Briggs v Transport Accident Commission
[2013] VCC 1056
•28 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-05021
| MELODY BRIGGS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2013 | |
DATE OF JUDGMENT: | 28 August 2013 | |
CASE MAY BE CITED AS: | Briggs v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1056 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – injury to the neck – causation – intervening transport accident – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1985, s93(4)(d)
Judgment: Leave granted for the plaintiff to bring a proceeding to recover damages at common law
Subject: LIMITATION OF ACTIONS
Catchwords: Transport accident in 1994 – Originating Motion filed 22 October 2009 – prejudice alleged by the defendant – relevant considerations in determining an application pursuant to s23A
Legislation Cited: Limitation of Actions Act 1958, s23A(1), s23A(2), s23A(3)
Cases Cited: Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Millard v State of Victoria [2006] VSCA 29; Edwards v Kennedy [2009] VSC 74; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Clark v McGuinness [2005] VSCA 108; Dahl v Grice [1981] VR 513
Judgment: The time within which the plaintiff may bring a proceeding to recover damages at common law is extended to 13 September 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr C Winneke | Slater & Gordon |
| For the Defendant | Mr G Lewis SC with Mr Oldfield |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 22 October 2009 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 3 February 1994.
2 Mr C Harrison, Senior Counsel, appeared with Mr C Winneke of Counsel for the plaintiff and Mr G Lewis, Senior Counsel, appeared with Mr Oldfield of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17) – “serious long term impairment or loss of a body function”.
5 The injury suffered by the plaintiff for which leave is sought is an injury to the neck.
6 In addition, the plaintiff seeks to have time extended within which to bring a proceeding pursuant to s23A of the Limitation of Actions Act 1958 (“the Limitation Act”).
7 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 4-47f and 72-117: Exhibit A;
· Internet page relating to the plaintiff: Exhibit 1;
· The defendant tendered its Court Book (“DCB”), pages 1-10; 64; 81-99; 104-113; 116; 147 to 202: Exhibit 2.
The Issues
8 Mr Lewis informed me that the issues raised by the defendant are:
· firstly, that the delay between the accrual of a cause of action and the date on which the Originating Motion was filed is so inordinate as to amount to prejudice
· secondly, an identification of the consequences which the plaintiff contends resulted from the injury to her neck
· thirdly, whether the consequences contended for by the plaintiff meet the statutory test.
9 I propose to determine whether the plaintiff has suffered a “serious injury” before turning to the question of whether the limitation period should be extended.
The Plaintiff’s background
10 The plaintiff was born in February 1975. She is now 38 years of age. She is a single woman. She does not have any children.
11 The plaintiff completed Year 12 at Canterbury Girls High School. I assume she was 18 years of age when she completed her schooling. I also assume that she completed her schooling in 1993.
12 Upon completing her schooling, the plaintiff enrolled in a fashion course at the Box Hill TAFE. It is unclear to me whether the plaintiff actually commenced a course, and if she did, whether she completed it.
The transport accident
13 On 3 February 1994, the plaintiff was the driver of a car which was stationary on the Punt Road overpass over the south-eastern arterial freeway. While she was in that position, her car was struck from behind by another car. In her first affidavit sworn 18 August 2011, she described the impact as a “high impact collision”. The other driver did not stop. He left the scene without exchanging names and addresses with the plaintiff.
14 In her third affidavit sworn 13 May 2013, the plaintiff said that she was driving a 1966 white Ford car which was registered in her male partner’s name. She described the collision as a “high-speed” collision. Her car was towed away. It was written off due to extent of the damage it suffered.
15 Relevantly, she said the following about the impact:
“The force of the collision caused my neck to be flung backwards and forwards. The car I was driving did not have any headrests, which I believe may have reduced the forces applied to my neck.”[1]
[1]PCB 8
16 The plaintiff called her male partner from a telephone box near to the point where the transport accident occurred. She walked to the Olympic Park Sports Medicine Centre to obtain medical attention. However, she did not say whether she obtained any medical attention.[2]
[2]PCB 8
17 The plaintiff completed a Claim for Compensation form on 16 March 1994 which she lodged with the defendant. One of the questions on the form asked when the plaintiff first obtained treatment. She wrote that she first obtained treatment on 4 February 1994. The form did not ask the plaintiff to identify from whom she obtained that treatment, nor did she provide it.
18 The plaintiff also wrote on the form that the transport accident occurred on 3 February 1994, and that she was first absent from her employment on 3 February 1994 and resumed work on 4 February 1994.
19 The plaintiff saw Dr Sanci, general practitioner, on 4 February 1994. She provided the plaintiff with a medical certificate dated 25 February 1994. Dr Sanci recorded the following on the medical certificate:
“1TENDER SOFT TISSUES INCLUDING MUSCLES OF THE NECK - SPRAIN INJURY.
