Arpa v Transport Accident Commission
[2019] VCC 240
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03306
| ROSA ARPA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 January 2019 | |
DATE OF JUDGMENT: | 13 March 2019 | |
CASE MAY BE CITED AS: | Arpa v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 240 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Neck – lower back – spine – left shoulder – multiple transport accidents – aggregation – aggravation – extension of limitation period – just and reasonable
Legislation Cited: Transport Accident Act 1986; Limitation of Actions Act 1958
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Prince Alfred College Incorporated v ADC [2016] HCA 37; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517; Petkovski v Galleti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment: Leave granted to extend time
Leave granted to commence proceedings for common law damages for both accidents
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram SC Ms F Crock | Slater and Gordon |
| For the Defendant | Mr P Elliott QC Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 On 9 September 1998, while driving her son home from school, Mrs Arpa’s car was struck from behind, while she sat stationary, waiting to make a right hand turn into her driveway (“the 1998 accident”). Mrs Arpa claims to have suffered ongoing pain in her neck and lower back since that time. Mrs Arpa sought legal advice soon after this accident, but did not proceed with a common law claim for damages relating to this accident within the six year limitation period.
2 On 17 April 2013, Mrs Arpa was involved in a second transport accident. On this occasion her car was struck by another car, which failed to stop at a red light (“the 2013 accident”). Mrs Arpa claims that this accident aggravated the injuries she had previously suffered in the 1998 accident.
3 In order for Mrs Arpa to be entitled to claim common law damages for the 1998 accident, she must satisfy me that she suffered an injury to her spine, the impairment of which satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act). In addition, Mrs Arpa must obtain from this Court an extension of the limitation period pursuant to s23A of the Limitation of Actions Act 1958, on the basis that it is “just and reasonable”.
4 In order for Mrs Arpa to be entitled to claim common law damages for the 2013 accident, she must satisfy me that she suffered an aggravation to her spine in this accident, and that the aggravated condition has, of itself, caused her to suffer consequences which satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 The Transport Accident Commission (“the TAC”) accepts that both the 1998 and the 2013 transport accidents caused Mrs Arpa to suffer injury to her spine. However, it denies that the consequences from either accident can, of themselves, be described as serious. The TAC further submits that it is prejudiced by the delay in the late bringing of the common law claim, in relation to the 1998 accident, such that it would not be just and reasonable to grant an extension of time.
6 Mrs Arpa was called to give evidence and she was cross-examined. Also in evidence were supporting affidavits from Mrs Arpa’s husband and a close friend, together with numerous medical reports and clinical records. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
7 For the reasons which follow, I am satisfied that the consequences to Mrs Arpa from the 1998 accident can be described as at least very considerable and thus serious. I am also satisfied that, having considered all of the relevant factors, it is just and reasonable to extend the limitation period in this matter, so as to enable Mrs Arpa to now commence common law proceedings for the 1998 accident. Further, I am also satisfied that the consequences to Mrs Arpa from the 2013 accident can also be described as at least very considerable, such that she should also be permitted to commence common law proceedings in respect of this accident.
Mrs Arpa’s life before the 1998 accident and her unrelated medical conditions
8 Mrs Arpa is 58 years of age. She is married and lives with her husband. They have one adult son, who no longer lives at home.
9 Mrs Arpa completed High School to Year 11, before then undertaking a secretarial course at a business college. While at this college, Mrs Arpa said that she struck her right knee on the edge of a staircase, dislocating her right patella, for which she later required surgery. Following the surgery, and once the plaster had been removed from her right leg, Mrs Arpa had physiotherapy treatment for a period of time. Her right knee has continued to cause her ongoing restrictions, however, in that she has not been able to kneel and is restricted in going up stairs.
10 In approximately 2002, at the suggestion of her general practitioner, Mrs Arpa applied for and was granted a part disability pension due to her ongoing right knee impairment. She said that she could not recall the general practitioner whom she had seen at that time, nor the name of the doctor who examined her on behalf of Centrelink. Mrs Arpa said that, as a condition of this part pension, she was able to work a maximum of 30 hours per week.
11 In addition to her right knee injury, Mrs Arpa has also suffered left knee problems, due to septicaemia. She said that the septicaemia was first diagnosed in 1999, and that while the cause was unknown, the infection usually flares up after she has undergone a dental procedure. Between 1999 and 2013, Mrs Arpa has required three surgical washouts of her left knee. She said that she now takes antibiotics prior to undergoing any dental procedure, so as to minimise the risk of the infection recurring.
12 In assessing Mrs Arpa’s application, I must disregard any impairment she suffers from these unrelated knee problems.
13 On 9 July 1985, soon after returning from her honeymoon, Mrs Arpa was involved in a transport accident (“the 1985 accident”). She subsequently lodged a claim in respect of this accident, following which she was examined on two occasions by surgeon, Mr Swann, at the request of the then statutory insurer. In his first report dated 10 April 1986, Mr Swann noted that Mrs Arpa’s general practitioner was Dr Reichl and that she had been referred to surgeon, Mr Coleman, in relation to the injuries she had suffered.
14 In his subsequent report dated 7 October 1986, Mr Swann noted that Mrs Arpa was still suffering neck pain at that time, but that her lower back pain was her main problem. Mr Swann noted that Mrs Arpa spent most of her day lying down, that she had difficulties sleeping and driving her car, that she had gained weight and that she could only walk slowly.
15 At the time of the 1985 accident, Mrs Arpa worked full-time as a medical receptionist for general practitioner, Dr Hoare. Records obtained from this period of time revealed that Mrs Arpa had taken approximately two years off work following this accident and that in 1987, solicitors, C.L. McCoy and Co, had assisted her in recovering the maximum loss of earnings amount payable for that accident.
16 When all of this material was put to Mrs Arpa in cross-examination, she stated that she had no recollection of the 1985 accident, nor any of the symptoms she had suffered, nor having instructed solicitors to act on her behalf. When the first report of Mr Swann was put to her, Mrs Arpa said that she was able to recall that her general practitioner had been Dr Reichl, but was unable to recall the referral to a surgeon. Mrs Arpa said that her inability to recall the 1985 accident was the reason for which she did not tell any of the subsequent medico-legal doctors about the accident or any of the symptoms she had suffered at the time.
17 Mrs Arpa’s son was born in May 1987. Besides suffering from high blood pressure, Mrs Arpa said that she did not otherwise suffer any complications during her pregnancy, and in particular, no back pain.
18 In 1987, Mrs Arpa and her husband established a video business, which operated for 11 years thereafter. Mrs Arpa said that she worked full-time and completed the book work and administrative duties associated with the business. Mrs Arpa was a director of the business and shared the profits with her husband.
19 In 1996, Mrs Arpa fractured her right ankle in a public liability incident. She said that she recovered from this fracture, and had no ongoing difficulties prior to the 1998 accident.
20 Mrs Arpa said that, prior to the 1998 accident, she and her husband enjoyed going out with other couples to the Italian Social Club, where they would dance. She also said that she and her husband would often walk their two dogs, and that she was a passionate cook who enjoyed making meals for her extended family.
The 1998 accident and the consequences to Mrs Arpa from her spinal impairment
21 Mrs Arpa described the 1998 accident as being so significant that her car, after having been struck from behind, was pushed forward a distance equivalent to five house blocks, causing her to strike her head on the windscreen. Mrs Arpa said that she attended upon her general practitioner, Dr Lewis Morris, immediately after the accident, and that he recorded injuries to her neck, right and left shoulders and hip. Mrs Arpa said that Dr Morris advised her to rest.
