Basile v Pugh (Ruling)
[2024] VCC 39
•13 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-22-05001
| ANTONIO BASILE | Plaintiff |
| v | |
| LESLIE PUGH | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 30 October, 14 December 2023 | |
DATE OF RULING: | 13 February 2024 | |
CASE MAY BE CITED AS: | Basile v Pugh (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 39 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury – application to bring claim for common law damages out of time – substantial delay in bringing claim – prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958, s23A; Transport Accident Act 1986
Cases Cited:WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2) [2020] VSC 639; Tsiadis v Paterson (2001) 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Repco Corporation v Scardamaglia [1996] 1 VR 7; Griffiths v Nillumbik Shire Council [2022] VSCA 212
Ruling: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr G Taylor | Arnold Thomas & Becker |
| For the Defendant | Mrs R N Annesley KC with Ms A L Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The short question to be answered in this proceeding is whether a period of limitation should be extended, where the common law proceeding was commenced twenty-four years after the cause of action arose, in circumstances where the parties have a different recall of the relevant events, an independent witness is now deceased, and the plaintiff’s explanation for letting so much time pass is vague and hardly compelling.
2It may be no surprise, then, that the short answer is “no”.
3I shall explain why in the reasons that follow, commencing with relevant background information and then a timeline of agreed facts and dates, before moving to consider the evidence, the parties’ contentions and a synthesis of all relevant matters.
Background and the collision
4This is an application for an extension of time in respect to a common law proceeding for damages commenced by the plaintiff, Mr Antonio Basile.
5According to a Victoria Police Collision Report,[1] at approximately 5:05 PM on 6 November 1998, the plaintiff was riding his motorcycle in a westerly direction along Douglas Street, Rosanna, when he collided with a utility vehicle then driven by Mr Leslie Pugh (“the defendant”) (“the collision”).
[1]Amended Joint Court Book (“AJCB”) 204.
6The relevant period of limitation expired on 6 November 2004.
7The plaintiff commenced the common law proceeding by writ filed 23 November 2022.
8By a statement of claim dated 29 March 2003, the plaintiff made several allegations including that the defendant was negligent by reversing from a driveway and into the path of the motorcycle then ridden by him.
9By a defence dated 27 April 2023, the defendant admitted that the collision occurred, but denied negligence. Specifically, the defendant denied that he was reversing from a driveway at the time of the collision and pleaded that he was making a left-hand turn into a driveway at the time of the collision.
10Based on the pleadings, the plaintiff and the defendant have different recollections of the circumstances now over twenty-five years ago that caused the collision. In that sense, it is a classic contest where recollections and versions differ. It is the sort of contest where the observations of independent witnesses, if such witnesses exist or are available, may be influential to the result.
11Police attended the scene of the collision. The handwritten Police Incident Report and related typed licence, registration and patrol summary are available.[2]
[2] AJCB 128-142.
12The Police Incident Report was completed by Senior Constable Bolitho (“Bolitho”) who recorded several relevant matters in it. First, it was recorded that police attended the scene at 5:35 PM. Second, it recorded the identity of the people involved. The defendant’s details were recorded in the section for “Unit 1 offending driver (if applicable)” and the plaintiff was recorded as “Unit 2”. Third, a handwritten diagram of the scene was made, which notated the parties’ vehicles, adjacent parked cars and an approximate 6-meter skid mark from the plaintiff’s motorcycle. The diagram also notated the position of an independent witness. It noted that the defendant was reversing out of a driveway at the time of the collision.
13Apart from the Police Incident Report and the related documents, enquiries made on behalf of the defendant reveal that the full police file (if one existed) is no longer available.
14Bolitho was spoken to on behalf of the defendant in a phone interview held on 19 July 2022. He said he now has little and/or no recall of the collision and the information in the Incident Report was of “little value with his attempt to recall the circumstances”.[3] He was also contacted by the solicitor for the plaintiff and asked about his recollection of the collision. He responded in an email sent 11 October 2023 that “I have absolutely no recollection. The narrative would be the circumstances of the collision at the time”.[4]
[3] AJCB 228.
[4] AJCB 287.
15In short, Bolitho did not witness the collision and he now has no independent recollection of any observations he made of the scene, or of the sources of information used to complete the Police Incident Report.
16Curiously, the handwritten incident report prepared by Bolitho recorded that the plaintiff’s motorcycle was pushed to a house on the same street by “friend of rider”.[5] The plaintiff gave no such evidence of any friend of his attending after the collision.
[5] AJCB 129.
17The Police Incident Report contained one fact that is agreed as incorrect, namely that the plaintiff was riding a low capacity ‘Postie’ motorcycle owned by Australia Post Corporation.[6]
[6] AJCB 48.
18The Police Incident Report identified a Mr Clyde Simpson (“Simpson”) as a witness.[7] Enquiries made on behalf of the defendant reveal that Simpson died on 31 January 2022.[8] No statement was taken from him by the police – in fact, there is no evidence that statements were taken by police from anyone involved in the collision. Simpson’s widow spoke to an investigator on behalf of the defendant and provided hearsay recollections of discussions she had with her husband about the collision. But there is no reliable basis to conclude what evidence Simpson may have been able to give.
[7] AJCB 50.
[8] AJCB 490.
19The Police Incident Report accurately recorded that the defendant was driving a ute that was owned by his then employer, Mr Robert Timms (“Timms”).[9] An investigator attempted to speak to Timms to see what evidence he could give. His wife, Pauline Timms, responded by email on 18 May 2023 and said “[w]e can’t remember the insurance company. My husband is in his 80s now, and his memory is not good. We are baffled by the fact that this has come up after 25 years”.[10]
[9] AJCB 49.
