Anderson v Hazel
[2021] VCC 320
•30 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03608
| JANETTE ANDERSON | Plaintiff |
| v | |
| DEBBIE HAZEL | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 30 March 2021 | |
CASE MAY BE CITED AS: | Anderson v Hazel | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 320 | |
REASONS FOR JUDGMENT
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Tsiadis v Patterson (2001) 4 VR 114; Van Gervin v Amaca Pty Ltd [2012] VSC 13; Anisiena v Crane Haulage Pty Ltd [1974] VR 670; Millard v State of Victoria [2006] VSCA 29; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Bevilacqua v Giovanni Costa & Sons Pty Ltd [2017] VCC 1474
Judgment: Order extending the period of limitation to the causes of action set out in the plaintiff’s Statement of Claim against the defendant to 12 August 2020
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr G Smith | Slater and Gordon |
| For the Defendant | Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Janette Anderson (“the plaintiff”) commenced common law proceedings for damages in respect to a motor vehicle accident that occurred in a car park at a Bi-Lo supermarket in Bendigo on 17 November 2005. The plaintiff was stationary in her vehicle when a vehicle driven by the defendant reversed into her (“the accident”).
2The common law proceeding is subject to the provisions of the Limitation of Actions Act 1958 (Vic) (“the Act”) and, in particular, s5(1), which provides for a six-year limitation period. The six-year limitation period expired on 17 November 2011.
3On behalf of the defendant, a defence has been filed which raises the fact that the plaintiff’s proceeding is statute barred. Clearly, the plaintiff commenced the common law proceeding when well out of time.
4It is agreed that s23A of the Act is the legislative provision that enables an application to be made to the Court and permits the Court to extend the limitation period (provided it is “just and reasonable so to do”). Section 23A(3) relevantly provides:
“In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(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 or 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) the 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.”
5Mr Ingram QC and Mr Smith appeared on behalf of the plaintiff. Ms Wood appeared on behalf of the defendant. The plaintiff relied on an affidavit sworn by her on 10 March 2021, together with the exhibits to the affidavit. In addition, she was cross-examined on the contents of her affidavit. The defendant relied on the affidavit of Brydee Charlotte Hodgson, the solicitor for the defendant, sworn 22 March 2021. Counsel made submissions and the defendant also filed a written Outline of Submissions. I have taken all of the evidence and submissions into account. Thankfully, the battlelines in this application are clearly drawn and are narrow, and so I shall only refer to the evidence and submissions to the extent necessary.
A short history of relevant events and dates
6The plaintiff was born in 1962 and is now fifty-seven years of age. She is a single lady with three adult children. She has various certificates and diplomas, and university qualifications. In the past she has undertaken unskilled work, such as seasonal fruit picking.
7As mentioned, the accident occurred on 17 November 2005. There is no issue that the accident occurred or that the defendant is available and can give evidence, although in the common law proceeding she has denied negligence and raises contributory negligence.
8Following the accident, the plaintiff developed pain in her neck. It is unnecessary to deal with the medical evidence in detail. This is not a situation in which the defendant takes issue with causation. Within a relatively short time of the accident the plaintiff came under the care of Professor Richard Bittar, a neurosurgeon, and on 1 May 2007, he performed a C5-6 anterior cervical decompression and fusion with frame and screws, to treat the plaintiff’s neck injury.
9While the extent of injury, loss and damage is disputed by the defendant in the common law claim, for the purposes of this application there is no dispute that the plaintiff has had persisting neck symptoms and has required treatment from time to time.
10In May 2007, the plaintiff sought legal advice in respect to the accident and contacted Quinn and Quinn solicitors in Brighton. At the time of that contact, the plaintiff was living in Benalla, and she has remained living in Benalla. It therefore seems curious that she would attend solicitors in Brighton, but the explanation for that is that her then de facto husband had previously consulted Quinn and Quinn in 1983 in respect of a motor vehicle accident, and that caused the plaintiff to seek advice from them regarding the accident. In fact, she had some earlier contact with Quinn and Quinn in 2005 regarding the possibility that she might have been part of a class action, issued in the United States of America, in respect to faulty breast implants, although it does not appear that Quinn and Quinn advanced that claim for her. Indeed, there is a theme in this application that Quinn and Quinn also did not advance things in a satisfactory manner in respect to the advice given to the plaintiff regarding the accident.