22 The following day, Mrs Arpa lodged a claim for compensation with the TAC in respect of the injuries she had suffered. In her claim form, she stated that she was “nervous, jumpy, painful neck, shoulder and full back to bottom” following this accident. She also stated that, prior to this accident, her health had been “very good” and that she had fully recovered from the ankle fracture she sustained three years earlier.
23 This claim was subsequently accepted by the TAC.
24 On 25 September 1998, x‑rays were taken of Mrs Arpa’s cervical, thoracic and lumbar spine, and no abnormalities were reported.
25 From October 1998, Mrs Arpa obtained physiotherapy treatment at the Highton Physiotherapy Clinic, where she was treated by physiotherapist, Ms Wendy Busch. In a treatment notification plan dated 17 November 1998, Ms Busch noted that Mrs Arpa initially reported acute pain in her head, neck, thoracic and lumbar spine, following the 1998 accident. At this time, it was proposed that she be treated twice a week for a 10 week period.
26 On 3 June 1999, Dr Morris wrote to the TAC requesting ongoing home help for Mrs Arpa, as a consequence of her injuries. Dr Morris considered Mrs Arpa to be suffering from soft tissue injuries to her neck, right and left shoulders and right hip, and noted that such symptoms persisted despite physiotherapy, rest and analgesia.
27 On 29 July 1999, Mrs Arpa was examined by orthopaedic surgeon, Mr Robin Williams, at the request of the TAC. In his report dated 29 July 1999, Mr Williams noted that Mrs Arpa complained of persistent pain in her neck and shoulders at that time, and that she was “not able to sleep”, nor complete the heavier household chores. It was also noted that her husband did most of the shopping and that she avoided walking. Mr Williams also noted that, while Mrs Arpa was able to drive a car, she experienced pain upon turning her head and neck, such that it was difficult for her to see.
28 Mr Williams diagnosed Mrs Arpa as suffering musculoligamentous strains to her cervicothoracic region and the posterior aspects of her shoulders. He recommended that Mrs Arpa be encouraged to exercise in order to assist with her rehabilitation. Mr Williams was of the opinion that analgesic medication may assist Mrs Arpa, but did not think that it would be curative.
29 In August 1999, Mrs Arpa resumed physiotherapy treatment. In a report dated 20 July 2000, physiotherapist, Ms Anne Africa, noted that Mrs Arpa complained of constant pain in her neck, thoracic and lumbar spine, and in both forearms. Ms Africa diagnosed Mrs Arpa as suffering soft tissue injury to her cervical and lumbar spine. It was recommended that she be treated with massage, mobilisation, muscle energy technique and gentle exercises. However, in circumstances where such treatment had not alleviated her pain, Ms Africa considered Mrs Arpa’s prognosis to be guarded.
30 On 4 November 1999, the TAC arranged for Mrs Arpa to be examined by occupational physician, Ms Sue Pickering, in order to assess Mrs Arpa’s need for ongoing home help services. In a report dated 8 November 1999, Ms Pickering noted that, at the time of the 1998 accident, Mrs Arpa was in the process of purchasing a new business with her husband, was active in her son’s school, enjoyed socialising with family and friends, and going for long weekend drives. At the time of the examination, Ms Pickering noted that Mrs Arpa was only able to drive short distances due to her reduced sitting tolerance and the limited range of movement in her neck. Ms Pickering also noted that Mrs Arpa had a sitting tolerance, in a comfortable chair, of up to one hour, and that her standing and walking tolerances were 5 to 10 minutes at a time. As a consequence, Mrs Arpa’s husband reportedly did the majority of the cooking, and shopping activities. Ms Pickering noted that Mrs Arpa reported difficulty with vacuuming, mopping, cleaning the bathroom and toilet, dusting and carrying wet washing. Ms Pickering ultimately recommended that Mrs Arpa continue to be provided with four hours of home help per week.
31 On 17 February 2000, Dr Morris wrote to the TAC stating that, in his opinion, a significant degree of Mrs Arpa’s condition and need for home help, was attributable to the injuries she had suffered in the 1998 accident. He noted, however, that her previous left ankle injury and the left knee septic arthritis “cloud the issue”. At that time, Dr Morris considered Mrs Arpa to require assistance with vacuuming, as well as cleaning her bathroom and toilet. Dr Morris also stated that Mrs Arpa’s management consisted of taking Panadeine Forte medication and avoiding pain producing activities.
32 On 15 March 2000, Mrs Arpa was assessed by physiotherapist, Mr Mark Summers, at the request of the TAC, for the purpose of assessing her need for ongoing physiotherapy treatment. Mr Summers considered Mrs Arpa to be suffering a chronic pain condition, but thought that her pain levels were out of proportion to the state of her injury. Mr Summers recommended that this situation be addressed by a physiotherapist, and that the TAC consider a pain management program to address the psychological aspect of, and provide education in relation to Mrs Arpa’s chronic pain.
33 In May 2000, Mrs Arpa attended the Geelong Pain Clinic, where she was seen by Dr M Gray-Thompson. In a report dated 26 July 2000, Dr Gray-Thompson noted that Mrs Arpa complained of persistent lower back, neck and shoulder pain. It was also noted that she complained of difficulties with sleep, that she was restricted in performing tasks at work, as well as domestic duties at home, and that she often dropped things. Dr Gray-Thompson diagnosed Mrs Arpa as suffering a soft tissue injury, with functional overlay. He was ultimately of the opinion that her prognosis was guarded until further treatment options, including psychological counselling, were explored, in circumstances where her symptoms had persisted and treatment had failed to produce any resolution.
34 In a further report dated 20 July 2000, Dr Morris was of the opinion that Mrs Arpa suffered a chronic pain condition of her neck and lower back, and that such injuries were consistent with the 1998 accident. Dr Morris considered Mrs Arpa capable of performing only light work for the foreseeable future, but suspected her condition would gradually improve with time. However, he was not aware of any treatment that would hasten her recovery.
35 In July 2000, at the request of her then solicitors, Maurice Blackburn, Mrs Arpa was examined by pain specialist, Dr Clayton Thomas. In a report dated 3 August 2000, Dr Thomas detailed the history he had obtained from Mrs Arpa as to the 1998 accident. He noted that, at that time, she complained of pain in her neck and shoulders, together with persistent lower back pain, pain in her hips and down both legs. Dr Thomas examined Mrs Arpa before then diagnosing her as suffering a chronic soft tissue injury to the cervical and lumbar spine, consistent with chronic muscular ligamentous strain. Dr Thomas considered Mrs Arpa’s symptoms were consistent with the 1998 accident.
36 Dr Thomas considered Mrs Arpa’s pain manifestations to comprise a significant psychological component, which magnified her pain complaints. At that time, Dr Thomas considered Mrs Arpa to be at a “medical end point.”
37 On 4 November 2002, Dr Morris wrote to the TAC stating that Mrs Arpa had difficulty sleeping due to ongoing neck and left shoulder pain, and requested payment for a reclining chair to help improve her sleep disturbance. Save for these letters from Dr Morris referred to above, it should be noted that there are no clinical records relating to the care he provided to Mrs Arpa prior or subsequent to the 1998 accident.
38 In 2004, Mrs Arpa obtained osteopathic treatment, from which she reported an improvement in her symptoms. On 8 September 2004, general practitioner, Dr Dianne Garner,[1] wrote to the TAC requesting that further osteopathy treatment be provided, on the basis that Mrs Arpa had experienced an improvement in her mobility and sitting tolerances, and a reduction in her analgesia intake. That request was subsequently agreed to by the TAC.
[1]Dr Garner practised at the Bell Park Medical Clinic, which was the same clinic as Dr Morris.