[10] AJCB 217.
20The plaintiff consulted solicitors soon after the collision. He instructed Russo Pellicano Carlei to pursue a property damage claim for the damage to his motorcycle. They wrote a letter of demand to the defendant on 26 February 1999.[11] There is no other evidence about the property damage claim, apart from the plaintiff’s evidence that RACV paid out for the damage to his motorcycle.[12]
[11] AJCB 24.
[12] AJCB 18.
21The plaintiff claimed that the collision caused him to suffer injury to the left leg and right ankle. The objective evidence is that the plaintiff suffered a fractured left tibia and fibular that was internally fixed. He went on to have the intra-medullary tibial nail removed. The plaintiff also suffered an injury to his right ankle which required surgery. There is no real dispute about the injuries he suffered. The dispute is more around the onset of significant symptoms in the right ankle.
22The plaintiff did not take any steps to obtain legal advice regarding any personal injury suffered in the collision until he attended his current solicitors on 30 April 2021, which was obviously well after the expiry of the relevant six-year limitation period. He eventually commenced legal proceedings after navigating the “serious injury” requirements. He has now made an application pursuant to s23A of the Limitation of Actions Act 1958 (“LAA”) to extend time.
A timeline of relevant dates and events
23I have already set out some of the background and facts that bring this application before the Court, but I will add to that with a chronology of key dates and events that are not in dispute.
24The plaintiff was born in 1978.
25The collision occurred at approximately 5:05 PM on 6 November 1998.
26The plaintiff completed a claim for compensation under the Transport Accident Act 1986 (“the Act”) by claim form signed by him at the Bethesda Hospital on 16 November 1998.[13]
[13]AJCB 236.
27The Transport Accident Commission (“TAC”) accepted the plaintiff’s claim for compensation and paid statutory benefits, including ongoing medical expenses.
28The plaintiff suffered a fracture of the left tibia and fibula, requiring open reduction and internal fixation. In addition, he suffered an injury to the right ankle, which also required surgery to debride the wounds and to remove detached articular cartilage from the joint. The plaintiff was re-admitted to hospital in January 1999 and the proximal cross bolt was removed from the left tibia.[14]
[14]Austin and Repatriation Medical Centre Report, dated 8 January 1999, AJCB 144.
29The plaintiff sought legal advice regarding the property damage to his motorcycle. By letter dated 26 February 1999, Russo Pellicano Carlei Solicitors wrote to the defendant, alleging that the collision was solely the cause of the defendant’s negligence by reversing from a driveway and claimed the costs of repairs to the plaintiff’s motorcycle.[15]
[15]AJCB 24.
30The plaintiff returned to employment with a company called Compumedics Pty Ltd (“Compumedics”). On 4 April 2001, he suffered a back injury in the course of that employment, which required him to undergo a right L4 hemi-laminectomy with excision of a disc prolapse and rhizolysis on 28 February 2002.
31The plaintiff consulted Maurice Blackburn Cashman lawyers in respect to the claim against Compumedics. The Maurice Blackburn Cashman file is not available,[16] but the plaintiff provided a letter to him from Maurice Blackburn Cashman dated 7 October 2003[17] in respect to a claim for an impairment assessment and subsequent referral to a Medical Panel.
[16] AJCB 312.
[17] AJCB 335.
32At some point, the plaintiff became dissatisfied with Maurice Blackburn Cashman and retained Ryan Carlisle Thomas to act for him in the claim against Compumedics. The Ryan Carlisle Thomas file is also not available. The plaintiff provided a letter he received from Ryan Carlisle Thomas dated 5 September 2005[18] confirming a common law settlement in respect to the back injury.
[18] AJCB 342.
33In October 2018, the plaintiff’s general practitioner, Dr Prema Kunz, referred him to Mr Andrei Cornoiu for problems with his right ankle. Mr Cornoiu wrote back to Dr Kunz on 30 October 2018 as follows:
“Thank you for referring [the plaintiff] to see me in regard to his troublesome right ankle.
As I understand it, [the plaintiff] sustained a motorbike accident in 1998 where he had a fractured left tibia and fibula that was internally fixed with an intermedullary nail that has since been removed. He also had an injury to his right ankle for which [he] had surgery at the time but has had ongoing problems since with increasing levels of pain over the last couple of years. He is now complaining of pain over the anterolateral part of the ankle, swelling and a feeling of instability. This is persistent and is not improving and is actually worsening. This happens on a daily basis.
[The plaintiff] is generally well and works on his feet. He has had no particular treatment for his ankle so far.
Clinically, [the plaintiff] has mild swelling around the right ankle with tenderness over the anterolateral ankle joint and anterolateral gutter of his ankle. His dorsiflexion range was decreased compared to the contralateral side to zero degrees. His inversion and eversion range were normal. His ankle was not unstable clinically. [The plaintiff] had no significant malalignment looking at his ankle.
Radiologically, [the plaintiff] has the signs of post traumatic osteoarthritis with osteophytes over the medial and lateral sides of the ankle as well as significantly over the anterior.
I have had a long discussion with [the plaintiff] regarding the current issues and ultimately, he is developing post traumatic osteoarthritis and unfortunately there is probably not a lot that we can do non-surgically to alleviate his symptoms. His end point in terms of surgery would be an ankle arthrodesis but I do not think he is at that point yet. Perhaps an arthroscopic debridement clean up may be of some help but he understand this is a temporising measure only and will not eliminate further surgery in the future. He understands there are risks with surgery and that he could be made worse.