2TENDERNESS & MUSCLE STRAIN OF LOWER BACK ESP AROUND L5/S1.
3TENDER LOWER COSTOCONCHONDRAL JUNCTIONS ANTERIORLY.
4DECREASED RANGE OF MOVEMENT OF LOWER BACK SECONDARY TO 2.”
20 The Claim Form has been completed in different handwriting. Part of the handwriting is probably that of the plaintiff, but another part, which is a description of the plaintiff’s injuries, is in a different handwriting. In any event, the part giving a description of the plaintiff’s injuries appears to have been taken from the medical certificate provided by Dr Sanci because it refers to the same injuries and uses very much the same language used by Dr Sanci.
21 It is evident from the foregoing that if the plaintiff did attend the Olympic Park Sports Medicine Centre on 3 February 1994, then there is no evidence from the treating medical practitioner at that Centre verifying her attendance. What is clear is that the plaintiff did attend Dr Sanci on 4 February 1994. The address endorsed on the certificate provided by Dr Sanci is 226 Flinders Lane, Melbourne.
Serious injury
22 The plaintiff contends that from the time of the occurrence of the transport accident she has experienced neck pain which worsened in 2008. The symptoms of the worsening included increased neck pain and paraesthesia in both hands. She saw Dr Arsenakis, general practitioner, on 27 August 2008 complaining of those symptoms.
23 Dr Arsenakis provided a report dated 25 June 2009[3] and her clinical notes were reproduced in the Defendant’s Court Book.[4] From what I can glean from the plaintiff’s affidavits, Dr Arsenakis’ report and clinical notes, the symptoms of increasing neck pain and paraesthesia in both of the plaintiff’s hands led the plaintiff to seek a surgical opinion at The Alfred hospital. I assume that she did so on the basis of being a public patient.
[3]PCB 20
[4]DCB 8-62
24 The plaintiff saw a neurosurgeon at The Alfred hospital. She was no doubt examined by the neurosurgeon. She was referred to have an MRI scan by Professor Rosenfeld, neurosurgeon. The MRI scan was undertaken on 17 December 2008. It demonstrated disc abnormalities at C5-6 and C6-7. The impression of the radiologist of the MRI scan was:
“ Multilevel degenerative disc disease most severe at to (sic) C6-7 with a focal left paracentral disc protrusion and diffuse broad-based disc bulge resulting in moderate canal stenosis and bilateral foraminal stenosis and C7 neural impingement most marked on the left.”[5]
[5]PCB 46-47
25 Dr Arsenakis referred the plaintiff to The Alfred hospital. In her report, she refers to the plaintiff being seen at the Neurosurgical Unit at that hospital on 6 November 2008.
26 The plaintiff underwent surgery on 8 May 2009 performed by Mr Chan, neurosurgeon, at The Alfred hospital. Mr Chan’s operation notes disclose that he performed a discectomy at C5-6 and at C6-7, following which he inserted a plate incorporating the C5, 6 and 7 vertebrae which were fused by that means.[6] The fusion was redone by Mr Chan on 28 May 2012. According to his operation note, it would appear that there was a loosening of the plate and accompanying screws. On this occasion, the fusion was undertaken by using bone grafting and a plate.
[6]PCB 47a-47c
27 In her second affidavit sworn 13 May 2013, the plaintiff described both episodes of surgery,[7] and in her third affidavit sworn 6 August 2013, she described the pain and suffering consequences of the injury to her neck. I do not propose to set out those consequences because of an exchange which occurred between myself and Mr Lewis. It seemed to me, on my reading of the plaintiff’s affidavits, the operation notes, the medical reports of Dr Arsenakis, Mr Doig, orthopaedic surgeon,[8] and Mr Cunningham, orthopaedic surgeon,[9] that – if I put this issue of causation to one side – the plaintiff had suffered a serious long-term impairment of the function of her neck. Mr Lewis candidly conceded that if the question of causation was ignored, then the pain and suffering consequences did meet the statutory test.
[7]PCB 10
[8]PCB 23-28b
[9]PCB 41-45
Causation
28 The first part of the causation issue raised by the defendant is based upon a history recorded by Ms Weekes, Chinese and Japanese therapist, that the plaintiff told her:
“… she had had 2 car accidents in one week at the age of 19 years and her problems with her neck and back had started at this time.”[10]
[10]PCB 19
29 Mr Lewis submitted that the history pointed to the plaintiff suffering an injury to her neck in two transport accidents, and that there was no evidence from the plaintiff to demonstrate that only the transport accident of 3 February 1994 is implicated in the causation of the neck injury.