39 In March 2005, at the request of the TAC, Mrs Arpa was examined by surgeon, Mr Robert Marshall. In his report dated 22 March 2005, Mr Marshall noted that Mrs Arpa complained of pain on movement of her lumbar spine and that she was tender over her right sacroiliac joint. On examination, Mr Marshall considered the movements of Mrs Arpa’s lumbar spine to be normal, and he did not detect any abnormality to her cervical spine. He did, however, note the positive finding of tenderness in the right sacroiliac joint.
40 Mr Marshall was of the opinion that Mrs Arpa had sustained a “whiplash” injury to her neck in the 1998 accident, but did not consider the accident to have caused the problems in her lower back. He considered her persistent pain to be a consequence of her obesity, together with some age-related degenerative change in the sacroiliac joint. Mr Marshall was of the opinion that Mrs Arpa’s symptoms were typical of a “chronic pain syndrome”.
41 In April 2008, due to persisting difficulties with sleep, Mrs Arpa sought partial funding from the TAC for the purchase of a mattress, together with funding for physiotherapy and hydrotherapy expenses.
42 In August 2008, Mrs Arpa also sought further funding for the purchase of pillows to assist with her neck and spinal pain while sleeping. These requests were supported by Mrs Arpa’s then general practitioner, Dr Notini.
43 In November 2008, Mrs Arpa commenced hydrotherapy with Ms Tanya Deans. In a report dated 15 July 2018, Ms Deans detailed the restrictions Mrs Arpa suffered during the period November 2008 until 7 May 2012. Throughout this period, it was noted that Mrs Arpa complained of restriction of movement in her neck and lower back, as well as bilateral knee, hip and shoulder pain. Mrs Arpa’s sitting tolerance was recorded as varying between 30 to 60 minutes, and her walking was limited to 100 metres. Ms Deans noted that Mrs Arpa had suffered two falls in 2008 and one in 2011.
44 On 6 July 2009, Mrs Arpa commenced attending the Tristar Medical Group in Grovedale, where she has continued to attend on a regular basis ever since.
45 By September 2009, Mrs Arpa said that her back was so bad that it could unpredictably spasm, such that she would not be able to walk without the assistance of another person. In a letter to Dr Tine, written at this time, Mrs Arpa stated that the pain was “unbearable”, following which she sought assistance from the TAC for the payment of physiotherapy and gym expenses, as well as a handrail for her shower.
46 In November 2009, Ms Pickering re-examined Mrs Arpa for the purpose of assessing her claim for a rail and shower mat, for use within her home. In a report dated 17 November 2009, Ms Pickering noted that Mrs Arpa had gained a considerable amount of weight over the previous decade, and that she now weighed in excess of 150 kilograms. Ms Pickering noted that Mrs Arpa continued to demonstrate a restricted active range of movement in her neck, shoulders and lower back. At that time, it was noted that she was taking Tramadol (100 milligrams) twice daily, Panadeine and Panadol as needed, together with anti-inflammatory medication. Ms Pickering noted that Mrs Arpa’s sitting tolerance in a comfortable chair was approximately one hour, that her standing and walking tolerance remained limited at 5 to 10 minutes, and that it was difficult for her to negotiate steps. So as to assist Mrs Arpa when showering, and to minimise the risk of falling, Ms Pickering recommended that the TAC pay for a bath mat and handrail.
47 In the middle of 2011, Mrs Arpa sought further funding from the TAC in respect of a three month gym and swim program, further physiotherapy treatment, as well as the provision of home assistance. The request for the home help assistance was supported by general practitioner, Dr Jibina Majeed, from the Tristar Clinic. In a letter to the TAC dated 16 June 2011, Dr Majeed noted that Mrs Arpa was continuing to suffer from lower back, hip and neck pain, which impinged upon her ability to perform activities at home such that she needed help to perform household activities.
48 On 11 August 2011, Mrs Arpa attended her local medical clinic complaining of a flare-up in her lower back pain, after having tripped on stairs at home. Mrs Arpa attributed this fall to her ongoing back pain since the 1998 accident. At that time, Mrs Arpa requested home help and a recliner chair.
49 In October 2011, the TAC arranged for Mrs Arpa to be re-examined by Mr Williams. He noted that her lower back pain was her main problem at this time. Mr Williams stated that he had not originally recorded this complaint, notwithstanding Mrs Arpa’s insistence that such lower back pain had persisted since the 1998 accident.
50 Mr Williams noted that Mrs Arpa suffered “severe spasms in her lower back”. In cross-examination, Mrs Arpa accepted this record, but said that the spasms were not as frequent at that time as they are now.
51 Mr Williams also noted that Mrs Arpa complained of pain in her neck, with a restriction of movement, which made it difficult for her to drive, climb stairs or sit for long periods of time. On examination, Mr Williams considered Mrs Arpa’s symptom pattern to exhibit “strong emotional overtones”.
52 The TAC posed the following question to Mr Williams:
“Do you believe that these symptoms have an organic basis? Can these symptoms be attributed to the transport accident?”
53 Mr Williams answered as follows:
“Probably not. These symptoms have arisen out of the injuries she sustained.”
54 I consider this answer to be somewhat ambiguous. While Mr Williams appears to suggest that the symptoms are unlikely to have an organic basis, he attributes such symptoms to the injuries Mrs Arpa sustained, presumably in the transport accident. I also note that Mrs Arpa had only undergone x-rays to her spine at this time, and that Mr Williams did not have the benefit of reviewing the CT and MRI scans subsequently performed.
55 In any event, Mr Williams considered it reasonable for Mrs Arpa to attend the pool once a week, and he did not recommend any further treatment.
56 In February 2012, Mrs Arpa was re-assessed by Ms Pickering. In a report dated 13 February 2012, Ms Pickering noted that, at that time, Mrs Arpa suffered from constant pain and a reduced range of movement and stiffness in her neck, shoulders and lower back. It was noted that her standing tolerance was 10 minutes, that her sitting tolerance, in a comfortable chair, was approximately one to two hours, and that her walking was limited to three minutes, due to pain and fatigue. Ms Pickering noted that Mrs Arpa was working up to six hours per day at that stage, as an administrative assistant in a loan company, but that she was exhausted after work and lacked the energy to regularly clean her home, or to socialise. Ms Pickering ultimately recommended that some further home services be provided, together with some equipment for the home.
57 In a supplementary report dated 19 April 2012, Ms Pickering recommended the installation of a second rail on the access steps of Mrs Arpa’s home, to assist with her mobility.
58 Mrs Arpa said that she has never been able to clean her house fully since the 1998 accident. From that time on, she has relied upon home help services, part of which have been paid for by the TAC.
59 In her first affidavit, Mrs Arpa said that, after the 1998 accident but before the 2013 accident, she was limited in her activities of daily living. She said that she required assistance from time to time to perform household tasks and gardening, as well as looking after her home, and that she had not been able to cook and provide for her extended family as she would have liked. She stopped attending dances and social events at the Italian Social Club, and was no longer able to walk her two dogs.
60 On 30 March 2013, just weeks prior to the 2013 accident, Mrs Arpa attended upon Dr Tine and was prescribed Tramadol (200 milligrams, twice per day), Panadol Osteo and Movalis, as well as blood pressure medication. Mrs Arpa said that she considered the pain level from her spine to be 6 out of 10 at about this time.
Employment after the 1998 accident (but before the 2013 accident)
61 A few months prior to the 1998 accident, Mrs Arpa and her husband commenced investigations in relation to the purchasing of a café, in order for Mrs Arpa to pursue her interest in cooking. After the 1998 accident, they proceeded to set up their café, which was named “Rosa’s Homemade Cooking”. Mrs Arpa said that she was responsible for the administration of the business, as well as the laundry, and that she helped make sandwiches for lunch orders required by two local schools, and occasionally served customers. However, Mrs Arpa said that her husband had to do the cooking as she was unable to do so. Mrs Arpa said that it had been a longstanding dream of hers to operate a takeaway shop, and that she was very disappointed when it closed.