I can organise for him to have a CT scan to assess the ankle a little better and will also get a claim from TAC before surgery.
I will keep you informed of his progress.”[19]
[19]AJCB 64-65.
34Thereafter, the plaintiff had several attendances on Dr Cornoiu, including for cortisone injections to try and manage the right ankle symptoms. Mr Cornoiu also undertook a right ankle arthroscopy in March 2019. However, due to persisting right ankle symptoms, the plaintiff eventually accepted advice from Mr Cornoiu to undergo an ankle arthrodesis. That procedure was performed in late August 2021.
35The plaintiff attended his current solicitors on 30 April 2021. By letter dated 6 May 2021, they wrote to the TAC, indicating that they intended to lodge a serious injury application on behalf of the plaintiff and enquiring as to whether the TAC was “prepared to apply the ‘waiver policy’ in this matter”.[20] I understand the reference to the waiver policy is a reference to whether the TAC would agree in the circumstances to not raise the limitation defence.
[20]AJCB 38.
36The plaintiff’s solicitors then issued an Originating Motion on 7 May 2021 seeking a “serious injury” and an extension of the period of limitation, notwithstanding that, at that point in time, there was no valid common law cause of action for which time could be extended. In lay terms, the issuing of the Originating Motion was to ‘stop the clock’.
37Next, on 18 May 2021, the plaintiff’s solicitors again wrote to the TAC and confirmed that they intended to “investigate his claim for compensation including his common law rights”, that they “intend to lodge a serious injury application”, noting that there had been no response to the request for a waiver and enclosing “for your information only” a copy of the Originating Motion”.[21]
[21] AJCB 43.
38The solicitor for the TAC filed an appearance under cover of letter dated 18 June 2021.
39The TAC wrote back on 13 July 2021 and advised that it would not apply the “waiver policy” as it only related to a request made within the six-year limitation period.[22]
[22] AJCB 202.
40The Originating Motion was listed for hearing but adjourned several times, for various reasons, including that the plaintiff had not made a “serious injury” application to the TAC. Eventually, on 25 May 2022, he made a “serious injury” application, pursuant to the relevant TAC protocols.
41On 16 September 2022, the TAC granted the plaintiff a “serious injury” certificate and provided consent for him to commence a common law proceeding.[23]
[23] AJCB 47.
42After the grant of “serious injury”, the Originating Motion was dismissed by consent. By that stage, it had been discussed between the parties that the limitation point would be raised in the common law proceeding.[24] The parties exchanged correspondence before the Originating Motion was dismissed. The plaintiff’s solicitors wrote to the TAC on 8 November 2022[25] and raised the outstanding matter of the limitation application and the TAC’s position that the limitation issue be dealt with in the common law proceeding. They sought an undertaking that an estoppel point would not be pursued in the event the Originating Motion was dismissed and a summons to extend time was subsequently issued as part of the common law proceeding. The TAC then wrote back on 10 November 2022 and confirmed that the extension of time should be dealt with as part of the common law trial and that “the TAC will not raise any estoppel point when the summons is issued seeking an extension”.[26]
[24]AJCB 173.
[25] AJCB 441.
[26] AJCB 443.
43Despite the agreement that an estoppel point would not be taken by the dismissal of the Originating Motion, in this application, the parties could not agree what was agreed. The plaintiff asserted that the TAC had agreed that time had been stopped when the Originating Motion had been issued, and was estopped from arguing otherwise – despite no such written agreement – whereas the defendant submitted that the only agreement was that the TAC would not argue that the dismissal of the Originating Motion meant that the plaintiff was estopped form pursuing an extension of time.
44In my opinion, the documentary evidence supports the construction advanced on behalf of the defendant regarding the estoppel issue.
45The common law proceeding was then commenced by writ on 23 November 2022. The statement of claim dated 29 March 2023 was filed with the Court on 6 April 2023. A defence was filed on 27 April 2023 that denied negligence, raised as an issue contributory negligence, identified that the cause of action accrued on 6 November 1998 and raised that the plaintiff’s claim was statute barred.
Relevant legislation
46The relevant legislation (and legal principles) is not in dispute.
47Sub-section 5(1)(a) of the LAA is relevant and provides as follows:
“(a) Subject to subsections (1AAA) (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;”
48Section 23A of the LAA provides as follows:
“Personal injuries
(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(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.
… .”
Legal principles
49The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to his common law proceeding.
50In determining whether the plaintiff has discharged his onus, I am required to consider 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 LAA.
51An important issue that arises in this application is whether the defendant is now able to have a fair trial. 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 Diocese of Sale (No 2):[27]
“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.”
(Footnote omitted.)
[27][2020] VSC 639 at [204].
52The discretion to extend a limitation period should be exercised in the context of the rationale for the existence of the limitation period. In an often-cited passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[28] 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”.
(Footnote omitted.)
[28](1996) 186 CLR 541.
53It is relevant that the legislation considered in Brisbane South is quite different to s23A of the LAA, but, as has been noted, the rationale 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.
54While sometimes the deterioration in the quality of justice is palpable, on other occasions prejudice may exist without the parties or anybody else realising that it exists. What has been forgotten can rarely be shown. Specific to this application, the vagueness of much of the plaintiff’s oral evidence – a topic to which I shall return – illustrates the effect that the passage of time can have on memory.
55The parties agree that the approach to be taken to the resolution of this application is as set out by Buchanan JA in Tsiadis v Patterson,[29] where his Honour said:
“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.’”
