Anderson v Transport Accident Commission
[2016] VCC 895
•15 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-03603
| SHANE ANDERSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 June 2016, 3 June 2016 and 8 June 2016 | |
DATE OF JUDGMENT: | 15 June 2016 | |
CASE MAY BE CITED AS: | Anderson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 895 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – Significant delay in commencing action – No specific prejudice
Legislation Cited: Limitation of Actions Act 1958; Transport Accident Act 1986
Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Magee QC with Ms C Willshire | Slater and Gordon Ltd |
| For the Defendant | Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application pursuant to s23A of the Limitation of Actions Act 1958 (“the Act”) for an order that the period within which the Plaintiff may commence an action for damages for negligence be extended for such period as determined by the Court. By operation of s5(1)(a) of the Act, that period in this case is six years from the date on which the cause of action accrued.
Chronology
2 Before turning to the facts and considerations relevant to the application, the following chronology sets out the relevant dates ─
·9 April 1973, Plaintiff’s date of birth
·9 May 1989, Plaintiff injured in the transport accident
·9 April 1991, Plaintiff attains 18 years of age and cause of action accrues
·9 April 1997, limitation period expires
·26 July 2012, Plaintiff issues originating motion and application for extension of time
·26 February 2015, TAC determines Plaintiff has suffered a serious injury in the transport accident on 9 May 1989 and issues certificate.
3 The foregoing dates establish that the Plaintiff was aged 16 at the time of the transport accident on 9 May 1989, and was therefore under a disability by operation of s3(2) of the Act. He ceased to be under that disability on his 18th birthday, on 9 April 1991, and it is accepted by both parties that, by operation of s93(19) of the Transport Accident Act 1986, the relevant limitation period commenced on that date and, accordingly, expired on 9 April 1997. It follows that this application was commenced 15 years after the expiration of that limitation period and 23 years after the transport accident occurred.
4 Plainly, the time that has elapsed in this matter is very significant and that, of itself, is a prominent consideration in this application. In a case of very significant delay such as this, the policy considerations underpinning the statutory limitation period, referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552−555, are plainly applicable.
5 In support of this application, the Plaintiff filed two affidavits sworn by him on 5 May 2014 and 14 October 2015 respectively. The Defendant did not require the Plaintiff to attend for cross-examination, but he was present in Court during the hearing of the application. In addition, the Plaintiff tendered a body of medical reports and clinical notes. He also tendered correspondence between his solicitors and the TAC, including a number of his income tax returns and a VicPol incident report in relation to the transport accident.
6 The Defendant tendered an affidavit of Simone Leith, a solicitor, and an investigation report of Maurice Kerrigan & Associates, although it would appear that this report was not exhibited to the affidavit of Simone Leith or otherwise the subject of any evidence in this proceeding.
Circumstances of the transport accident
7 The evidence establishes that the Plaintiff was injured in the transport accident at approximately 6.40pm on Tuesday 9 May 1989 in Station Street, Lalor. As previously noted, he was 16 years old. The Plaintiff stated in a TAC claim for compensation form, dated 1 November 1989, that he rode his bicycle across Station Street, having observed a stationary vehicle waiting to turn left into Station Street. He further stated that he took a short cut through a service station before entering Station Street and, shortly thereafter, was struck by a vehicle. The evidence establishes that the vehicle was being driven by Robert Trachevski and was a Suzuki four-wheel drive. There was also a passenger in the vehicle. The evidence also establishes that, after the collision, the Plaintiff was driven to his home in Lalor by the occupants of the vehicle that had struck him, who in turn left him in the front yard of his mother’s home. The occupants of the vehicle then left the scene. In his affidavit of 14 October 2015, the Plaintiff states that he smelt alcohol coming from the driver of the vehicle that struck him. After he was dropped off at his mother’s home, she telephoned the police and ambulance, and the Plaintiff was transferred to PANCH for treatment.