62 Mrs Arpa was a director of the café business, which operated under a family trust, and from which she split the profits with her husband. Mrs Arpa said that they sold the business in approximately 2004, following which she then proceeded to care for her mother for approximately two years.
63 In 2006, after her mother moved to a nursing home, Mrs Arpa obtained six weeks’ employment assisting with the Australian Census, following which she obtained a job with a loan company, which handled small personal loans. Mrs Arpa was employed to work 28 hours per week and was paid $20 per hour. As part of that role, she interviewed customers and undertook credit checks, etc. She said that she “ran the business” with her boss. Mrs Arpa said that her boss was aware of the physical difficulties she experienced when sitting, standing and walking, and that he accommodated such restrictions. She said that her boss delivered the mail for the business and allowed her to park in his car park so as to minimise the distance she had to walk. Mrs Arpa said that she was able to cope in this role due to these allowances.
Legal advice regarding the 1998 accident
64 Following the 1998 accident, Mrs Arpa said that she visited Maurice Blackburn’s Geelong office on one occasion only. She could not remember when this was. Mrs Arpa recalls being told that there was nothing that could be done for her in respect of pain and suffering compensation, as she needed to be “really seriously injured”, to the extent that she had lost a limb or was in a wheelchair. Following this appointment, Mrs Arpa said that she subsequently received a letter from Maurice Blackburn which she threw in the bin.
65 In her affidavit, Mrs Arpa stated that Maurice Blackburn had assisted her with the payment of certain medical expenses, including the funding of a recliner chair. When this was put to Mrs Arpa in cross-examination, however, she said that she had been mistaken. Mrs Arpa was adamant that she had no ongoing contact with Maurice Blackburn beyond her first and only appointment, and that she was unaware that Maurice Blackburn had been involved in reviewing her entitlement to medical expenses.
66 Mrs Arpa’s oral evidence in relation to her contact with Maurice Blackburn would appear contrary to her affidavit, and to correspondence from Maurice Blackburn to the TAC dated 29 January 2002, in which Maurice Blackburn sought reasons as to the reduction in her home help. I consider it unlikely for Maurice Blackburn to have taken such steps without instructions, and am of the opinion that Mrs Arpa is either wrong, or simply confused in relation to this matter.
67 On 29 November 2009, Maurice Blackburn wrote to the TAC stating that they acted on behalf of Mrs Arpa, and requesting that the TAC schedule impairment examinations. On 22 March and 28 March 2000, the TAC wrote to Maurice Blackburn stating that, it in its opinion, based upon the medical evidence on file, Mrs Arpa was not entitled to receive an impairment benefit. Subsequent to those letters, Maurice Blackburn provided the TAC with medical reports from Dr Morris, Ms Africa, Dr Gray-Thompson and Dr Clayton Thomas. On 29 September 2000, the TAC determined that Mrs Arpa’s impairment was less than 10 per cent.
68 Mrs Arpa said that she was also unable to recall having received a letter from the TAC dated 29 September 2000, in which she was advised that the TAC had assessed her level of impairment at less than 10 per cent.
69 Further, on 27 June 2001, Maurice Blackburn wrote to the TAC requesting a serious injury certificate on behalf of Mrs Arpa. On 21 September 2001, the TAC wrote to Maurice Blackburn declining the request. In its letter, the TAC informed Mrs Arpa that she could apply to the County Court if she was unhappy with its decision, for a judge to then determine whether or not her injury fell within the definition of “serious Injury” as contained in the TAA.
70 Mrs Arpa said that she was unaware that Maurice Blackburn had sought a serious injury certificate on her behalf, and could not recall receiving the TAC’s letter of 21 September 2001.
71 Further, Mrs Arpa said that she could not recall having attended a medical appointment with pain specialist, Dr Clayton Thomas, organised for her by Maurice Blackburn. She was also unable to recall having signed medical authorities so as to enable Maurice Blackburn to request medical reports from her treating practitioners.
72 The TAC correspondence relating to her claim indicated that Mrs Arpa’s matter was handled by Ms Geraldine Collins of Maurice Blackburn. Ms Collins swore an affidavit in this matter on 8 January 2018, in which she confirmed that Mrs Arpa’s file had been destroyed. Ms Collins stated that she had been the solicitor acting for Mrs Arpa at the time, and that it was her consistent practice to advise a client who was injured in a transport accident, as to possible no fault benefits and common law damages. Ms Collins also stated that it is an “unwavering” practice to explain the six year limitation period for the bringing of such common law claims.
73 The contents of this affidavit were put to Mrs Arpa in cross-examination, who insisted that Maurice Blackburn had advised her at the time that she was out of time to bring a claim. In circumstances where the documents demonstrate that Maurice Blackburn acted for Mrs Arpa in 2000 and 2001, I consider this to be an obvious example of confusion on the part of Mrs Arpa.
74 Mrs Arpa also insisted that she only ever attended the Maurice Blackburn office in Geelong on one occasion. It is unclear from her affidavit, or from the tendered material, whether or not Ms Collins ever worked in the Geelong office.
75 In September 2009, following encouragement from family and friends, Mrs Arpa attended Slater & Gordon to seek further advice regarding possible entitlements she may have in respect of the 1998 accident. Mrs Arpa recalled being told that she was outside the limitation period and that nothing could be done for her.
76 In May 2014, Mrs Arpa again consulted Slater & Gordon; however, on this occasion, for the purpose of obtaining advice regarding possible entitlements she may have in respect of the 2013 accident. In the context of receiving this advice, Mrs Arpa received further advice in relation to the 1998 accident. She decided not to instruct Slater & Gordon as she did not agree to the financial terms of the retainer they offered her. Subsequent to that appointment, Mrs Arpa received a detailed letter of advice from Slater & Gordon, including advice as to her ability to seek an extension of time in respect of the 1998 accident. In cross-examination, Mrs Arpa accepted that she had received this letter, but said that, aside from the advice given in respect of her entitlements, she could not recall reading the letter in any detail. After having been asked to re-read the letter, Mrs Arpa claimed that it contained more legal advice than had been discussed with her at the conference.
77 Mrs Arpa then decided to seek alternate legal advice and, in September 2014, attended her current solicitors, Nowicki Carbone. She said that she was initially advised that she could pursue her entitlements in respect of the 2013 accident, but that it was unlikely she would be able to recover damages in respect of the 1998 accident. However, after obtaining material on her behalf, in June 2016, Mrs Arpa said that she was advised to pursue a claim in relation to the 1998 accident.
The 2013 accident and its consequences to Mrs Arpa
78 Mrs Arpa said that the April 2013 accident resulted in a significant aggravation of her neck and lower back pain, following which she has continued to suffer referred pain from her neck into her right arm.
79 On 6 May 2013, Mrs Arpa lodged a claim for compensation with the TAC in respect of the injuries she had suffered in the 2013 accident. In her claim form, Mrs Arpa stated that she suffered pain in her “neck, plus shoulder, arm going into hip area. Lower back.” She acknowledged that she had previously suffered pain in her lower back, neck, hip and shoulders.
80 In November 2013, due to her complaints of chronic neck pain, which radiated into her right arm, Dr Tine arranged for a CT scan to be performed of Mrs Arpa’s cervical spine. The CT scan report, dated 15 November 2013, stated that there was a moderate loss of intervertebral disc height at C6-7, with degenerative endplate changes and focal central disc protrusion. It was then recommended that an MRI scan be performed, given the clinical presentation of right sided radiculopathy.