[29](2001) 4 VR 114 at paragraph [33].
The parties’ contentions
56The parties’ contentions may be summarised, and should be considered in the context that the relevant legal principles are not in dispute.
57The plaintiff contended in his supplementary submissions that the extension of time relates to a date from 7 May 2021, being the date of the Originating Motion and being “the date upon which the TAC was advised of the plaintiff’s intention to proceed with a CL [sic] claim”.[30]
[30] Exhibit P2.
58Next, the plaintiff accepted that it was a long time since the accident took place in November 1998.[31] But, he submitted in a synthesis of all relevant matters, the Court should extend the period of limitation.
[31] Transcript (“T”) 3, Lines (“L”) 15-16 (30 October 2023).
59Broadly, the plaintiff submitted that, despite the previous common law claim for his work-related back injury, he did not have knowledge of the six-year limitation period; he did not understand the concept of a common law claim for a car accident; and he did not understand that he was seriously injured until during 2018, when his condition began to deteriorate.
60During final submission, his senior counsel agreed that the plaintiff, when saying he did not appreciate the seriousness of his injury until 2018, was using the word ‘serious’ in a lay and not a legal sense. In other words, the plaintiff did not pursue a submission that he only appreciated he had a ‘serious injury’ within the meaning of s93 of the Act when his right ankle became bad during 2018. Rather, he submitted that it was only when his right ankle became a serious problem for him and after he saw the specialist that he fully appreciated how bad his injury was. He submitted that, once he appreciated how bad it was, he then acted promptly to seek advice from his current solicitors. He accepted that the period between 2018 and 30 April 2021 (when he consulted his current solicitors) was relevant but submitted that he acted reasonably in that period by pursuing treatment and maintaining optimism that his ankle injury could be successfully treated.
61Next, the plaintiff submitted that both he and the defendant were available to give evidence. He highlighted that the defendant appeared to have a good memory of events. The police attended the accident scene, and the Police Incident Report was available, as was Bolitho. While documents may have gone missing, the passage of time may have impacted recall, and Simpson was deceased, overall, an acceptably fair trial was still available to the defendant.
62On the other hand, the defendant opposed the application to extend the period of limitation. He submitted that, due to the passage of time, he had suffered both general and specific prejudice, such that a fair trial was now no longer available to him.
63The defendant opposed the extension of time, in part because there is a real contest as to the circumstances of the collision. He asserted that the plaintiff was riding his motorcycle at speed at a time when he was turning into a driveway, and that the speed of the plaintiff’s motorcycle was the cause of the collision. He disputed the plaintiff’s assertion that he was reversing from a driveway at the time of the collision.
64The defendant said specific prejudice arose due to the passage of time. His memory is now imperfect, the relevant witness is now deceased, so he is unable to corroborate his version of events, namely that the plaintiff was riding too fast. The death of the independent witness in circumstances where there was a real factual contest meant that an acceptably fair trial was not available to him.
65The defendant further submitted that the plaintiff’s own evidence was vague and unsatisfactory, to illustrate the fact that the delay was inordinate and that memories fade with the passage of time.
66The defendant also submitted that, in the context of his previous common law claim for his back injury, the plaintiff was always capable of seeking legal advice should he have chosen to do so. His ankle had been an ongoing grumbling problem for many years and had become bad by 2018, such that he should have acted sooner to seek legal advice. Therefore, he submitted that the plaintiff had not acted reasonably.
67The defendant also disputed that time was stopped by the issuing of the Originating Motion and/or by the plaintiff’s lawyers writing to the TAC in May 2021. He contended in reply submissions that time continued to run until such time as the plaintiff served the serious injury application on the TAC. He further submitted that simply issuing an Originating Motion did not stop time or require the TAC (as the insurer of the defendant) to take steps to investigate the claim, in circumstances where, until a “serious injury” application was lodged, the TAC lacked the requisite information to understand the proposed common law claim and whether it should be investigated. Once it had the requisite information, it responded to the ‘serious injury’ request and appropriately began to investigate the common law claim, at which point it became clear that Simpson was deceased.
68Overall, the defendant submitted that, in the synthesis of all relevant matters, the period of limitation should not be extended.
Evidence
69The parties tendered a Fourth Amended Joint Court Book that contained affidavits, with exhibits, and other relevant documents, including medical reports. The parties also provided written submissions that were taken as exhibits. The plaintiff gave oral evidence. I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions but will refer to it only to the extent necessary in these reasons.
The plaintiff’s evidence
70As mentioned, in the synthesis of all relevant matters, of relevance is the sworn evidence of the plaintiff, where he bears the onus to persuade the Court that the period of limitation should be extended. In fact, the issue of who bears the onus seemed at times to be lost on the plaintiff, especially in his submissions about the death of the independent witness.
71There were some inconsistencies within his affidavit evidence, but more relevantly, the plaintiff’s oral evidence was vague, lacked clarity and on several important issues was at best confused and at worst, was unreliable. It was not compelling for a conclusion that it was just and reasonable to extend the period of limitation.
72The plaintiff presented as a likeable man who was doing his best to answer questions as he thought appropriate. I do not consider that he was a dishonest witness, but he was often proven to be unreliable.
73I do not consider it necessary to set out his oral evidence in detail. The transcript reveals that it was littered with answers such as “I don’t recall”. Often, he made assertions of fact, only to then backtrack when objective evidence was presented to him that challenged the accuracy of his assertions.
74The takeaway from his oral evidence was that he had a general belief about various events, including the collision, but very little accurate or reliable recall of events. There was a sense that some of it had been reconstructed based on beliefs that he held, which were not borne out by the objective evidence.