30 In the course of the hearing, Mr Harrison tendered a second Claim for Compensation made by the plaintiff, which he submitted demonstrated very clearly that there was a second transport accident, but that the injury which the plaintiff suffered in that second transport accident was to her lower back only.
31 That Claim for Compensation is dated 16 March 1997. It refers to a transport accident which occurred on 31 January 1994 at the corner of Northgate Avenue and Whitehorse Road, Balwyn. In answer to a question requiring a description of the injuries sustained, the plaintiff wrote on the Claim for Compensation:
“ Upper body was twisted approximately 90° – severe acute lower back pain was caused immediately after, radiating down legs were approximately 5-8 hours – then less pain, less constant, but still permanent.”[11]
[11]PCB 74a-74b
32 It appears that the plaintiff suffered an injury to her lower back on 31 January 1994, and was presumably sufficiently concerned about it to then make a claim for compensation in 1997. The Claim for Compensation makes no reference to the plaintiff having suffered an injury to her neck.
33 The conclusion I have reached is that the plaintiff was involved in two transport accidents in close proximity to one another in 1994, but did not suffer an injury to her neck in both – only in the transport accident which occurred on 3 February 1994.
34 I should add that, when Mr Harrison tendered the second Claim for Compensation, it was tendered without objection by Mr Lewis. I understood that Mr Lewis did not suggest that it was not the relevant Claim for Compensation for the other transport accident in which the plaintiff was involved in early 1994.
35 The remaining issue of causation involved another transport accident which occurred on 8 February 2009. During cross-examination, the plaintiff described that transport accident as follows:
Q:“Just while on that topic, apart from those two other accident in 1994, have there been any other relevant car accidents?---
A:I did have a non-serious collision on 8 February 2009 when someone in front of me slammed on the brakes at an amber light at the last minute and I hit them in the back. I was going about 40 km an hour. I already had a neck injury by that stage and it did exacerbate the pain and I reported that to my doctor.”[12]
[12]Transcript 16
36 The plaintiff was referred to the clinical notes of Dr Arsenakis and entries relevant to the transport accident of 8 February 2009. As far as I can decipher the handwritten injury, it appears to reveal the following:
“9/2/09 Yesterday travelling about 40kmh → hit stationary vehicle that had stopped suddenly
- sharp pain in …
- o/e whiplash injury tender R side of neck
- painful … l @, flexion, extension O.K.
Rotation … R uncomfortable
Rotation … L O.K sensation in fingers …
… R side/hand - not reproducible today
Advised - … If worsening pain or paraesthesia of hands … .”[13]
[13]DCB 9. The entry is very difficult to read in parts. I have reproduced what I have been able to decipher, and what I have not been able to decipher I have left out altogether
37 However, the plaintiff also attended Dr Arsenakis on 27 August 2008. The entry in her clinical notes for that occasion, again as far as I can decipher it, reads:
“…
2 Neck pain R side …
Some parasthesia (sic) … hands
had chiropractic … 12/12 - no help … .”[14]
[14]DCB 8-9
38 Then, on 18 September 2008, the plaintiff attended Dr Arsenakis. The entry to that occasion, again as far as I can decipher it, reads:
“… CT
- impingement + entrapment of …
? Some shoulder symptoms/…
o/e Upper limbs –parasthesia (sic) ++ present
Tone Power: … Flexion ↓ Extension - ↓ ~ 4/5 R … .” [15]
[15]DCB 9
39 What is clear is that the plaintiff saw Dr Arsenakis on 27 August and 18 September 2008 with a neck condition which appears to me to have been serious, in that the plaintiff was suffering from right-sided neck pain and paresthesia in both upper limbs. By 18 September 2008, her symptoms appeared to have worsened, because the downward pointing arrows next to the reference to flexion and extension demonstrates a loss of power in the plaintiff’s neck on those movements relating to C4-5 to the right side of the plaintiff’s neck.
40 The entry of 18 September 2008 contains a reference to a referral by Dr Arsenakis to the Neurosurgical Unit at The Alfred hospital. In comparison, the entry of 9 February 2009 refers to a whiplash injury but does not, as far as I can interpret the notes, refer to any new pathology or increased symptoms when a comparison is made with what is recorded in the entry of 18 September 2008. It does record that Dr Arsenakis gave advice the plaintiff to do something if she experienced worsening pain and paresthesia in her hands. It is the same advice which she gave the plaintiff on 18 September 2008.
