluxion of time;
(viii)	that time may well diminish the significance of a known fact or circumstance and that the longer the delay in commencing a proceeding, the more likely it is that a case will be decided on less evidence than was available to the parties at the time in which the cause of action arose.[15]

[15]           per McHugh J, at page 551, with whom Dawson J agreed

24        In Tsiadis v Patterson,[16] the Court of Appeal distinguished the decision of the High Court in Taylor,[17] on the basis that the Queensland legislation which was applicable to that case did not require the Court to concentrate upon all the circumstances in the case, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant.[18] Indeed in Tsiadis, Buchanan JA observed:

“… the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. …”

[16] (2001) 4 VR 114

[17]           (supra)

[18]           See the judgment of Buchanan JA, at paragraph 31, with whom Ormiston JA agreed

The Prejudice Relied upon by the Third Defendant

25        It is the third defendant’s case that it has suffered general prejudice associated with the effect of the effluxion of time, together with specific prejudice in that:

(i)	the memory of Ms Sally Donaldson, the third defendant’s duty manager, has been specifically affected;
(ii)	the third defendant’s managing director, Mark Henderson, was not aware that any allegation was being made against the third defendant with respect to the happening of the incident until he received the Originating Motion in this proceeding on 4 April 2007.

26        It is not in issue that the incident was investigated by the Victoria Police. Witness statements available to the parties from that process include statements from:

•  Three crowd controllers who were working at the hotel at the time;

•  A number of witnesses:

(i)      who observed the conduct of the security staff within the hotel;

(ii)     who observed the actions of the first defendant in propelling the plaintiff into the path of the vehicle;

27        The police, however, did not interview any employee of the third defendant.

28        The third defendant has filed:

(a) an affidavit from Ms Sally Donaldson who was employed by the defendant as its duty manager on 7 April 2001, who deposes:

(i)      that she has a vague recollection of an incident occurring outside the front of the hotel in April 2001;

(ii)     that she is unable to remember the circumstances of the incident, the mood of the evening and whether the security personnel were acting appropriately;

(iii)     that she has only a vague recollection of the first defendant;

(iv)     that as a duty manager she expects that she would have had at the time an appreciation of the above matters.

(b)

an affidavit from Mark Henderson, the third defendant’s managing director, who deposes:

(i)	that he was not on duty on the night of the incident but became aware of the incident on the following Monday;
(ii)	that he has no direct knowledge of the circumstances of the incident nor any knowledge of any employees of the third defendant being interviewed by the police with respect to the incident;
(iii)	that he first became aware that allegations were being made against the third defendant with respect to the incident on 4 April 2007.

29        In these circumstances, the third defendant submits that it has suffered specific prejudice and general prejudice arising from the passing of the years, in that it is no longer possible to know what information has been lost and what memories have been impaired.

30        The content of the affidavits of Ms Donaldson and Mr Henderson is not in dispute. It is submitted however on behalf of the plaintiff, that the first defendant and the three security guards who were working with him at the time of the incident[19] (the three crowd controllers) have all made statements to the police as to the circumstances of the incident, and that in these circumstances a significant body of evidence is available to the third defendant as to the event which commenced with the plaintiff’s eviction from the hotel and concluded with the plaintiff being struck by a motor vehicle.

[19]           Sahil Schroff, Hollie Smout and Toan Lam

31        The second defendant has not suggested that it is exposed to any prejudice should the plaintiff be granted leave to commence these proceedings out of time and the fourth defendant has not taken a defence under the statute. There is no evidence to suggest that the first defendant, together with the three crowd controllers, are not available to give evidence when the matter comes on for hearing.

32        The statements made by each of the crowd controllers indicate that they regularly worked at the hotel. Having regard to the detailed statements made by them to the police, I am not satisfied that evidence would not be available to the third defendant through them, which established the circumstances and mood of the evening and whether they, together with the first defendant, acted appropriately or inappropriately during the course of the incident which commenced with the plaintiff’s eviction from the hotel and concluded with his being struck by a motor vehicle. In the circumstances, whilst I accept that the third defendant has been exposed to potential prejudice by reason of the matters set out in both the affidavit of Ms Donaldson and to a lesser degree Mr Henderson, I am not satisfied that the defence by the third defendant of the proceedings brought against it by the plaintiff will be necessarily prejudiced to any significant degree.

33        Having regard to the thoroughness of the police investigation in this matter and the number of witnesses identified in the course of that investigation which are available to the parties to this proceeding, I am satisfied that the delay to which the third defendant has been exposed has not had the effect of making the chances of a fair trial unlikely and that this is a significant factor in influencing the decision as to the exercise of the discretion sought by the plaintiff.[20] Taking into account this factor, together with the matters to which I have previously referred, and balancing against this the prejudice to the plaintiff associated with the loss of his cause of action against the third defendant, I have come to the conclusion that overall, it is just and reasonable, notwithstanding the existence of possible prejudice to the third defendant, to extend the period within which these proceedings may be brought by the plaintiff.

[20]           Brisbane South Regional Health Authority v Taylor (op.cit), per Toohey and Gummow JJ, at page 550

34        Having regard to the positions of the first, second and fourth defendants to which I have earlier referred, for the reasons I have given in support of my finding in favour of the plaintiff against the third defendant, I am of the opinion that it is just and reasonable to extend the period within which proceedings may be brought by the plaintiff against each of those defendants.

35        I will hear submissions from the parties as to the precise form of the orders which are sought and as to costs.

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(i)	the issuing by the Transport Accident Commission of a serious injury certificate;
(ii)	the assessment of the plaintiff’s whole person impairment as greater than 30 per cent;

were closed to him.