Byrne v Transport Accident Commission
[2014] VCC 399
•9 April 2014
| 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-11-05790
| ANTHONY BYRNE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 January 2014 | |
DATE OF JUDGMENT: | 9 April 2014 | |
CASE MAY BE CITED AS: | Byrne v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 399 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT – Limitation period
Catchwords: Transport Accident Act – s93 Transport Accident Act 1986 – Serious injury – Aggravation of underlying spinal degeneration
Limitation of action – Limitation of Actions Act 1958 – s23A – Delay in excess of ten years between transport accident and commencement of proceedings – Factors to be considered in relation to leave – Knowledge and conduct of plaintiff – Prejudice to defendant
Legislation Cited: Transport Accident Act 1986 – s93; Limitation of Actions Act 1958 – s23A
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Tsiadis v Patterson (2001) 4 VR 114; De Agostino v Leatch [2011] VSCA 249; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Judgment: Leave granted to the plaintiff to claim damages at common law in respect of injuries sustained in a transport accident occurring on or about 17 June 2001. Extension of time granted to enable issue of proceeding.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC Mr R Morrow | Slater & Gordon Ltd |
| For the Defendant | Mr J Ruskin QC Mr S E Gladman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Mr Anthony Byrne was involved in a transport accident as a passenger on 17 June 2001. At that time he was employed as a senior constable of police and was performing duties with another police officer when the police divisional van in which they were travelling lost control whilst in pursuit of another vehicle and collided with a lamp-post on the centre median strip of Derrimut Road, Werribee.
2 The plaintiff was taken to the Werribee Hospital, where he was diagnosed with a fractured collarbone. He completed claim forms in respect of WorkCover and the Transport Accident Commission on the day of the collision. Approximately one month later, a treating osteopath noted the plaintiff complaining of some lower back pain.
3 The plaintiff now seeks leave from the court in respect of s93(4)(d) of the Transport Accident Act 1986 to commence common law proceedings to recover damages in respect of the injuries received in that collision. The plaintiff identifies the lower back as the body function said to be impaired or lost for the purposes of establishing a definition of “serious injury” described in paragraph (a) of s93(17) of the Act.
4 As will emerge later in the judgment, the plaintiff subsequently came to surgery involving a two-level interbody fusion of the lumbar spine in August 2010.
5 In relation to the grant of leave for “serious injury” the defendant identifies an issue of causation, emphasising incorrect medical histories, the absence of any immediate complaint relating to the lower back and the virtual absence of treatment in respect of the back until at least 2006.
6 Should leave be granted to the plaintiff, he seeks an extension of time in which to institute proceedings in accordance with s23A of the Limitation of Actions Act 1958. The defendant opposes such an application, highlighting questions of delay and prejudice to the defendant as essential issues to be considered.
7 The plaintiff is thirty-nine years of age and, following the transport accident, continued his employment with Victoria Police until September 2007, at which time he resigned from that organisation and accepted a position as an investigator with WorkSafe. Although the plaintiff remains employed by that organisation at the date of determination of this proceeding, he relies upon general restrictions in his sporting, recreational and social life, together with a future pecuniary disadvantage, as providing a basis for the grant of leave under the provisions of the Transport Accident Act. In relation to the application under the Limitation of Actions Act, he relies upon advice given to him by solicitors in 2006 as justification in large part for the delay in commencing a proceeding for leave more than ten years following the transport accident in 2001.
The Evidence
8 The plaintiff was required for cross-examination, and the case otherwise proceeded on material tendered from the Plaintiff’s Court Book (Exhibit A), the Defendant’s Court Book (Exhibit 3), and extracts from medical records. Whilst no concession was made on behalf of the defendant by Mr Ruskin QC, who appeared with Mr Gladman, quite sensibly the question of consequences said to flow from the plaintiff’s post-fusion back was not seriously challenged as amounting to less than consequences which could fairly be described as at least very considerable.
9 The causation issue, however, was forcefully argued, with the defendant submitting that I should not grant leave to the plaintiff unless I had been affirmatively satisfied of a causal link between the 2001 transport accident and the need for spinal surgery to be performed on the plaintiff in August 2010.
10 In relation to the serious injury application, the plaintiff relied upon affidavits sworn on 8 November 2011 and 2 April 2013,[1] together with a further affidavit from his wife Sonia Byrne sworn on 3 April 2013.[2] In the plaintiff’s first affidavit, the following matters are deposed to relevant to the serious injury application:
[1]Exhibit A, pages 40−71.
[2]Exhibit A, pages 72−77.
·The plaintiff had joined Victoria Police in about May 1994 and had worked his way up to the rank of acting sergeant at the date of the transport accident.