41 The plaintiff said that she had forgotten about the transport accident of 8 February 2009. Her memory was jogged when she was reminded of it by her present solicitor, and I assume when the notes were discovered through the production of the records of Dr Arsenakis to the Court pursuant to Order 42A. The plaintiff was cross-examined on the subject. She said that, having been made aware of the entry in the clinical notes, she recalled that the transport accident of 8 February 2009 exacerbated the existing pain which she was experiencing.[16]
[16]Transcript 17-18
42 The entry of 18 February 2009 refers to a hospital, a discussion of neck surgery and a letter written to the defendant regarding the plaintiff’s neck pain. The next entry dated 12 March 2009 appears to refer to the type of surgery that would be undertaken, because it refers not only to surgery, but metal plates to be used in the surgery, and post-operative care and rehabilitation, among other things, which I am unable to decipher.
43 The inference which I draw is that by 18 September 2008, the plaintiff had an established serious neck condition which warranted referral for a CT scan and referral of the plaintiff to the Neurosurgical Unit at The Alfred hospital. It is probable that the plaintiff had already attended the Neurosurgical Unit, because it was only some nine days after the transport accident of 9 February 2009 that there was a mention of surgery and a hospital, and then, on 12 March 2009, a discussion of the nature of the surgery. It is improbable that what the notes disclose on 18 February 2009 and 12 March 2009 occurred as a response to the transport accident of 9 February 2009, but rather as a response to a longstanding neck condition suffered by the plaintiff which had worsened.
44 I am fortified in reaching that conclusion because the plaintiff gave evidence that she had 12 months of chiropractic treatment in the hope that it would avail her of reasonable relief from her neck pain. It is the very history which she gave to Dr Arsenakis when she attended her on 27 August 2008. The plaintiff said that by the time the 12 months of chiropractic treatment came to its conclusion, that she then decided to seek further medical opinion.
45 I am not persuaded that the transport accident of 9 February 2009 is of any significance. I think that, when it is considered in the context of all of the evidence, it is an incident which occurred at a time when the plaintiff had clearly suffered an established neck injury requiring 12 months of chiropractic treatment and consultations with Dr Arsenakis which appear to have been inevitably heading towards a debate regarding the place of surgery in the treatment of the plaintiff, and the history shows that the plaintiff underwent this surgery. I accept the plaintiff’s evidence that what she recalls is that it was an exacerbation, which I take to mean that she suffered some temporary increase in the symptoms of neck pain in the background of an established neck injury.
Steps taken after the surgery
46 The major thrust of the submissions made by Mr Lewis with respect to delay was based upon the absence of evidence produced by the plaintiff regarding the medical treatment she obtained from 3 February 1994, and the work she has undertaken since that time. I will return to this subject after I have referred to what I consider to be the relevant legal principles which apply to this particular application to extend time.
47 What is abundantly clear is that following the occasions when the plaintiff saw Dr Arsenakis on 27 August 2008 and 12 March 2009, the plaintiff went on to have surgery on 8 May 2009. It would appear that the surgery was unsuccessful, because the plaintiff required what would appear to be an almost complete revision of the surgery on 28 May 2012. The inference which I draw is that, following the first episode of surgery, her neck injury did not stabilise, and it is only since the second episode of surgery that stabilisation has occurred.
48 It is trite to say that a determination of whether the impairment consequences of an injury are serious or not will depend, among other things, on whether the injury has stabilised. I think it is unlikely that the plaintiff could have obtained a serious injury until now, which is only some 14 or so months following the second episode of surgery. I infer that, when the plaintiff's solicitors became aware that the plaintiff was facing a probable defence based upon the Limitation Act, they promptly filed the Originating Motion on 22 October 2009, which was only some six months after the first episode of surgery.
49 Therefore, the prejudice which the defendant says it will suffer if time is extended is confined to the effluxion of time from 3 February 1994 to the time when the Originating Motion was filed, which is about 14 years. Mr Lewis responded to a question which I asked him by saying that the defendant would not argue against the proposition that the time stopped running against the plaintiff when the Originating Motion was filed.
50 Mr Harrison submitted that account must be taken of the fact that, if the plaintiff applied for serious injury within the limitation period, then she would not have succeeded, because plainly the impairment consequences would not have satisfied the statutory test. It was only after the first episode of surgery, and certainly after the second, that the plaintiff’s impairment consequences were certainly serious. However, the result for the plaintiff is partly as a consequence of the nature of the statutory regime under the Act which means that if an injury has been suffered and does not become serious until after the expiration of the limitation period, then the plaintiff suffers the consequence of having to meet a defence under the Limitation Act.
The relevant legal principles
51 Section 23A(2) of the Limitations Act provides that the Court can extend the period within which an action can be brought for such period as the Court determines, if the Court decides that it is just and reasonable to do so.
52 Subsection (3) is in the following terms:
“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.”