75A few examples should suffice.
76First, his evidence regarding the speed he was travelling at when the collision occurred was hard to follow. He said in his first affidavit that he was travelling well within the speed limit which he believed “at the time was about 50 km/hr”.[32] Leaving to one side that speed limits do not normally provide for travel at about a certain speed, in his oral evidence he was asked to clarify if what he meant was that the speed limit was 50 kilometres. He said “No, I was doing 50 kilometres at the time as well”.[33] He next said he could not recall what the speed limit was at the time, but that he believed it was 50 kilometres an hour. However, when it was suggested that what he was saying was that he was travelling under that limit, he said vaguely that “It was only a brief second on that, so I – um, 50 kilometres was what I, ah, approximately doing”.[34]
[32] AJCB 6.
[33] T 14, L 7-8 (12 October 2023).
[34] T 14, L 9-19 (12 October 2023).
77He was cross-examined about checking his speedo and how he had estimated his speed. He said he recalled looking at the speedo but that was not immediately before the collision. The cross-examination then returned to the topic of the speed limit and his speed at the time of the collision, and again the plaintiff said he believed the speed limit was 50 kilometres per hour and what he was really saying was that he was travelling well within it, but that he did not know when he had last checked his speed before the collision.[35]
[35] T 15, L 2-25 (12 October 2023).
78He was then asked about his affidavit evidence that the defendant was a tradesman doing a job at the house in the street at the point of the collision. He gave a confused set of answers about the defendant mentioning that he was doing a trades job in the street. When asked if he spoke to the defendant as he (the plaintiff) was lying on the ground with a broken leg, he said “well, there was mention in the conversations of – of that”.[36] He then said that he heard that (the defendant was a tradesman doing a job in the street) from people who were passing, and that he saw the defendant was in a trades vehicle. He said that after the collision he was told that the defendant was involved in a trades job, but he could not say when he was told that.[37]
[36] T 16, L 2-15 (12 October 2023).
[37] T 17, L 1-11 (12 October 2023).
79In short, the plaintiff’s evidence about the collision was vague and had an element of reconstruction to it, rather than clear recall.
80Second, to further illustrate this point, he was asked about his evidence of his belief that the TAC arranged a circumstance report from Hardie Kerr & Associates, but when asked how he knew about Hardie Kerr & Associates being involved, he flip flopped from a position that it must have been information in the notes of the Bethesda Hospital, to one that he had been given that information from the TAC, to a final position of not being sure if that was something he had been told by his current solicitors.[38]
[38] T 17, L 28-31 (12 October 2023); T 18, L 1-29 (12 October 2023).
81Third, in respect to why he did not seek legal advice regarding the injuries suffered in the collision at an earlier time, consistent with what he said in his affidavits, he attempted to convey that it was not until about the time he saw his current solicitors that his ankle was bad enough to warrant seeing lawyers. But he retreated from that in an at times circular and confused series of answers during cross-examination, to he had niggling right ankle pain from the time of the collision, that at times required over the counter pain killers, with a progression of symptoms from about 2016 to 2018, so that he was restricted for several domestic and recreational hobbies and had bad ankle pain by the time he sought specialist orthopaedic advice from Mr Cornoiu.
82Indeed, he accepted in closing submission that the Court could conclude that his ankle started to become more than a niggle from 2016 and was quite bad by October 2018.[39]
[39] T 5, L 21-25 (14 December 2023).
83His explanation for not seeking legal advice at the time he first consulted Mr Cornoiu in October 2018 was that he was hopeful that with treatment he would have an improvement in symptoms. He said that initially the less invasive treatments such as cortisone injections and then an ankle arthroscopy did provide some alleviation of symptoms. He submitted that it was only in March 2021 when he returned to see Mr Cornoiu, and was told of significant arthritis that then required an ankle arthrodesis, that he knew he was in trouble. He said in his second affidavit that before then “I did not consider my injury was ‘serious’”.[40]
[40] AJCB 19.
84This issue starkly illustrates much of the tension in this proceeding, namely that if the plaintiff had an ongoing ankle problem that was bad by 2018, why did he not seek legal advice at an earlier point in time, where he was a man who, at least in a work context, was familiar with the concept of claiming damages for personal injury from as far back as 2004 or 2005? This tension is palpable where the passage of time has impacted the plaintiff’s own memory but also meant that the independent witness was deceased before the writ was issued.
85In his oral evidence, the plaintiff maintained that he was unaware what was meant by common law, or negligence, the need for a “serious injury” to bring a claim for the collision (despite the use of the term “serious injury” in his second affidavit in a form that suggested it was used in a legal and not a lay sense), or that there was a six-year limitation period, despite the previous common law claim for his back injury.
86Some of that evidence is hard to accept, but ultimately not much turns on that in an overall synthesis of all relevant matters.
87During his oral evidence, he accepted that he had the capacity to seek out personal injury lawyers and to instruct them when he chose to do so in 2021 and that there was nothing that stopped him from seeking legal advice at an earlier time. Therefore, in part, a relevant consideration is his failure to seek advice by October 2018, when the objective evidence is that he then had a bad ankle problem that he was aware had been caused by the collision.
88In other words, apart from accepting the inevitable need for an ankle arthrodesis in 2021, in the context of the symptoms, advice and treatment that he was having for his ankle, did he act reasonably in doing nothing in that period to seek legal advice? In my opinion, the answer to that question is ‘no’. He was a man not unfamiliar with the ability to claim compensation for injuries caused by another person, even if he did not fully appreciate the nuances of the system for bringing a claim because of a motor vehicle collision. He knew his ankle was related to the accident. He knew it was impacting his life. Viewed objectively, he should have acted sooner. His failure to act has contributed to the deterioration in the quality of the evidence available and the ability for the defendant to have a fair trial.