·The immediate result of the transport accident was a fractured left collarbone requiring the plaintiff to attend the Werribee Mercy Hospital. He deposed to also suffering low back pain, but the collarbone was initially causing more problems.
·The plaintiff was absent from work for two to three weeks following the accident, initially returning on light duties on a full-time basis.
·The plaintiff sought treatment from a general practitioner and an osteopath and continued to experience ongoing low back pain and eventually left leg pain.
·The physical demands of being an operational police officer, including wearing the police equipment belt, caused difficulty.
·Approximately four years post accident, on referral from another general practitioner, the plaintiff saw a Mr D’Urso, neurosurgeon, who recommended conservative treatment.
·The plaintiff continued to have problems with his low back and resigned from Victoria Police in September 2007 to commence as an investigator with WorkSafe.
·The plaintiff returned to see Mr D’Urso in about 2009 when surgery was first recommended.
·On 25 August 2010, Mr D’Urso performed a double level spinal fusion on the plaintiff.
·After a period of three or four months off work, the plaintiff returned with improved leg symptoms but continuing to suffer ongoing back pain.
·The plaintiff continues to use conservative strategies and occasionally takes analgesic painkillers to reduce the symptoms of his back pain.
11 The affidavit goes on to describe the plaintiff’s claimed consequences flowing from his back injury, to which I need not refer at this stage. The second affidavit, sworn on 2 April 2013, deposes as to a gradual worsening of symptoms with time and a variation in the severity of symptoms felt to be due to the level of the plaintiff’s activity. The plaintiff continues to use medication, including strong analgesia as needed, and various types of physical therapy. The second affidavit again deposes as to other matters which are not relevant to the immediate issue.
12 The affidavit sworn by the plaintiff’s wife on 3 April 2013 is relevant to the serious injury application, particularly as follows:
·Mrs Byrne first met the plaintiff in 1991 and commenced a relationship with him in 1998.
·She describes the plaintiff as “extremely fit and active” pre transport accident, describing a number of active sports and hobbies in which he was then engaged.
·She confirms post accident complaints of lower back pain associated with erratic sleep, mood swings and frustration.
·Following the transport accident, she describes actions, such as caring for their young children, where she observed difficulties she attributed to the plaintiff’s back condition.
·She generally corroborates the plaintiff’s affidavit material in relation to his ongoing medication and visits to an osteopath up to the time he underwent spinal surgery.
13 The remaining matters referred to in Mrs Byrne’s affidavit are relevant in terms of an assessment of the plaintiff’s level of consequences, but do not need to be restated here.
14 When the plaintiff was cross-examined, the following evidence was elicited from him:
· There was nothing in his affidavit concerning any back trouble prior to the accident.[3] (In fact the plaintiff maintained he did not have any back problems before the accident.)
[3]Transcript (“T”) 30, L25–27.
· The provision of an accurate history to an examining doctor was accepted as important.[4]
[4]T31, L22–24.
· The first history suggesting any pre-accident back pain was given to Mr Huffam in August 2012.[5]
[5]T34, L8–29.
· The plaintiff maintained that he did not specifically recall having any back pain prior to the transport accident.[6]
[6]T37, L17–22.
· The plaintiff had attended the Geelong Osteopathic Clinic on 16 February 2000 with presenting symptoms in the right shoulder radiating into the right side of the neck.[7]
[7]T42, L18–26.
· The plaintiff accepted that there were references in the records of the Geelong Osteopathic Clinic to complaints of lower back pain or lower back stiffness recorded between 21 February 2000 and 17 April 2000.[8]
[8]T45, L20–T48, L9.
· Following the accident, the first reference was “fractured left clavicle and whiplash injury” referable to the cervical spine, with low back pain mentioned for the first time in the clinical notes on 20 July 2001.[9]
[9]T49, L11–15.
· The plaintiff accepted that there were further references to low back pain in the clinical notes in March, July and September 2002.
· The plaintiff agreed that the transport accident claim form acknowledged that he had suffered low back and neck pain prior to the transport accident.[10]
[10]Exhibit 3, page 42, and T54, L22–28.
· Within the six-month period following the accident, the plaintiff accepted that he was playing in a water polo grand final and renovating a house.[11] (The plaintiff stated he did not do much but might have pushed a wheelbarrow.)
[11]T57, L1–5.
· The plaintiff agreed that he had seen a Dr Harrison as a general practitioner until he began seeing Dr Carroll in June 2005. He did not recall seeing Dr Harrison very often, but continued to go to the osteopath.
· The plaintiff accepted that in about 2005 he had been involved in a typical scuffle involving a bit of a fight in which he had “copped a knock”, left anterior rib region. He agreed that normal duties in police work arresting people unfortunately involved getting into scuffles.[12]
[12]T60, L15–19.