53 Mr Harrison and Mr Lewis both provided me with a very helpful outline of argument in which they referred to a number of relevant authorities. It seems to me that the principles which apply to this application can be summarised as follows:
· The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff.[17]
[17]Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Richards v The State of Victoria & Ors [2001] VSC 52 at paragraph 11, and Delai v Western District Health Service [2009] VSC 151 at paragraph 21
· If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice.[18]
[18]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South Regional Health Authority (supra) at 547
· The competing considerations referred to in ss(3) are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that is just and reasonable to extend the limitation period.[19]
[19]Millard v State of Victoria [2006] VSCA 29 at paragraph 42; Edwards v Kennedy [2009] VSC 74 at paragraph 24; Bell (supra) at 125-126; Tsiadis v Patterson (2001) 4 VR 114 at 123, and Delai (supra) at paragraphs 21-22
· The delay referred to in ss(3) is the delay between the accrual of the cause of action and the making of the application for an extension of time.[20]
[20]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 11 and Delai (supra) at paragraph 22
· The plaintiff cannot avoid any period of delay resulting from the conduct of his legal representatives being considered as delay for which he is liable.
· If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, the prejudice of which account can be taken of is prejudice which has come about by reason of a lapse of time involved in that period of delay[21] which can be established by the defendants, and the extent to which there is likely to be prejudice arising from mere delay in itself, when it is inordinate, may be taken as evidence of prejudice.[22]
· The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of, the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant.[23]
[21]Lord v Australian Safeway Stores Pty Ltd [1996] 1 V 614 at 622
[22]Tsiadis v Patterson (supra) at 123-124; Delai (supra) at paragraph 23, and Brisbane South Regional Health Authority (supra) at 551
[23]Brisbane South Regional Health Authority (supra) at 554-555
54 Mr Lewis emphasised that the effluxion of time is significant, and in that connection, he relied upon the observations of McHugh J in Brisbane South Regional Health Authority. The particular passage is an oft quoted one in applications for extension of time:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[24]
[24]at 551
55 There is no doubt that the observations made by McHugh J are relevant to every application for the extension of time where the time that has elapsed between the accrual of the cause of action and the application for extension of time is potentially inordinate. However, in Tsiadis v Patterson,[25] Buchanan JA made some relevant observations distinguishing the legislation upon which McHugh J based his general observations in order to make it clear what approach must be taken when determining an application for extension of time pursuant to s23A:
“The legislation considered by the High Court provided that where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until after the commencement of the year last preceding the expiration of the limitation period and there was evidence to establish the right of action, a court ‘may order that the period of limitation for the action be extended.’ The statute prescribed no matters the court was required to consider in determining whether to extend the period of limitation. Section 23A of the Act is quite different. Section 23A does not belong to that class of legislation providing for extensions to limitation periods that depend upon the discovery of new facts and, more importantly, requires the court to have regard to all the circumstances of the case, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant. The form of the provision in my view does not permit the conclusion that proof of prejudice considered alone must lead to the refusal of an application. Prejudice to the potential defendant is to be considered together with all the circumstances of the case, although in a particular case it may be very significant if it is so severe as to preclude a fair trial of the applicant's claim.”[26]
[25]supra
[26]at 122-123
56 The distinction referred to by Buchanan JA in Tsiadis v Patterson[27] has been the subject of consideration on a least two subsequent occasions. In Clark v McGuinness,[28] Warren CJ considered and approved of the distinction referred to by Buchanan JA, but also approved of the observations of McHugh J:
“Given the statement of principle by Buchanan J.A., with whom the other members of the court agreed, the judge at first instance was correct to follow Tsiadis. In summary, the principles espoused in Tsiadis make it clear that the court must have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice. In other words, potential prejudice is also a consideration the court should take into account. However, it is but one of the factors the court must take into account when determining a s.23A application. Indeed, the overriding question a court must have regard to in all circumstances where an application of this kind is made is whether it is ‘just and reasonable’ to extend the period within which the applicant may bring proceedings: Bell v SPC Ltd.
Notwithstanding the differences in the Queensland legislation considered in Brisbane South and the Victorian legislation in Tsiadis, the judicial statements on prejudice in both cases are in full agreement. It is clear that prejudice must be balanced against the ‘incommensurable’ considerations which the court must take into account. As well, the extent of both actual and presumed prejudice to the potential defendant when considering whether to permit and extend the limitation period influences the weighting of factors which can in turn impact on whether it is just and reasonable to grant the extension.”
[27]supra
[28][2005] VSCA 108
57 What is clear is that after all of the evidence has been considered regarding actual prejudice and presumed prejudice, it is for the Court to weigh up actual prejudice and presumed prejudice amongst all of the other relevant factors in determining whether it is just and reasonable to grant the extension of time.