81 On 13 January 2014, an MRI scan was performed of Mrs Arpa’s cervical spine. It was reported as demonstrating multilevel cervical and upper thoracic facet osteoarthropathic changes, predominantly involving the left C4-5 and left C5-6 facet joints. It was also noted that there was a moderate left sided foraminal stenosis at the C3-4 level due to hypertrophy, as well as a non-compressive disc bulge at C6-7.
82 In May 2014, the TAC arranged for Mrs Arpa to be assessed by occupational therapist, Ms Claire Perry. In a report dated 6 June 2014, Ms Perry recommended that Mrs Arpa be provided with some home help assistance, as well as equipment to assist her in cleaning the bathroom without the need to bend.
83 On 15 September 2014, an x‑ray was taken of Mrs Arpa’s lumbar spine, which disclosed severe disc degenerative disease at L2-3, and facet joint osteoarthritis in the lower lumbar spine.
84 In July 2015, Mrs Arpa was examined by orthopaedic surgeon, Mr Garry Grossbard. In his report dated 3 July 2015, Mr Grossbard was of the opinion that Mrs Arpa suffered longstanding back and neck issues associated with features of chronic pain. He believed that Mrs Arpa suffered some degree of whole person impairment in her thoracolumbar and cervicothoracic levels, with a reduced range of motion. He was of the opinion that such impairment pre-dated the 2013 accident.
85 In September 2015, Mrs Arpa was examined by occupational physician, Dr David Fish. In his report dated 7 September 2015, Dr Fish was of the opinion that Mrs Arpa suffered pre-existing degenerative changes in her cervical and lumbar spine, which had likely been aggravated by the accidents. However, Dr Fish was of the opinion that the lumbar symptoms had returned to a pre-accident level, and that the cervical symptoms were in keeping with the natural progression of the disease.
86 On 24 May 2017, Mrs Arpa said that she fell over while getting into her car. In December 2017, Mrs Arpa attended the Pain Matrix Clinic in Geelong, where she consulted a pain specialist, an occupational therapist and various psychologists. The occupational therapist, Ms Michelle Taylor, recommended equipment to assist Mrs Arpa within her home, as well as treatment to assist her in techniques for performing tasks, together with pain education.
87 Mrs Arpa consulted Ms Taylor on six occasions through to August 2018. Ms Taylor recommended that such therapy continue, to assist Mrs Arpa completing tasks, and increasing her activity and social participation. In a report dated 25 August 2018, Ms Taylor was of the opinion that, with ongoing assistance, Mrs Arpa would have the capacity to undertake minimal hours in administrative work, provided she was given the correct equipment and was able to take multiple rest breaks. Ms Taylor considered that Mrs Arpa would be able to implement these conditions if she worked from home.
88 On 24 February 2018, Mrs Arpa had a fall while at a friend’s house, which caused her to fracture a rib. She required treatment at the Geelong Hospital.
89 In her oral evidence, Mrs Arpa said that the back spasms are of concern to her, as they had caused her to fall on numerous occasions. In her affidavit dated 19 April 2018, Mrs Arpa stated that she had not suffered these spasms prior to the 2013 transport accident. In cross-examination, however, she conceded that she had suffered such spasms prior to the 2013 accident, and had fallen over on occasions as a result. However, she maintained that the spasms were not as frequent as they have been since the 2013 accident.
90 In March 2018, Mrs Arpa was examined by orthopaedic surgeon, Mr Gary Speck. In his report dated 29 March 2018, Mr Speck was of the opinion that Mrs Arpa suffered soft tissue injury to her cervical and lumbar spine, “in the process of degenerative change” and that such conditions had been aggravated in the 1998 accident and had “never resolved.”
91 In a supplementary report dated 16 January 2019, Mr Speck was asked to re-consider his opinion, after having been provided with additional medical material relevant to the 1985 and 1998 accidents. Mr Speck was of the opinion that Mrs Arpa’s ongoing symptoms were consistent with a pain syndrome, the exacerbation of which, following the 2013 accident, was only temporary.
92 On 10 May 2018, a further MRI scan was taken of Mrs Arpa’s cervical spine. It was reported as demonstrating largely unchanged C6-7 spondylosis with mild multilevel cervical spondylosis with prominent degeneration of a left C3-4, and the potential for left C4 impingement. An MRI scan of Mrs Arpa’s lumbar spine taken that day demonstrated near complete collapse due to degeneration at the L2-3 disc level, with right lateral recess stenosis and potential for right L3 impingement. It was further noted that there was Grade 1 degenerative listhesis of the L4-5 with bilateral recess stenosis, with potential impingement of both L5 nerves at L4-5.
93 On 23 May 2018, Mrs Arpa was referred to orthopaedic surgeon, Mr Greg Etherington. In a letter dated 4 June 2018, Mr Etherington noted that Mrs Arpa had suffered injuries in the 1998 and 2013 accidents. At the time of his examination, Mr Etherington noted that Mrs Arpa had pain in her lumbar spine which extended into the left and right legs, with some intermittent numbness in her left toes. He also noted that she complained of lower cervical pain, with pain radiating into her right shoulder and paraesthesia in her hands.
94 Mr Etherington examined Mrs Arpa and reviewed the medical imaging. He was of the opinion that her problems related to degenerative changes in her lumbar and cervical spine as well as her weight. Mr Etherington was ultimately of the opinion that he could not treat Mrs Arpa surgically and he recommended that she consult Dr Chandler at Pain Matrix in Geelong.
95 In February 2018, Mrs Arpa resumed hydrotherapy treatment with Ms Deans. In her report dated 15 July 2018, Ms Deans detailed her consultations with Mrs Arpa and the variation in her sitting, standing and walking tolerances. Ms Deans noted a significant functional decline in Mrs Arpa from the time she had first treated her in 2008, such that she was now at a high risk of having falls. Ms Deans was of the opinion that Mrs Arpa’s injuries have had a significant impact upon her capacity for employment, domestic duties and social and leisure activities. Specifically, Ms Deans was of the opinion that Mrs Arpa would be unlikely to return to light administrative work of 15 hours per week, due to the nature of the degenerative condition in her spine.
96 In June 2018, Dr Thomas re-examined Mrs Arpa. At this time, he did not consider there to have been a substantial worsening of her condition since the 2013 accident, and he thought it unlikely that this accident left her with a degenerative or progressive disorder.
Employment after 2013
97 Following the 2013 accident, Mrs Arpa continued to work on a part-time basis for her employer’s loan business. Despite suffering increased pain while sitting and standing, Mrs Arpa said that she was able to continue in this employment as she had an understanding boss, a comfortable chair and flexibility in the performance of her work tasks. Although she found it harder to cope with walking and sitting, Mrs Arpa said that she was able to continue in her employment with the use of pain medication.
98 At some stage in approximately 2014 or 2015, Mrs Arpa’s employer changed his business and commenced offering hire purchase contracts, instead of short-term loans. In approximately October 2015, due to this change in the nature of the business and the concerns of her boss regarding security at the location of the business, which was in a shopping centre, it was agreed that Mrs Arpa would work from home. At her employer’s request, Mrs Arpa’s hours were also reduced from 28 to 25 per week, although Mrs Arpa said that she continued to be paid the same wage of $500 per week, as compensation for using her own electricity and telephone. Mrs Arpa said that she found it “better” to be able to work from home and described this employment as “ideal.”
99 In June 2016, Mrs Arpa’s employer closed his business for financial reasons, and Mrs Arpa was made redundant. Had the business not closed, Mrs Arpa believed that she would still be working there part-time.