11There is no dispute that the plaintiff attended Quinn and Quinn from May 2007, or that she continued to have contact with them and provide instructions to them. That contact appears to have been by telephone or by mail. It is unnecessary to set out such contact/attendances in detail. They can be summarised as intermittent.
12However, relevantly, on 30 June 2008,[1] Quinn and Quinn wrote to the plaintiff regarding her TAC claim. The contents of that letter is as follows:
“We refer to telephone conversation with the writer on 27th June 2008.
We note your new mobile number and address.
We further note that you have not been able to attend various medical examinations which have been arranged for you by TAC because of your physical restrictions.
As indicated in our previous correspondence we are concerned about you receiving your full entitlement from the Transport Accident Commission and more importantly whether you have a ‘serious injury’.
We note your advices that you are still experiencing grave restrictions psychiatrically and also that you may have a ‘functional overlay’.
As indicated if you have a ‘serious injury’ then you may be able to sue the negligent driver claiming compensation for pain and suffering and loss of earnings. To qualify for a ‘serious injury’ you must have suffered 30% impairment or more and/ or severe long term mental and behaviour disturbances.
As there are ‘time limits’ which apply it is your interests to give your full attention to this matter.
We wait your advices regarding the re-arranged appointments and a suitable time for you confer with the writer.” (sic)
[1]Plaintiff’s Court Book (“PCB”) 22
13Pausing here, counsel for the plaintiff and counsel for the defendant are in heated agreement that the advice given to the plaintiff by Quinn and Quinn in the letter dated 30 June 2008, was incomplete, vague and not advice that would be expected from a legal practitioner with knowledge of common law and TAC claims. In particular, the description in that letter as to what qualifies for a “serious injury” is simply wrong. Further, the letter is vague as to what was meant by “time limits”.
14Pausing yet again, and acknowledging that I am not deciding a negligence action against Quinn and Quinn, in my opinion, the initial advice to the plaintiff and then the relative inaction for many years, is such that it can be said that Quinn and Quinn failed to adequately advise the plaintiff or protect her interests arising out of the accident.
15Skipping forward in time, the last occasion in which Quinn and Quinn took any steps in respect to the plaintiff’s claim, appears to have been on 11 November 2015,[2] when they wrote to TAC regarding an appointment with a neurologist. There is no evidence that Quinn and Quinn took any steps to advance the plaintiff’s claim after that date.
[2]PCB 25
16In approximately July 2019, motivated by seeing an advertisement for Slater and Gordon, the plaintiff made contact with Slater and Gordon. Within a relatively short period of time they had advanced a “serious injury” claim on her behalf and eventually the issue of common law proceedings. It is clear after years of inactivity by Quinn and Quinn that Slater and Gordon had the whips cracking once they took instructions on behalf of the plaintiff and frankly they should be commended for doing so in circumstances where the previous solicitors had effectively managed to achieve nothing despite acting for the plaintiff from 2007.
17There is no evidence that the plaintiff was ever advised by Quinn and Quinn as to the relevant time limit in which to commence a common law proceeding, or that she had any personal knowledge of the six-year limitation period before she consulted Slater and Gordon. There is also no evidence of any contact between the plaintiff and Quinn and Quinn from November 2015, until she consulted Slater and Gordon, save that in cross-examination she recalled one occasion on which she rang Quinn and Quinn and left a message with them, and there might have been another occasion as well.
18Pausing yet again, while I have some sympathy for the fact that the plaintiff was unaware of the limitation period and to some extent left the conduct in the claim of Quinn and Quinn, equally and with some force as put by the defendant, she was not exactly proactive in advancing her own claim. In particular, apart from the evidence about the phone contact with Quinn and Quinn, there is no evidence that the plaintiff did anything to follow them up or advance this claim from late 2015 until July 2019.
19As mentioned earlier, the issues in dispute in this application are relatively narrow. The plaintiff submits that she is a lady who sought legal advice from Quinn and Quinn within a reasonable period of time and certainly when she was still in time. Thereafter, she considered that Quinn and Quinn were acting on her behalf and relied on them to advance her claim. The defendant does not raise any specific prejudice and there is nothing to suggest she does not have a memory of the accident circumstances, or that she cannot give relevant evidence. Despite the general prejudice due to the passage of time, taking into account all relevant factors, the plaintiff submits that it is just and reasonable to extend the limitation period. The defendant, says that the plaintiff herself acted unreasonably by letting the matter drag out and not proactively pursuing Quinn and Quinn to advance the claim, in particular from late 2015 through until July 2019. Further, the defendant submits that the conduct by Quinn and Quinn was negligent and in fact was so inadequate that the plaintiff has a very strong negligence action against Quinn and Quinn. The defendant submits the plaintiff’s own unreasonable conduct in allowing things to drag on, the general prejudice due to the passage of time and the very strong negligence claim available against Quinn and Quinn, are such that when taken into account, the Court should refuse to extend the limitation period.