Prejudice
58 I think the prejudice needs to be seen through the prism of the cause of action to be pleaded by the plaintiff and the range of defences and issues which the defendant might plead and rely upon. The defences and issues are most likely to be directed to:
· Liability;
· pain and suffering damages; and
· loss of earning capacity damages.
59 It is difficult to see how the defendant could deny liability given that the car driven by the plaintiff was hit from behind when the plaintiff’s car was stationary. Mr Lewis did not address me on whether liability would be in issue, and so I infer that it is unlikely to be a serious issue.
60 It is difficult to see how the defendant will be unable to meet the case put by the plaintiff for pain and suffering damages. Mr Lewis spent some time cross-examining the plaintiff regarding the treatment she has obtained since the transport accident to demonstrate that the plaintiff’s recollection of her medical treatment is relatively poor. He also spent some time cross-examining the plaintiff about the work that she has undertaken since the transport accident to likewise demonstrate that her recollection of that is also relatively poor.
61 However, having read the reports of treating practitioners in the plaintiff’s Court Book[29] and the clinical notes in the defendant’s Court Book,[30] it appears to me that a picture emerges of the plaintiff’s transport accident-related medical history and her non-transport accident-related medical history. For example, the clinical notes which the plaintiff believes are from a medical clinic in Elgin Street, Carlton[31] refer to various medical conditions for which the plaintiff obtained treatment; the reports of Dr Owen, psychiatrist, refer to the plaintiff being raised in a dysfunctional family setting and having, at times, resorted to the use of alcohol, necessitating treatment for a psychiatric disorder and for her consumption of alcohol.[32]
[29]PCB 14-22, and the radiology at 45a-45e
[30]DCB 1-97
[31]DCB 1-7
[32]DCB 81-82
62 In addition to the foregoing, there are reports of Mr Tuccio, Chinese medicine practitioner, referring to occasions when the plaintiff saw him between 7 January 2004 and 21 April 2007;[33] Dr Harman, chiropractor, referring to occasions when the plaintiff saw her from to April 2007 to 24 June 2008;[34] Ms Weekes, Chinese and Japanese therapist, referring to occasions when the plaintiff saw her from 25 May 1999, but not then referring to when she ceased treating the plaintiff,[35] and Mr Thomas, natural therapist, referring to occasions when the plaintiff saw him from 22 June 1999 and the treatment provided by him on six occasions in June-July of that year.[36]
[33]PCB 14-16
[34]PCB 17-18
[35]PCB 19. Her clinical notes are reproduced at DCB 63-80, commencing at a consultation on 25 May 1999 and ceasing on 4 May 2012
[36]PCB 21
63 Furthermore, there are other medical records comprising the plaintiff’s Medicare claims history from 1994;[37] the clinical notes of the Town Medical Centre from 5 June 2001 to 16 October 2003; miscellaneous documents relevant to the plaintiff’s treatment for alcohol abuse,[38] and clinical notes of the St Kilda Road Medical Centre from 2 May 2003 to 23 January 2006.[39] There are letters from Dr Gowers, chiropractor, dated 8 August 2013[40] and Dr Huang Chinese, medicine practitioner,[41] disclosing that they treated the plaintiff, but no longer have any records.
[37]PCB 81-94
[38]PCB 103-111
[39]PCB 112-117
[40]PCB 75
[41]PCB 77
64 The clinical notes of Dr Arsenakis[42] commence at a consultation on 19 June 2008 and cease on 1 March 2013. They appear to be complete, tolerably easy to decipher and track the more significant complaints of neck pain made by the plaintiff leading to the two episodes of surgery and thereafter.
[42]DCB 8-62
65 Whilst Mr Lewis, in cross-examination, did demonstrate that the plaintiff has a loss of memory, or a least an imperfect memory of the persons who treated her at various times between 1994 and 2008, and the nature of the treatment she was provided, what is clear is that the plaintiff made a decision not to seek traditional medical treatment because she said that once she understood that the general practitioner who treated her was likely to only prescribe her painkilling medication, she was advised to seek other treatment to improve her mobility from a physiotherapist, chiropractor, acupuncturist or osteopath.[43]
[43]Transcript 49
66 The plaintiff added that the reason why she changed the direction of her medical treatment was that, after seeing a chiropractor for 12 months in 2008, she appreciated that her condition was worsening, with numbness in the fingertips of her hands, an electric shock sensation in her spine and persistent intense pain, and she considered that the time had come to seek conventional medical treatment. The plaintiff described the progress of her neck injury from 1994 as degenerating slowly over the years, leading to her resort to chiropractic treatment in 2008, then to more conventional medical treatment.[44]
[44]Transcript 50
67 The plaintiff was examined on two occasions by Mr Doig, orthopaedic surgeon. He did not refer to the dates on which he examined the plaintiff, but he provided two reports following his examinations dated 1 February 2011[45] and 12 August 2013.[46] The plaintiff was also examined by Mr Cunningham, orthopaedic surgeon, on 19 July 2013. Both Mr Doig and Mr Cunningham were given an adequate history of the transport accident and a summary of the plaintiff’s complaints of pain and disablement, and the type of treatment she pursued until 2008.