The medical evidence
89It is unnecessary to say much about the medical evidence. There is no real dispute about the injuries that the plaintiff suffered in the collision.
90Regarding the right ankle, the dispute was more around the timing of the onset of the bad symptoms. The defendant did not suggest that the ankle injury was not related to the collision. There is no need to delve into the medical evidence in detail where causation and incapacity are not in dispute, at least for the purposes of this application.
91The objective medical evidence revealed episodic attendance for what might be termed an ankle niggle, until the referral to Mr Cornoiu in October 2018. By that stage, the evidence is that the plaintiff had a bad ankle, consistent with the fact that Mr Corniou at the first attendance with the plaintiff put the prospect of an ankle arthrodesis very much on the treatment agenda.
92The medical evidence supports a conclusion that the initial treatment by Mr Cornoiu was trying to buy time before the plaintiff would succumb to major ankle surgery. There is no suggestion in Mr Cornoiu’s evidence of anything that detracts from the conclusion that the plaintiff had a bad ankle, with a need for major surgery once the inevitability of that could no longer be delayed. Mr Cornoiu’s evidence was that there was limited benefit from any of the cortisone injections or the arthroscopy and that the plaintiff had a bad right ankle throughout the period leading up to the ankle arthrodesis.
93The medical evidence, and ultimately the plaintiff’s own evidence, is that he had an ankle injury because of the collision that slowly deteriorated, more so between 2016 and October 2018, such that, in lay terms, he had a bad or even serious ankle problem from late 2018, with developing arthritis, an impact on his social and recreational activities and the inevitability of an ankle arthrodesis.
Contentions
94This is a proceeding where much of the evidence is not really in contest. For example, ultimately there is no contest that, because of the collision, the plaintiff suffered a right ankle injury, that deteriorated with time, and by October 2018 had impacted his social and recreational activities and had required specialist orthopaedic referral and the provision of advice that he would eventually require an ankle arthrodesis.
95The contest is more around where the dictates of justice lie in the synthesis of all relevant considerations about extending the period of limitation.
96I have already set out much of what is in dispute and my assessment of the relevant evidence. The matters set out in s23A are not exhaustive. At this juncture, it is convenient to discuss the matters provided for in s23A. But before doing so, because of the submissions and the evidence that was presented, I shall first deal with the issue of the deceased witness.
The deceased witness and ‘stopping the clock’
97As mentioned, Simpson died on 31 January 2022. Due to his death, the defendant submitted that he had suffered specific prejudice and that a fair trial was no longer available.
98Again, as mentioned, the plaintiff contended that the limitation clock was stopped when he issued the Originating Motion on 7 May 2021. The plaintiff submitted that the decision in Repco Corporation v Scardamaglia (“Repco”)[41] supported his contention that time was stopped when the Originating Motion was issued (presumably because he sought an extension of the limitation period in the Originating Motion).
[41] [1996] 1 VR 7 per Smith JA.
99In Repco, Smith JA said:
“The preponderance of authority in this state favours the interpretation that the delay referred to is the period of time from the accrual of the cause of action to the making of the application for an extension of time”.
(Footnote omitted).
100But, in Repco, the applicant had issued a writ and then a summons, with supporting material, seeking to extend time. That is in stark contrast to this application where the plaintiff had not negotiated the “serious injury” gateway and had no ability to commence a common law proceeding. In such a scenario, in my view, there was no clock that could be stopped by the issuing of the Originating Motion.
101That is not to say that the Originating Motion is irrelevant. It is part of the factual matrix and is evidence of an attempt by the plaintiff to advance things. In that sense, rather than “stopping the clock”, it could be said that by issuing the Originating Motion the plaintiff was then “on the clock”. Regardless, I agree with the description of the defendant that it was a bare bones approach.
102I do accept that, almost immediately after consulting solicitors on 30 April 2021, the plaintiff put the TAC (the defendant’s insurer) on notice that he intended to pursue a serious injury/common law claim, including by issuing an Originating Motion. But the proverbial clock continued to tick.
103The fact that the plaintiff put the TAC on notice from early May 2021, and flagged his intention to pursue a serious injury/common law claim, is a relevant consideration in the overall synthesis of all relevant matters.
104Pausing, I note that when he put the TAC on notice, the plaintiff did not put the defendant directly on notice. Not much turns on this, save that it was probably not known at that time by the actual defendant that he was facing litigation.
105However, because he had done nothing for many years, when the plaintiff first put the TAC on notice of his intention to pursue a common law/serious injury claim, he was not able to provide any relevant material directed to the merits of either the serious injury application or the common law claim. There was no affidavit that accompanied the Originating Motion, nor any explanation as to why he did not provide one. He did commence collating material to provide to the TAC for the eventual consideration of “serious injury”, but that took some time, and he did not initially try to determine if liability witnesses were available to give evidence.
106Regarding the death of Simpson, the plaintiff said that his death should not be determinative of the result in this application.[42] I accept that as a correct legal proposition, as I am required to synthesise all relevant considerations. But having said that, if the delay means the death of Simpson prevents a fair trial, that is obviously a powerful consideration in the synthesis of all relevant matters.
[42]T 13, L 24-27 (30 October 2023).