Legal principles
20The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to her common law proceeding.
21In determining whether the plaintiff has discharged her onus I am required to take into account all of the circumstances of the case, and to synthesise all of the matters required to be taken into account by s23A(3) of the Act.
22An important issue that arises is whether the defendant is now able to get a fair trial, bearing in mind that the defendant in this application does not rely on any specific prejudice to her due to the passage of time. The relevant test is whether the defendant is able to have a fair trial, not a perfect one. As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2):[3]
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted”.
[3] [2020] VSC 639 at paragraph 204
23In the often cited judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[4] His Honour said that:
“First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them”.
[4] (1996) 139 ALR 1
24It is relevant that the legislation considered in Brisbane South is quite different to s23A of the Act,[5] but, as has been noted, the rationale as to which McHugh J referred in Brisbane South underpinned and informed the legislative purpose of provisions which impose limitation periods, and those giving the Court the power to extend time. The subject matter of those provisions is the lapse of time and the effect of delay on the quality of justice.[6]
[5] Tsiadis v Patterson (2001) 4 VR 114 per Buchanan JA at paragraph 31
[6] Van Gervin v Amaca Pty Ltd [2012] VSC 131 per Beach J at paragraph 46
25In the resolution of this application, I accept that the approach to it is as set out by Buchanan JA in Tsiadis, and for the avoidance of doubt as to how my task is to be approached, it is convenient to set out what His Honour said in Tsiadis as follows:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, 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. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
‘The question posed by s23A 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. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’ ”
Analysis
(a) The length of and reasons for delay on behalf of the Plaintiff
26There is no doubt that the delay is considerable. The limitation period expired in November 2011. The Writ was issued in August 2020, nearly nine years after the expiration of the limitation period and nearly fifteen years after the happening of the accident.
27Of course, the plaintiff did consult solicitors in May 2007, which was within a reasonable period of time and shortly after undergoing neck surgery. In the witness box, she struck me as a straightforward but unsophisticated lady. I accept her evidence and the submission advanced on her behalf that at all times she thought Quinn and Quinn were acting for her in respect to the accident and effectively she just left matters in their hands. But equally she was not proactive in hurrying them up or checking the status of her claim, or what could be done, particularly in light of what appears to be a fairly straightforward accident and very nasty neck injury.
28However, there is no evidence that she failed to follow advice given to her by Quinn and Quinn. It is clear that when she got proper advice from Slater and Gordon she has followed that advice, and her claim then advanced fairly quickly. Perhaps she could have done more to hurry up her previous solicitors, but in making such an assessment, that is through the prism of someone with appropriate legal qualification, which of course the plaintiff does not have. She believed she had retained solicitors who could competently and properly advance her claim for compensation arising out of the accident and she was entitled to expect that is what they would do, particularly in circumstances where she was blissfully ignorant of the six-year limitation period. So while I accept that perhaps she could have been more proactive, I also accept that the reason for the delay was the failure of her former solicitors to do what they needed to do to advance her claim.
(b)The extent to which, having regard to the delay, there is or likely to be prejudice to the Defendant
29This is not a case where the defendant can point to any specific prejudice. The defendant accepted that to be the case, but says that sometimes prejudice is not known until issues evolve at trial. While as a general proposition that may be correct, equally the circumstances of the accident appear relatively straightforward. The defendant has comprehensive material regarding not only the accident circumstances, but also the plaintiff’s medical history. Specific prejudice is not relevant for the purposes of determining this application.
(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.
30This provision does not appear to be relevant. The defendant commissioned an investigation report, which has been exchanged. The defendant provided the plaintiff with information from time to time as part of her no fault claim.
(d)The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action.
31This provision does not appear to be relevant.
(e)The extent to which the Plaintiff acted promptly and reasonably once she 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
32As mentioned, the plaintiff’s submission is that she retained solicitors in a timely manner and since then followed the advice, firstly of Quinn and Quinn (such that it was) and then from Slater and Gordon. As previously discussed, while on one view she could have been more proactive in hurrying Quinn and Quinn along, overall I accept that she left the conduct of her claim in their hands and she has acted promptly and reasonably whenever she has been asked to do something so as to advance this claim. The only real ‘failure’ on her part was to fail to provide funds to pay for a report requested from Professor Bittar,[7] but that does not appear to have contributed in any real sense to the delay in commencing the common law claim, if at all.