[45]PCB 23-25
[46]PCB 28a-28b
68 Mr Doig had little doubt that the plaintiff’s neck injury was consistent with the transport accident which he described to him. Mr Cunningham appears to be of the same opinion; however, he expressed his opinion in two different ways. Firstly, he described the causal connection as possible.[47] Then he described the degeneration which resulted in the plaintiff’s neck symptoms as having begun with the hyperextension injury to her neck which occurred at the time of the transport accident,[48] and at the end of his report, he repeated that he thought the causal connection was possible.
[47]PCB 43
[48]PCB 43
69 Mr Harrison referred me to Dahl v Grice,[49] which he submitted was authority for the proposition that proof by expert evidence is not required by the plaintiff to establish a causal connection between the act and the injury to the requisite degree of probability, because that is for the tribunal to decide as an ultimate issue, taking into account the evidence of experts as to the existence of a link between a medical condition and an accident. He then submitted that because Mr Cunningham used the word “possible”, it does not mean that I cannot find that his opinion is not consonant with that of Mr Doig, and that ultimately it is a matter for me to determine on the whole of the evidence.
[49][1981] VR 513
70 Although I have dealt with the question of causation, it seems to me that there is strength in the opinions of Mr Doig and Mr Cunningham that it is probable that the plaintiff’s neck injury for which she has had surgery was caused by the transport accident.
71 I will now turn to Mr Lewis’ submissions that not much is known of the plaintiff’s working history because the plaintiff has a loss of memory, or a least an imperfect memory of what work she has done over the years since 1994 and to whom she did that work. However, having read the transcript of the plaintiff’s evidence, it appears to me that the plaintiff engaged in courses of study and worked in a number of occupations including in fashion design and on her own account. The impression I have is that from 1994 to about 2008, the plaintiff studied or worked substantially over those years, save where interrupted by periods of unemployment and periods when she was treated by Dr Owen. It was not my impression that the plaintiff said that she suffered any level of incapacity of any significance until 2008.
72 Mr Lewis referred me to the affidavit of Mr Tsongas, solicitor, who made enquiries which did not reveal much regarding when the plaintiff worked and for whom she worked.[50] Mr Harrison referred me to the taxation return of the plaintiff for the year ending 30 June 2009[51] and a summary of employers for whom she worked from 2006 which identified her employers and when she worked for them. Mr Harrison submitted that the summary demonstrates that the plaintiff worked for short periods of time in types of employment where typically young employees would be likely to work for relatively short periods of time. He submitted that, when I look at the whole of the plaintiff’s evidence of the sort of work she did from 1994 to the present time, a relatively clear picture emerges of her working history.
[50]DCB 104-113 and 148-152
[51]DCB 190-193
73 I have read the Court Books and the transcript and I have considered the submissions of Mr Harrison and Mr Lewis, and having done so, I have reached the conclusion that the prejudice alleged by the defendant does not amount to prejudice in quality and extent which should see me refuse the plaintiff’s application to extend time within which the plaintiff can bring a proceeding.
74 What strikes me, when I look at all of the evidence and stand back from it, is that I can see a rather simple and relatively uncomplicated picture which I think can be fairly summarised as follows:
· The plaintiff was involved in a transport accident on 3 December 1994 which was the fault of the other driver. There does not seem to me to be a basis upon which liability can be denied, but that does not mean that the defendant cannot put the plaintiff to her proof by not admitting the occurrence of the transport accident.
· There is no question of causation as far as I can see. The other transport accident which occurred in 1994 did not result an injury to the plaintiff’s neck. The transport accident in 2009 did exacerbate the plaintiff’s neck injury, but that can be the subject of a defence by the defendant and can be examined through the evidence of Dr Arsenakis, who is alive and well, and who can be called to give evidence. Indeed, Dr Arsenakis was required for cross-examination until Mr Lewis informed me that the defendant decided to forego its right to cross-examine her.