107On the topic of the death of Simpson, the plaintiff again submitted that time had stopped running because of the issue of the Originating Motion, which was a time when Simpson was alive.
108Next, he said that if time was not stopped then the delay, if it be a delay, between May 2021 and May 2022, cannot be seen by him as being in any way unreasonable or to in any way work against his application.
109First, the plaintiff submitted that the defendant is alive and has seemingly a reasonable recall of the collision and is available to give his version of events. I accept that as an accurate summary of the evidence. Second, he submitted that it was not clear whether Simpson, despite being nominated as an independent witness, could have given any evidence that would directly go to the issue of fault.[43] Third, while the plaintiff accepted that the defendant was denied the ability to call whatever evidence Simpson could have given, he submitted that by the same token the defendant had six months from when it was first on notice of the plaintiff’s serious injury/common law claim to take a statement from Simpson, and they did nothing in terms of contacting him until more than 12 months later.[44]
[43]T 20, L 26-31 (30 October 2023).
[44]T 23, L 1 (30 October 2023).
110In other words, the plaintiff attempted to sheet home the delay in contacting Simpson to the actions of the defendant. That is not a submission I accept on the facts of this application. It is the tail wagging the dog to suggest there is no evidence that enables a conclusion that Simpson could have assisted the defendant’s case. That is the very point, namely that the death of Simpson means that his evidence has gone to the grave with him and the defendant, in the defence of this proceeding, is unable to rely on whatever evidence Simpson could have given, for or against his case, for the purpose of a fair trial of all issues in dispute.
111The defendant submitted that time was not stopped by the issue of the Originating Motion and that the authorities make it clear that time stops when a valid serious injury application is made. Although, more importantly, according to the submissions of the defendant, to have to go and investigate a potential common law claim the moment he (or TAC) was put on notice of a potential serious injury/common law claim, would be an oppressive and onerous obligation in circumstances where the plaintiff had not provided anything more than just a bare bones attempt to put him on notice.[45]
[45]T26, L11-14 (30 October 2023).
112Therefore, on the facts of this proceeding, the defendant submitted that it made a material difference that Simpson is deceased, particularly as the plaintiff himself has a limited recall.[46] In such a scenario, an acceptably fair trial was said to be unavailable.
[46]T27, L1-7 (30 October 2023).
113I have already expressed my conclusion that the issuing of the Originating Motion in circumstances where the plaintiff had not made a valid “serious injury” application and had not commenced a common law proceeding, does not and cannot “stop the clock”. In a strict or formal sense, there was nothing to stop.
114On this point the plaintiff provided the Court with a copy of the ‘Transport Accident Act Common Law Protocols – 1 July 2016[47] (“the protocols”), which he then called in aid on the argument about when and how time was stopped. This is not the time or forum to dissect the purpose or the effect of the protocols, or whether either party has complied with the spirit of those protocols. They are not binding on the Court, but they are relevant for a sensible and agreed protocol between plaintiff lawyers and the TAC to try and limit the number of “serious injury” disputes that end up before the Court and are a mutual set of obligations once a valid “serious injury” application is provided by a claimant to the TAC.
[47] AJCB 356.
115In this proceeding, it took the plaintiff some time to make a “serious injury” application in accordance with the protocols. Regardless, in my opinion, the protocols in force when the plaintiff made his “serious injury” application do not and cannot automatically stop time, although in this proceeding the TAC accepted that the application did stop time when it was lodged with the TAC on 25 May 2022.[48]
[48]Exhibit D1, paragraph [6].
116On 6 May 2021, the plaintiff put the TAC on notice of his intention to pursue a serious injury/common law claim, which is a relevant consideration, in the sense that he was by then taking steps to advance the serious injury/common law claim. I accept that it would take time to compile medical and other relevant pieces of evidence before a serious injury application could be made that complied with the protocols. Equally, I do not accept that in the circumstances of a “bare bones” Originating Motion with no other accompanying evidence, such as an affidavit from the plaintiff, that the TAC (or the defendant) should immediately go looking for clues that might lead them to a trail of evidence relevant to a serious injury/common law claim that might never have merit in it.
117In my view, it is relevant that by the time the plaintiff “lined up his ducks” and gave the TAC sufficient material to respond to his proposed serious injury/common law claim, Simpson was deceased.
118In short, the plaintiff is well out of time. Seemingly, the passage of time has contributed to the demise of Simpson, and that is a relevant consideration.
119In circumstances where the parties have a different version of events and, as the defendant submitted, the plaintiff’s own version is vague, the death of the independent witness is a fact that tends to a conclusion that there is specific prejudice to the defendant.
120But, finally on this topic, even if time was stopped by either the issuing of the Originating Motion, or by the provision of a “serious injury” application that complied with the protocols, by then the sands of time had caused the odds of Simpson being located, alive and able to recall any useful information about the collision to be much lower than if the plaintiff had commenced a proceeding in time, or done something sooner. This highlights the very purpose of limitation periods, namely, to preserve the quality of justice. In that regard, a limitation period is not some easily moveable, arbitrary line in the sand.[49]
[49] Griffiths v Nillumbik Shire Council [2022] VSCA 212 at [66].
Section 23A and a synthesis of relevant factors
121I have already set out much of the relevant evidence and synthesised that evidence for the purpose of the result of this application. So, what follows is perhaps little more than a bullet point summary by reference to the matters set out in s23A in the context of what I have already said about this application.
(a) The length of and reasons for the delay on behalf of the plaintiff
122There is no doubt that the delay is inordinate. The limitation period expired on 6 November 2004.