8 As a result of the transport accident, the Plaintiff suffered injuries to his left ankle, left leg and left shoulder. On 16 October 1991, he underwent a left ankle reconstruction and thereafter continued to suffer pain and ongoing disabilities in his left ankle. On 1 September 2010, the Plaintiff underwent a further left ankle LARS ligament reconstruction.
9 As I have already observed, the delay in this matter is a very significant consideration and, plainly, the memories of relevant witnesses to the transport accident would be impaired by the passage of that time. However, in my opinion, a judge or jury hearing a trial of an action for damages would not be required to examine complex circumstances or factual issues, and the transport accident may properly be described, in my opinion, as relatively straightforward.
The statutory scheme
10 Section 23A:
“(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)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.”
11 In this application, the Plaintiff has the burden of establishing that it is just and reasonable to extend the period within which an action on the cause of action may be brought. In determining whether it is just and reasonable to extend the limitation period in this case, I am required to have regard to all the circumstances of the case, together with the factors referred to in s23A(3) of the Act.
(i) Section 23A(3)(a)
12 As I have already observed, it is agreed by the parties that the cause of action accrued in this case on 9 April 1991, when the Plaintiff turned 18 years. The delay is therefore one of 21 years before proceedings were commenced on 26 July 2012 and 15 years after the expiration of the limitation period. I accept that the fact of such an inordinate delay is a significant factor in this application. However, I also accept that the Plaintiff had no clear knowledge of his rights in respect of an action for damages and the relevant applicable limitation period until 2012, when he first consulted Slater and Gordon and received legal advice in that regard. Whilst the evidence discloses that the Plaintiff consulted Victorian Compensation Lawyers in 2010, who requested that they be supplied with relevant documentation and correspondence by the TAC, the evidence does not disclose that the Plaintiff was at that time informed of his legal rights and any relevant limitation period. The evidence also discloses that, prior to the Plaintiff consulting Slater and Gordon in 2012, he was advised by Maurice Blackburn Lawyers that “they could not assist me”.
13 I accept the evidence discloses that the Plaintiff left school at the age of 14 and thereafter was engaged in unskilled employment. He is not an educated or skilled man. I further accept that, during the period of the delay, he was abusing alcohol and illegal drugs of dependence.
14 A psychiatric report of Dr Nathan Serry, a consultant psychiatrist, dated 10 April 2013, also discloses that the Plaintiff developed a significant psychiatric reaction in response to the transport accident “with low mood, marked anxiety, prominent features of traumatisation, considerable frustration and anger and substance abuse issues”.
15 I do not accept, as was submitted on behalf of the Defendant, that the Plaintiff has been “careless” in relation to his legal rights. He is an uneducated man with significant mental health issues who had no knowledge of his legal rights until 2012. Furthermore, it would appear that the consequences of the injuries that he suffered in the transport accident have become more marked with the passage of time, requiring the Plaintiff to undergo a further left ankle reconstruction in 2010. As a result of his deteriorating physical condition and the subsequent left ankle reconstruction, the Plaintiff became more concerned about any legal rights that he did have, leading him to consult Slater & Gordon in 2012.
(ii) Section 23A(3)(b)
16 I accept that the inordinate delay in this case will give rise to a degree of prejudice to the Defendant if the application is granted and the matter proceeds to trial. However, I do not accept that specific prejudice has been demonstrated in this case over and above the probability that relevant witnesses’ memories will be impaired by the passage of time. The driver of the vehicle that struck the Plaintiff and his passenger are available to give evidence and there is no evidence that either of them suffer from any incapacity to do so. And, the factual issues for determination in a trial of this matter will be relatively straightforward.
17 Whilst it would appear from the report of Michael Kerrigan, which is not the subject of evidence in the application, that a roundabout has been added to the roadway in question, there is no evidence as to when this occurred and in any event, in my opinion, it would plainly be open to the Defendant to obtain plans and possibly photographs of the roadway as it was on 9 May 1989. There is no evidence of any unusual feature or obstruction which would have impaired the driver of the vehicle’s capacity to keep a proper lookout whilst driving along Station Street.