100 Since being made redundant, Mrs Arpa said that she has applied for a considerable number of part-time jobs, each varying from 12 to 20 hours per week, and all of an administrative nature, including reception work. She said that she has only been called in for about four interviews, and has not been successful to date. Mrs Arpa said that she applies for jobs which are close to her home, with nearby parking.
101 Mrs Arpa said that she would try to work up to 20 hours per week, but that she feels 12-15 hours is more realistic. She believes that her pain levels would interfere with her ability to attend work on a regular and consistent basis if her hours were any longer.
Current consequences
102 Mrs Arpa continues to consult her general practitioner, Dr Tine, on a monthly basis to obtain scripts for medication. She currently takes Tramadol, Panadeine, Panadol Osteo and Panadol. She also uses heat packs. She said that the medication she takes is similar to that which she took in 1998, but that she now takes such medication in greater amounts.
103 Mrs Arpa is of the understanding that the best way for her to be active is to go to the pool, as she is pain free when in the water. She continues to attend hydrotherapy exercises twice a week, and feels that these classes have assisted her, such that the pain levels in her spine are now 8 out of 10, as compared with 11 out of 10 before the hydrotherapy.
104 Mrs Arpa said that the pain in her lower back is now much worse than it was prior to the 2013 accident. She also said that the pain she now experiences in her neck and shoulders is different to and worse than the pain she suffered in the period after the 1998 accident.
105 Mrs Arpa said that she is able to drive her car, but that she finds it difficult as it is painful to turn her neck.
106 Mrs Arpa is able to do some of the shopping, but said that her husband now normally does it. She said that she would struggle to lift more than two kilograms, and that this has been a restriction following the 2013 accident.
107 Mrs Arpa said that she can complete up to 30 minutes of housework per day, and that she does the light tasks, slowly, and at her own pace. Mrs Arpa said that she does a lot of the jobs while she is sitting down. By way of example, she sits while pushing the vacuum cleaner, or while hanging clothes on a clothes horse.
108 Mrs Arpa said that she helps her husband with some of the cooking at home, and still does some baking. However, she said that she does this slowly, and with her husband’s help. By way of example, she said that she will get her husband to take the cake in and out of the oven.
109 Mrs Arpa said that she has lost a lot of friends as she and her husband do not socialise as much as they used to. She said that while she can go out to restaurants, they tend not to due to her pain levels.
Reliability
110 Ms Arpa was an incredibly poor historian. Her failure to recall the 1985 accident, following which she was off work for two years and for which she instructed solicitors to claim benefits for her lost income, is the most obvious example of her unreliable memory. At various other times throughout the course of her oral evidence, Mrs Arpa was clearly confused as to the nature and timing of certain events. Such confusion was most clearly evident in her repeated assertion that Maurice Blackburn had advised her that it was too late to bring a common law claim.
111 However, despite such unreliability, Mrs Arpa’s complaints in relation to her symptoms, and the restrictions they have subsequently caused her, have been relatively consistent in the voluminous material, covering a 21 year period, tendered in this matter. I considered her acknowledgement that the hydrotherapy classes have recently improved her pain levels to demonstrate Mrs Arpa’s honesty, and her desire to cooperate as a witness.
112 Overall, while I accepted Mrs Arpa to be a genuine and credible witness, her unreliability was such that, save for her current consequences and any relatively recent events, I have relied upon the contemporaneous records in this matter, as providing a more objectively reliable representation than Mrs Arpa’s memory.
1998 accident – are the consequences to Mrs Arpa serious?
113 As Mrs Arpa seeks leave to commence common law proceedings in respect of her spinal impairment, she must first satisfy me that she suffered a physical injury to her spine in the 1998 accident.
114 The TAC relied upon medical reports from Dr Gray-Thompson, Dr Morris, Mr Summers, Mr Williams, Dr Thomas, Mr Marshall, Mr Grossbard and Mr Speck, to support its claim that Mrs Arpa suffers a chronic pain condition.
115 It is apparent to me that Mrs Arpa has struggled to deal with her ongoing pain, and I note that numerous doctors have referred to the psychological aspects of her pain presentation. However, any psychological aspect to her presentation does not detract from there being a substantial organic basis to her spinal impairment. I am satisfied that, in the 1998 accident, Mrs Arpa suffered soft tissue injuries to her lumbar and cervical spine. Both Dr Morris and Mr Swann provided this diagnosis at the time. I am further satisfied that such symptoms have persisted since that time.
116 I also note that medical imaging taken in recent years demonstrated disc degeneration. While no CT or MRI scans were taken in the period after the 1988 accident, but before the 2013 accident, I consider Mrs Arpa’s consistent complaints of pain during this period to be consistent with aggravation of pre-existing degenerative changes.
117 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[2] it was held that, once the court has accepted there to be a substantial organic basis for the claimed impairment, the plaintiff does not need to disentangle the physical contributions from the psychological contributions.[3] For the reasons stated above, I am satisfied that there is an organic basis to Mrs Arpa’s spinal impairment.
[2][2013] VSCA 201
[3]Ibid, at [21]
118 The defendant relied heavily upon Mrs Arpa having suffered similar injuries in the 1985 accident. The contemporaneous evidence from 1985 and 1986, is to the effect that Mrs Arpa took approximately two years off work, during which time, due to her lower back and neck pain, she spent most of her day lying down. It was also noted that Mrs Arpa had difficulties with sleeping, walking, and driving the car, and that she had gained weight.
119 Mrs Arpa said that she could not recall the 1985 accident at all, and had not therefore mentioned it to any of her doctors. In circumstances where I accept Mrs Arpa as a credible but unreliable witness, I make no criticism of her inability to recall this accident.
120 There are no further medical records for the period covering 1986 until 1998. I note that Dr Morris’s written correspondence to the TAC after the 1998 accident, made no reference to any prior complaints of lower back and neck pain.
121 I also note that the TAC claim form, completed by Mrs Arpa the day after the 1998 accident, refers to her left ankle injury, as being the only pre-existing condition from which she had suffered three years earlier. I consider this contemporaneous document to fairly depict Mrs Arpa’s state, as at the time of the 1998 accident, and am of the opinion that it confirms Mrs Arpa’s oral evidence in relation to there being an absence of any ongoing lower back or neck pain at the time of the 1998 accident. In such circumstances, in assessing the impairment arising from the 1998 accident, it is not necessary for me to disregard any pre-existing impairment.
122 In circumstances where Mrs Arpa aggravated her spinal impairment in the 2013 accident, and where it is impermissible for me to aggregate the impairments arising from each of the accidents, in assessing Mrs Arpa’s serious injury application for the 1998 accident, I have assessed only those consequences which existed in the period of time immediately prior to the 2013 accident.
123 Having considered the whole of the evidence, I am satisfied that Mrs Arpa suffered the following consequences as a result of the spinal injury she suffered in the 1998 accident:
· The need for daily pain medication. I accept that Mrs Arpa has consistently taken Tramadol and Panadol since that time. Her attendance upon Dr Tine in the weeks prior to the 2013 accident indicated that, at that stage, she was prescribed 200 milligrams of Tramadol twice daily, together with Panadol Osteo and anti-inflammatory medication.
· Restriction in her sitting and standing tolerances. I accept that Mrs Arpa was able to accommodate these restrictions in her job with the loan company, with use of a comfortable work chair, a car park outside, and no need to walk errands. In circumstances where her employer was able to accommodate her restrictions in this way, I am satisfied that Mrs Arpa was able to cope in this employment, and that she was able to work 28 hours per week from 2006 until the time of the 2013 accident. I also consider it significant that these sitting and standing restrictions remained consistent over an extended period of time, as documented by Ms Pickering in her reports of 1999 and 2009.