123The plaintiff’s explanation is that, until 2016, he was getting on with life with little or no symptoms in his right ankle. It was only when he developed significant symptoms in his right ankle and his ability to engage in day-to-day activity was impacted that he decided to seek medical advice, and it was only when the less invasive treatment failed, and the arthrodesis was no longer able to be put off, that he realised he needed to seek legal advice.
124But, for the reasons already expressed, I conclude that the plaintiff could have, and should have, sought legal advice at an earlier point in time, especially as he had previously brought a common law claim for a work injury and was always aware that his ankle was related to the collision. At the least, he should have sought legal advice in October 2018 when the fact of his bad ankle had very much revealed itself.
(b) The extent to which, having regard to the delay, there is or likely to be prejudice to the defendant
125Clearly, this is a situation where the defendant raised specific prejudice.
126For the reasons already expressed, the death of Simpson means that there is specific prejudice.
127In my opinion, there is force in the defendant’s submission that he is no longer able to have an acceptably fair trial.
128True it is that the defendant does appear to have a reasonable memory of the collision, but in circumstances where there is a clear difference in recollection between the plaintiff and the defendant, the inability for the defendant to be able to call Simpson brings sharply into focus the issue of specific prejudice.
129The contest at trial, to a large extent, will be between the plaintiff’s version and the defendant’s version. The plaintiff’s own recollection of events is vague. The loss of the ability to call the independent witness does compromise the ability to conduct a fair trial.
130The death of Simpson is not determinative of this application. The contest was always between competing versions of events and that is still a contest that can be had. Indeed, the plaintiff’s vagueness might mean that the death of Simpson works against him and not the defendant.
131But the death of Simpson is not the only example of specific prejudice. Bolitho now has no independent recollection of the collision. The Police Incident Report has at least one error in it and Bolitho cannot be tested as to how the report was created or the sources of information used to create it. Further, Timms is also now seemingly unable to provide any useful evidence.
132There is also general prejudice to the defendant due to the inordinate delay.
133The state of the evidence is such that, in my opinion, an acceptably fair trial is no longer possible.
(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
134This provision does not appear to be particularly relevant.
(d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
135This provision does not appear to be relevant.
(e) The extent to which the plaintiff acted promptly and reasonably once he knew of 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
136As mentioned, the plaintiff’s evidence is that he injured his ankle in the collision and was always aware of that fact. His explanation for not doing something sooner was that the right ankle injury was not much of an impediment, and it was only when the injury became bad that he did something about it.
137An analysis of this section is otherwise similar to the analysis regarding the length and reasons for delay on behalf of the plaintiff. It is not a situation where the plaintiff “sat on his hands” when he became aware of the limitation period (if he became aware of it) when he consulted solicitors in April 2021, nor the need to take steps to advance the proceeding. But I do consider that the plaintiff did not act promptly or reasonably in October 2018, when the specialist advice was that he would succumb to an ankle fusion, and he was then suffering symptoms that were impacting his day-to-day life.
(f) The steps, if any, taken by the plaintiff to obtain medical, legal, or other expert advice, and the nature of such advice he may have received
138This section also collapses into the discussion earlier in these reasons. The plaintiff has provided medical material. Equally, as already discussed, that was not done until after he issued the Originating Motion. But this is not a scenario whereby he ignored relevant medical advice or delayed acting sooner, contrary to medical or legal advice.
General considerations and a resolution of the application
139As mentioned, the provisions of s23A of the LAA are not exhaustive. The decision to extend the period of limitation is to be made based on all the relevant circumstances as presented.
140The injury was apparent to the plaintiff at the time of the collision. True it is that it settled down and thereafter was only a niggle until a time in 2016, but thereafter it progressed rapidly to a “bad ankle”, such that by October 2018, he was facing the inevitability of a right ankle arthrodesis.
141Next, true it is that the actual circumstances of the collision are not particularly complicated but, nevertheless, where the plaintiff has a vague recollection of the collision and there is a real contest as to the factual matrix, the loss of Simpson does cause specific prejudice to the defendant.
142There is also specific prejudice due to the passage of time and a compromise in the quality of the other lay evidence, particularly the evidence from Bolitho and, to a lesser extent, Timms. The evidence of Bolitho and his lack of recall creates a further problem in the setting where some of the information in the Police Incident Report is wrong.
143The result of not allowing the application to extend time is that the defendant is able to rely on a limitation defence and the plaintiff is denied the ability to proceed with a common law claim for damages. That is a relevant matter to consider.
144But limitation periods are obviously there for a reason and it is the plaintiff who has the onus to satisfy the Court that the discretion should be exercised in his favour to extend the relevant period of limitation.
145I take note of the fact that the plaintiff made a serious injury application to the TAC pursuant to the relevant protocols and that after considering that application he was granted the consent by the TAC to commence a common law proceeding. The consequences of disallowing an extension of the limitation period will be serious and adverse to the plaintiff, as he will be unable to pursue his common law claim.
146However, all relevant considerations are not to be weighed against each other, but rather must be synthesised to arrive at a conclusion.
147In synthesising the competing considerations and circumstances of this application, it is obvious that not all point to the same conclusion. There are valid points to be made both for and against the decision to extend the limitation period.
148Having synthesised all the competing considerations and circumstances, I conclude that the general and specific prejudice is such that a fair trial is unavailable to the defendant. I further conclude that the circumstances in favour of granting an extension of time are outweighed by those against. I conclude that it is not just and reasonable to extend the period of limitation.
149Accordingly, for the reasons given, the plaintiff’s application is refused.
150I shall hear from the parties as to the appropriate orders and costs.
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