18 It was submitted on behalf of the Defendant that a potential witness to the aftermath of the transport accident cannot be located. There is no evidence that the witness observed the collision and, in any event, the three principal witnesses ─ namely, the Plaintiff, the driver of the vehicle and his passenger ─ are all available to give evidence.
19 The Plaintiff’s application for compensation dated 1 November 1989 is available. The application was accepted and the TAC paid for all medical treatment and surgical procedures undertaken in respect of the Plaintiff. Medical records will therefore be available to the TAC. Furthermore, the Plaintiff has tendered in evidence clinical notes from his general practitioner, together with a medical report in relation to his left ankle reconstruction in 2010. The Plaintiff has also supplied to the TAC a number of income tax returns and income tax assessments for the years 1990 to 2009.
(iii) Section 23A(3)(c)
20 At the time of the transport accident, the Plaintiff was a child aged 16. The evidence discloses that, whilst he was in hospital on the day of the transport accident, he was visited and spoken to by an officer of the TAC. This visit must have been for purposes related to the statutory responsibilities of the TAC. A simple explanation of the circumstances of the transport accident would have revealed to the TAC officer that the Plaintiff may, subject to the nature of the injuries he had suffered, have a cause of action for damages. Despite this, the evidence discloses that the Plaintiff was not told what the nature and extent of his legal rights were at that time.
21 Furthermore, it was submitted in this application on behalf of the TAC that the circumstances of the transport accident were not investigated by the TAC until 2015, three years after the Plaintiff issued his originating motion and application for extension of time. It was clearly open to the TAC to investigate the circumstances of the transport accident prior to 2015, but it did not do so, and nor did it provide the Plaintiff with any factual or legal information that would assist him in his claim for damages.
22 The evidence also discloses that, in approximately 1995, the Plaintiff telephoned the TAC and made enquiries concerning a claim for compensation and, following that conversation, believed that he could not make a claim for compensation.
(iv) Section 23A(3)(d)
23 The Plaintiff was under a disability by reason of his age between 9 May 1989 and 9 April 1991, but neither party submitted that this was a significant factor for me to take into account in the circumstances of this case.
(v) Section 23A(3)(e)
24 The evidence discloses that the Plaintiff first became aware of his rights in relation to an action for damages in 2012, and, shortly thereafter, an originating motion was issued on his behalf.
(vi) Section 23A(3)(f)
25 The evidence discloses that in 1995 the Plaintiff contacted the TAC in relation to a possible claim for compensation and, as I have already noted, he believed that he could not make a claim for compensation following that conversation. In 2010, the Plaintiff underwent a further left ankle reconstruction and, at that time, the TAC agreed to pay for his ongoing medical expenses together with the cost of the surgery. He did not make any further inquiries in relation to any legal rights that he may have, although he did consult Victorian Compensation Lawyers in 2010 and Maurice Blackburn Lawyers in 2012, prior to receiving clear legal advice from Slater and Gordon in 2012.
26 It is accepted by the Plaintiff that he did not actively seek detailed and specific legal advice regarding his rights when it was open to him to do so. However, it would also appear from the evidence that there was a degree of confusion on his part as to those rights prior to being specifically advised of them by Slater and Gordon in 2012.
27 It was not submitted by either party that the Plaintiff has not sought appropriate medical treatment in respect of the injuries he sustained in the transport accident.
Conclusion
28 I have synthesised all of the matters required to be taken into account by s23A(3) of the Act and considered all of the circumstances in this case. In my opinion, it is just and reasonable to extend the applicable period of limitation for the bringing of an action in respect of the Plaintiff’s cause of action.
29 I will hear the parties as to the appropriate orders to be made in the circumstances of this case.
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