· The plaintiff's evidence that the advice from her general practitioner that he/she was likely to only prescribe her painkilling medication led her to seek symptomatic treatment only until 2008 when the degeneration of her neck led her to seek more active treatment from a chiropractor, and then from Dr Arsenakis, and ultimately through surgery. It seems to me that this is entirely understandable. It does not appear to me to be particularly difficult to understand the nature and extent of the plaintiff’s neck injury between 1994 and 2008 from the material I have read. It was a cause of pain and no doubt some restriction of movement as well as interference with her capacity to undertake some tasks in her working and non-working life, but my strong impression is that she pursued her studies and work as she chose to without a great deal of interference until 2008.
· The fact that the plaintiff did not obtain any legal advice until she saw her present solicitors is understandable from two points of view. Firstly, the inference I draw is that the plaintiff did not consider that it was worthwhile pursuing a claim because of the limited nature and extent of the problem she was experiencing, and secondly, and in any event, she would not have obtained serious injury before 2008-2009. It appears to me that she certainly had a serious injury following the second episode of surgery, and probably after the first episode of surgery, subject to any arguments which may have been put to the Court at that time that her injury had not stabilised. It would appear that, once the plaintiff was aware that her neck injury was a significant problem, she then sought legal advice from her present solicitor, who appears to me to have expeditiously pursued the application for serious injury and extension of time within which to bring a proceeding.
· There can be not much doubt from the opinions of Mr Doig and Mr Cunningham as to the state of the plaintiff’s neck injury after the two episodes of surgery were undertaken and their capacity to relate that neck injury to the mechanism of the transport accident. It appears to me that, when I examine the history of the plaintiff’s complaints from 1994 to 2008, there is a consistency of complaints by the plaintiff which satisfies me that the neck injury is, in all probability, the product of the transport accident.
· Insofar as the defendant contends that it cannot defend the plaintiff’s claim because of an absence of a clear work history, I think the plaintiff’s evidence has clarified that sufficiently, as has the taxation material to which I have referred. I have already observed that there does not seem to be much in the plaintiff’s claim, if any, for past loss of earnings because it appears to me that she was either starting, was in employment or was being treated by Dr Owen. I must add that Mr Harrison did not submit that the plaintiff has suffered any past loss of earnings of any significance.
75 The foregoing appears to me to be a reasonable, but general summation of the case which the defendant will need to defend when all the evidence before me is considered in the broad. The only remaining matter is to determine whether what McHugh J observed in Brisbane South Regional Health Authority should lead me to conclude that there is evidence of actual prejudice and presumed prejudice. It appears to me that the plaintiff is uncertain about many things concerning her medical treatment and her vocational pursuits, but she is able to adequately describe the nature and extent of the treatment she had between 1994 and 2008, and the studies and vocations she pursued, to demonstrate reasonably clearly what occurred over those years.
76 In the end, I have been assisted by the observations of Buchanan JA in Tsiadis and Warren CJ in Clark that s23A requires the Court to weigh up actual prejudice and presumed prejudice amongst all of the other relevant factors in determining whether it is just and reasonable to grant the extension of time. As observed by Warren CJ, the overriding consideration is whether it is just and reasonable to grant the extension of time.
77 I have considered each of the relevant considerations under s23A(3)(a) – (f). I have dealt with the length of the delay and the reasons for the delay on the part of the plaintiff. I have dealt with the extent to which there is or likely to be prejudice to the defendant. I do not think there are any steps which the defendant could have taken to make available to the plaintiff, means of ascertaining facts which might be relevant to the cause of action. The duration of the plaintiff’s disability has been since 1994, but, in the context of serious injury, the plaintiff’s disability was not known until the plaintiff had surgery and her neck injury stabilised. It appears to me that once the plaintiff knew she had a serious injury, she acted promptly in retaining her present solicitor and bringing this application. The plaintiff’s affidavits and the contents of her Court Book demonstrate the steps which she has taken to obtain medical advice regarding her treatment since 1994, and in particular, the nature and extent of her neck injury post surgery.
78 I have undertaken the synthesis which I am required to undertake by considering all of the evidence and weighing up the contentions of the defendant regarding prejudice and the inaction of the plaintiff. I have also weighed into consideration whether the prejudice is so overwhelming that I should deny the plaintiff leave. I have set out as much as I think is necessary to demonstrate what the actual and presumed prejudice amounts to. In the end, and after synthesising all of the relevant considerations, I am satisfied that it is just and reasonable to grant the extension of time.
Orders
79 I propose to grant the following orders, subject to any further submissions counsel may wish to make:
(1) I grant the plaintiff leave to bring a proceeding pursuant to s93(d) of the Act to bring a proceeding to recover damages at common law.
(2) I grant the plaintiff an extension of time within which to bring a proceeding at common law to 13 September 2013.
(3) I order that the defendant pay the plaintiff’s costs to be assessed by the Costs Court, in default of agreement.
80 I will reserve the question of certification for two counsel and the quantum of counsel fees for further submissions.
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