· Restriction in her ability to perform housecleaning to the level that she had previously undertaken. Such restriction has resulted in the need for home help services, paid for at times by the TAC.
· Back spasms that were severe and unpredictable, such that they caused Mrs Arpa to fall at times. These spasms also resulted in Mrs Arpa requiring modifications in her home to minimise the risk of falling. Mrs Arpa paid for most of these modifications privately, save for an extra handrail on the back step and a portable vacuum cleaner, which were paid for by the TAC.
· Interference in her sleep, such that on 4 November 2002, Dr Morris requested a recliner chair to assist Mrs Arpa with her sleep.
· The need for physiotherapy and hydrotherapy treatment.
· No longer dancing at the Italian Club.
· No longer walking her dogs on a regular basis.
124 Having considered all of these consequences, I am satisfied that the consequences to Mrs Arpa from the 1998 accident can be described as at least very considerable.
Is it just and reasonable to extend the limitation period?
125 In circumstances where I am satisfied that Mrs Arpa suffered a serious injury as a consequence of the spinal impairment she sustained in the 1998 accident, she must first obtain an extension of time, in order to proceed with her common law claim for damages, as her claim was issued outside the six year limitation period.
126 The limitation period for Mrs Arpa’s 1998 accident expired on 9 September 2004. The relevant period of delay commenced from the date the cause of action accrued, until the date the amended Originating Motion was issued on 18 May 2018.[4] That is a delay of 19 years and 8 months.
[4]Prince Alfred College Incorporated v ADC [2016] HCA 37, at [109]; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7
127 In determining whether it is just and reasonable to grant Mrs Arpa an extension of time, s23A(3) of the Limitation of Actions Act requires that I have regard to all of the circumstances of the case, including the following matters:
“(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.”
128 This list of factors is not exhaustive, nor should each of the individual factors be weighed against the other. In an application of this kind, the court must endeavour to “synthesize a number of competing considerations in arriving at a conclusion that takes account of them all.”[5]
[5]Tsiadis v Patterson (2001) 4 VR 114, at [33]
Relevant factors to consider
129 I shall now consider those factors in s23A(3) which are relevant to this case.
(a) The length of and reasons for the delay on the part of the plaintiff
130 I consider the length of the delay in this case to be substantial. It was almost 20 years from the time of the accident until the Originating Motion was amended in this matter, to include a claim in respect of the 1998 accident.
131 The reason for the delay in this matter appears to be the legal advice provided to Mrs Arpa by the law firms she consulted regarding the 1998 accident.
132 Mrs Arpa instructed Maurice Blackburn within the limitation period. Unfortunately, the file pertaining to the advice provided to her has since been destroyed.
133 Mrs Arpa was insistent that she had only attended Maurice Blackburn on one occasion. Given her poor memory, it may be that Mrs Arpa’s contact with Maurice Blackburn is something about which she is genuinely mistaken. However, I also consider it possible from the documents which still exist and which were tendered, that Maurice Blackburn was able to gather the medical material and seek both an impairment benefit and a serious injury certificate, without requiring Mrs Arpa to attend their office beyond the first appointment.
134 I accept the evidence of Ms Collins that, in accordance with her well-established practice, she would have advised Mrs Arpa as to what was involved in bringing a common law claim, including the limitation period. However, I accept Mrs Arpa’s evidence that she cannot recall having received this advice.
135 Having considered the material Maurice Blackburn obtained from Mrs Arpa’s treating medical practitioners, as well as the medico-legal report obtained from Dr Thomas, it would appear likely that Maurice Blackburn were of the opinion that Mrs Arpa’s prospects of success in an Originating Motion were limited, which thereby informed their decision not to issue such proceedings. In all likelihood, I accept that Mrs Arpa was informed of this decision, but is simply now unable to recall such advice. It is clear from her oral evidence that, following her discussion with Maurice Blackburn, Mrs Arpa was of the understanding that she was not entitled to claim pain and suffering damages. She therefore took no further action.
136 Mrs Arpa was given similar advice when she consulted Slater & Gordon in both 2009 and 2014. It was not until 2016, when Mrs Arpa consulted her current solicitors, that it was recommended she pursue a common law claim in relation to the 1998 accident.
137 I considered Mrs Arpa to be an unsophisticated lady, who both trusted and relied upon the advice she received from solicitors. This is not a situation where Mrs Arpa deliberately decided against making a damages claim.[6] She sought advice from solicitors, and proceeded to act upon such advice. I consider this to explain the reason for Mrs Arpa’s delay and her decision not to issue proceedings at an earlier point in time.
(b)The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
[6]Prince Alfred College Incorporated v ADC [2016] HCA 37, at [106]
138 The TAC submitted that it suffered both actual and presumptive prejudice as a consequence of Mrs Arpa’s delay.
139 In this case, there has been a delay of almost 20 years, which I accept constitutes presumptive prejudice to the TAC. Memories fade with the passage of time, as was clearly demonstrated by Mrs Arpa, who struggled to recall with certainty the symptoms she had experienced at different times, the treatment she had received, and her changing work arrangements.
140 In relation to actual prejudice, the TAC referred me to the absence of the following clinical records:
- Dr Terrence Reichl, Mrs Arpa’s general practitioner at the time of the 1985 accident;
- Dr Hoare, who referred Mrs Arpa to orthopaedic surgeon, Mr Coleman, and for whom she worked at the time of the 1985 accident;
- Bell Park Medical Centre, Mrs Arpa’s local medical practice, where she attended both prior and subsequent to the 1998 accident;
- Geelong Pain Clinic, where Mrs Arpa attended for treatment of injuries suffered in the 1998 accident.
141 I accept that the absence of these records causes the TAC some prejudice in defending Mrs Arpa’s damages claim. However, I note that there are two medical reports from Mr Swann detailing Mrs Arpa’s medical condition in the 15 months following the 1985 accident. There are also four reports from Dr Morris, in relation to the 1998 accident, covering the period 3 June 1999 to 4 November 2002, as well as a detailed medical report from Dr Gray-Thompson, from the Geelong Pain Clinic, detailing Mrs Arpa’s attendances.
142 If there was a dispute as to liability in this case, I accept that the presumptive prejudice to the TAC would have been greater, and that they may also have suffered more actual prejudice. However, nothing was put to me throughout the course of the hearing to suggest that this case would not proceed as an assessment of damages. In such circumstances, the prejudice is therefore confined. Despite the absence of clinical records prior and immediately subsequent to the 1985 accident, there are still some contemporaneous medical reports, which the TAC can use to challenge Mrs Arpa’s claim. In that sense, I do not consider the prejudice is so great that a fair trial is not possible.
(f)The steps, if any, taken by Mrs Arpa to obtain medical, legal or other expert advice and the nature of any such advice she may have received
143 Many of the consequences I have identified in this judgment, and upon which I have relied in granting leave to Mrs Arpa to bring a claim for common law damages in respect of the 1998 accident, existed at the time Mrs Arpa instructed her former solicitors, Maurice Blackburn. My decision to now grant a serious injury certificate might, on the face of it, indicate potential negligence against those solicitors. Maurice Blackburn were not a party to the proceedings, and save for the filing of an affidavit, made no submissions in relation to this matter. It would therefore be inappropriate for me to make any findings in relation to any potential negligence.
144 The authorities have previously held that, in determining an application for the extension of time, a court may consider any potential negligence claim against a plaintiff’s former solicitor.[7] However, in circumstances where any such claim (if one ever existed), against Maurice Blackburn, would in itself be statute barred (with no prospect of an extension of time, in circumstances where it is a professional negligence claim), I disregard any potential negligence as a factor in this case.