(f)The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice she may have received
[7] Transcript (“T”) 24, Lines (“L”) 17-23
33This section collapses with some of the discussion earlier in these reasons. This is not a situation though in which the defendant would be prejudiced through a lack of medical material. The real issue, which I shall return to, is the fact that the plaintiff did seek legal advice from Quinn and Quinn, but effectively nothing happened for a very long time, due to inadequate advice from them.
General considerations and a resolution of the Application
34The facts set out in s23A of the Act are not exhaustive. The decision to extend the period of limitation is to be made based on all of the relevant circumstances of the case.
35I consider it relevant the plaintiff has a significant transport-related injury to her neck. She has undergone major spinal surgery. Further, she was injured in what I consider, based on the description before the Court, to have been a relatively straightforward accident. The defendant does not raise any specific prejudice. The defendant does not suggest that it cannot get a fair trial.
36The general prejudice through the passage of time and the failure by the plaintiff, if indeed there was a failure, to do more to advance her own claim before consulting Slater and Gordon, are not, of themselves, matters which would, in my opinion, lead to a conclusion that the period of limitation should not be extended.
37The real issue in this case, in my view, is the conduct of Quinn and Quinn. I am not determining a negligence action against them, but based on the material before the Court in this application they appear to have been negligent and in particular failed to act in a timely manner to advance the plaintiff’s claim; failed to properly understand the “serious injury” process; and failed to provide the plaintiff with any sensible advice regarding the applicable limitation period.
38The plaintiff submits that what was said by Stark J in Anisiena v Crane Haulage Pty Ltd[8] is relevant, as referred to in Millard v State of Victoria:[9]
“It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this and against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of the opinion that it was entirely reasonable for a layman without legal qualifications to do as he did.”
[8][1974] VR 670 at [674]
[9][2006] VSCA 29 at paragraph [37]
39The existence of a viable, indeed, strong cause of action against Quinn and Quinn is a significant consideration.[10] An example of a case in which the strong cause of action against the original solicitors was of such significance so as to cause a Judge of this Court to refuse an application to extend the period of limitation is Bevilacqua v Giovanni Costa & Sons Pty Ltd,[11] as indeed is the decision in Gordon. But relevantly, in those cases the negligence of the original solicitors caused real (specific) prejudice to the defendant in the common law claim. That is to be contrasted with the situation in the present application.
[10]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
[11][2017] VCC 1474
40What is really put on behalf of the defendant in this application is that the plaintiff’s negligence action would be so strong against Quinn and Quinn (a proposition which appears correct), that the strength of that particular claim is such that the Court should not extend the period of limitation[12] and effectively shift the burden of the claim from one tortfeasor to another. But it should be remembered that the plaintiff’s claim against her previous solicitors is not the same as the claim she has arising out of the accident. It is not a simple matter of substituting one defendant for another.
[12] T 59, L 2-3
41The decision to extend a period of limitation involves a synthesising of all relevant factors. I should only exercise my discretion if I am persuaded that it is just and reasonable to do so.
42Taking all relevant factors into account, I conclude that it is just and reasonable to extend the period of limitation.
43In summary, there is no specific prejudice the defendant can point to. The general prejudice due to the passage of time is a relevant consideration, but is outweighed on my analysis by the lack of specific prejudice, the fact the accident circumstances are well documented, and the fact the plaintiff’s medical condition is also well documented. There is no suggestion that relevant witnesses are not available. There is no suggestion that the defendant cannot provide evidence in support of her defence. I also take into account that the plaintiff struck me as a credible lady and reliable in giving her evidence that she instructed Quinn and Quinn, who she regarded to be competent to manage her compensation claim, and otherwise left matters in their hands. The advice given to the plaintiff by Quinn and Quinn was, on any view, inadequate, and their conduct should not be condoned. However, in circumstances where their conduct has not contributed to any real prejudice to the defendant, the potential of a claim against the solicitors, while a relevant consideration, is not one that outweighs other relevant factors so as to dismiss the plaintiff’s application.
44Accordingly, there will be an order extending the limitation period to the causes of action set out in the plaintiff’s Statement of Claim against the defendant to 12 August 2020.
45I will hear the parties as to the appropriate orders to make, if any, in respect of costs.
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