[7]Tsiadis v Patterson (2001) 4 VR 114, at [28]; Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517
145 It would appear that Mrs Arpa was advised of the potential to bring an extension of time application by Slater & Gordon in September 2009, despite not having any recollection of ever receiving such advice. In circumstances where such a course of action was not recommended to Mrs Arpa, I consider it reasonable that she dismissed the possibility of bringing an application, based on the legal advice provided to her at that time.
146 I further note that when Mrs Arpa first instructed Nowicki Carbone, she was not immediately advised to proceed with an application for an extension of time regarding the 1998 accident. However, once medical material was obtained, Mrs Arpa was then advised to proceed with a claim, following which, in July 2016, she swore an affidavit and served it on the TAC.
147 At all times, Mrs Arpa was acting on the advice of experienced solicitors. As I have stated previously, I consider Mrs Arpa to be an unsophisticated woman. In such circumstances, I consider her failure to issue an Originating Motion within time and her further delay in making an application for an extension of time, to be understandable.
Synthesis of these competing considerations
148 The granting of an extension of time involves a synthesising of these factors. I should exercise my discretion if I am satisfied that it is just and reasonable to do so.
149 As part of the synthesising process, it is necessary to consider whether or not the presumptive and actual prejudice suffered by the defendant is so great that a fair trial is not possible. It need not be an ideal trial, but one that is acceptably fair.[8] The 1998 accident occurred over 20 years ago which, in itself, gives rise to presumptive prejudice. However, I consider it significant that there is no issue as to liability in respect of the 1998 accident. The prejudice suffered by the TAC is therefore limited to the evidence it would otherwise have sought to adduce in respect of damages.
[8]Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517, at [79]
150 I accept that actual prejudice has been suffered by the defendant as a consequence of medical records having been destroyed.
151 I reject Mr Ingram’s submission that the TAC ought to have requested Mrs Arpa’s clinical records, at a time when such records still existed, if it had required satisfaction of the relationship between Mrs Arpa’s injuries and the 1998 accident. It would be a considerable imposition upon a statutory insurer to expect that it request the clinical records of a plaintiff, in mere anticipation of that plaintiff bringing a damages claim out of time.
152 However, in circumstances where there are numerous medical reports which detail Mrs Arpa’s symptoms, complaints and need for treatment over an extended period of time, I consider the actual prejudice suffered by the TAC, from the destruction of clinical records, to be minimal. There is a great deal of contemporaneous medical material which the TAC will be able to put to Mrs Arpa in cross-examination, in its defence of her damages claim.
153 I am satisfied that a fair trial in relation to the 1998 accident is possible. I am also mindful that, if an extension of time is not granted, Mrs Arpa will have no further entitlement to damages for the injuries she suffered in the 1998 accident. Having considered all of the relevant factors, I have concluded that it is just and reasonable for Mrs Arpa to be granted an extension of time in this case.
Aggravation of Mrs Arpa’s spinal injury in the 2013 accident
154 In circumstances where I am also satisfied that Mrs Arpa was suffering an impairment to her spine at the time of the 2013 accident, I must, in assessing her entitlement in respect of this accident alone, make a comparison between Mrs Arpa’s pre-existing spinal impairment, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[9] I must consider only the consequences arising from the aggravation.
[9][1994] 1 VR 436
155 As detailed in paragraph 123 above, I am satisfied that Mrs Arpa suffered a multitude of consequences at the time of the 2013 accident. I must disregard each of these consequences in determining her application for the 2013 accident, that is, I can only consider the additional impairment and the consequences brought about by the 2013 accident.[10]
[10]R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51, at [40]
156 The CT and MRI scans taken in November 2013 and January 2014 confirm that there is disc degeneration in Mrs Arpa’s lumber and cervical spine. I am satisfied that these degenerative changes were aggravated in the 2013 accident. Further, as Mrs Arpa’s complaints of spinal pain have persisted since that time, I am also satisfied that the 2013 accident remains a cause of her current spinal impairment.
157 I am not satisfied that Mrs Arpa has suffered financial disadvantage as a consequence of the 2013 accident. Mrs Arpa persisted with her pre-injury hours of employment, performing similar duties, until her employer, for reasons of his own, changed her work arrangements, such that she worked from home, working slightly less hours per week. Mrs Arpa was then made redundant when the business closed down, and not as a consequence of her spinal injuries. Mrs Arpa accepted that if the business had not closed, she would likely still be working for her employer. She also said that, if she was able to gain employment in a position where she was able to work 20 hours per week that she would give it a go.
158 I accept that Mrs Arpa’s employability on the open market may be restricted due to her spinal impairment. However, I note that Mrs Arpa had previously been placed on a part disability pension due to her right knee impairment and that, notwithstanding such an impairment, or the spinal impairment she subsequently suffered as a result of the 1998 accident, Mrs Arpa was still able to obtain employment consistent with her injuries, and was able to persist with such employment. Mrs Arpa is now 58 years of age. I am not satisfied that her inability to obtain employment since being made redundant is a consequence of the additional spinal impairment suffered since the 2013 accident.
159 Mrs Arpa claims that, since the 2013 accident, she has experienced referred symptoms into her right arm, which have resulted in her dropping many items, and being restricted to lifting only two kilograms. She claimed that she did not have persisting shoulder pain after the 1998 accident. However, there is reference to shoulder pain in a multitude of medical reports up to February 2012. There is also a note from 2000, in which it was recorded that Mrs Arpa often dropped things.
160 As I cannot reconcile the degree of impairment to Mrs Arpa’s right arm which existed prior and subsequent to the 2013 accident, the comparison required by Petkovski is impossible. I therefore disregard this claimed consequence.
161 I consider there to have been only a marginal change in Mrs Arpa’s pain medication since the 2013 accident. Mrs Arpa was on Tramadol and Panadol Osteo at the time of the 2013 accident. Although she has taken Endone for extended periods of time since the 2013 accident, she now rarely does, as she said that her doctor is limited in his ability to now prescribe it. I accept that, since the 2013 accident, Mrs Arpa has suffered constipation from the pain medication, and now needs to take laxative medications. I attach only modest significance to this alteration in her medications.
162 I do, however, accept that Mrs Arpa’s pain level is now at a higher level than it was before the 2013 accident, despite her recent improvement from hydrotherapy.
163 I also accept that Mrs Arpa’s sitting, standing and walking tolerances have further decreased since the 2013 accident. This deterioration is noted in the numerous medical reports, and most notably in the very detailed observations of Ms Deans, who has treated Ms Arpa prior and subsequent to the 2013 accident.
164 I accept that Mrs Arpa’s level of activity within the home has further declined, such that she now rarely cooks. I note that after the 1998 accident, but before the 2013 accident, Mrs Arpa still had a small number of friends or family at her home for whom she would cook and entertain. I accept that Mrs Arpa enjoyed being able to entertain in this way, but that she has completely stopped since the 2013 accident.
165 In making this comparison, I am also assisted by the unchallenged evidence of Mrs Arpa’s friend, Ms Rosa Lauva. As Ms Lauva has only become a close friend in the last 15 years, she is able to readily identify the consequences which have arisen following the 2013 accident. Ms Lauva stated that Mrs Arpa no longer participates in social activities, such as going out to lunch, shopping trips or attending an annual festival in Geelong. Further, Ms Lauva also stated that, since the 2013 accident, she has observed that Mrs Arpa moves more slowly, that she is reluctant to leave her home and that within her home, she is not as hospitable as she was before.
166 In such circumstances, I am also satisfied that the consequences to Mrs Arpa from her aggravated spinal impairment can be described as at least very considerable, such that she should be granted leave to commence common law proceedings for the 2013 accident.
Conclusion
167 I shall make consequent orders.
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