· The plaintiff denied giving a misleading history, and stated:
“I don’t really recall any lower back pain before the accident. I recall seeing the osteopath for a shoulder, shoulder and neck maybe, but not lower back pain.”[13]
[13]T60, L20–29.
· The plaintiff agreed that he had progressed in the police department from a senior constable at the time of the accident to a detective and then an acting sergeant, involving partial completion at least of the detective training school course. This had occurred between 2005 and 2007.
· By June 2007 the plaintiff’s earnings in the police department were $71,000. When he obtained work as an investigator with the VWA his wages had increased progressively to about $95,000 gross for the 2013 year.
· The plaintiff’s work as an investigator involved investigating fatalities and serious injuries, primarily being workplace accidents.
· The plaintiff claimed there were a number of reasons why he left the police force, but admitted a record made in 2010 to the effect “he commented that his decision to leave the police force was not related to his back injury”.[14] (I note that the same record taken by an occupational therapist recorded the following: “He commented that his decision to leave the police force was not related to his back injury. He stated that during the course of his work as a policeman he sustained many fractures and soft-tissue injuries, but he is only now troubled by the chronic pain that is related to the significant lower back injury he sustained in the 2001 MVA.”[15])
[14]T67, L20–30.
[15]Exhibit 3, page 110, and T68, L20–26.
· The plaintiff agreed that in the period between 2003 and 2006 his back was getting worse, and by 2003 he had some pain going down the leg.[16]
· By 2005 the plaintiff had changed general practitioners, stating that Dr Harrison was no longer practising at the clinic, and the plaintiff was then treated by Dr Carroll.
[16]T71, L25–29.
15 The remainder of the cross-examination was directed towards matters relevant to the Limitation of Actions application to which I will refer later.
The Medical evidence
16 The only medical material proximate to the transport accident relied upon by the plaintiff is a referral by Dr Daryl Pye to a physiotherapist/osteopath dated 21 June 2001.[17] That referral states:
“Anthony Byrne has sustained severe whiplash injury to his spine, especially cervical and thoracic spine in MCA 17/6/01.”
[17]Exhibit A, page 86.
17 Next in time is a plain x‑ray and CT report dated 15 June 2006 and apparently ordered by Dr Carroll. This confirms a 12‑millimetre spondylolisthesis of L5 on S1, and notes bulging of the L4‑5 disc. It does not record any nerve-root compression or impingement of the thecal sac. The report does note, however, slight impingement on the right L5 nerve root. There is at that time no report from Dr Carroll, and the history noted in the radiologist’s report is “Work-related back pain. Bilateral sciatica.”[18]
[18]Exhibit A, page 81.
18 The plaintiff’s material in support of the application continues in February 2009 with a report from Dr Richard Todd, osteopath, addressed to the WorkCover insurer.[19] Significantly on the question of causation Dr Todd stated at that time:
“Mr Byrne has been attending our clinic for continuing treatment of his original WorkCover claim. The report refers to a left lumbosacral disc prolapse and compression of the L5 nerve root. Dr Todd notes a history of intermittent treatment being required as acute aggravations of the symptoms occur.”
[19]Exhibit A, page 87.
19 In Dr Carroll’s first report to solicitors dated 5 February 2012[20] he records first seeing the plaintiff on 28 June 2005, and, according to the report, the first consultation directly in relation to the back injury was 15 June 2006. The history recorded by Dr Carroll at that stage was that the plaintiff indicated:
“... he suffered no significant back issues prior to the accident.”[21]
[20]Exhibit A, page 105–106.
[21]Exhibit A, page 105.
20 Dr Carroll provided a diagnosis of a soft tissue injury to the lumbosacral spine resulting from the transport accident, but noted that although the accident was a significant contributing factor to the injury there had been a longstanding L5‑S1 spondylolisthesis and pars defects which had been aggravated in the accident.
21 In a further report sent to the plaintiff’s solicitors three months later the history has subtly changed, with Dr Carroll recording:
“I am not aware of Mr Byrne suffering any back pain prior to his accident and the accident is responsible for his injuries.”[22]
[22]Exhibit A, page 108.
22 That same history is repeated in a report provided by Dr Carroll to the Accident Compensation Conciliation Service on 17 February 2013.[23]
[23]Exhibit A, page 112.
23 The plaintiff relies upon three reports from Ms Camille Fromm, physiotherapist, all of which provide support for a relationship between the transport accident and the plaintiff’s need to undergo spinal surgery in 2010. These reports date from 28 April 2012 to 4 July 2013. It would appear that Ms Fromm commenced treating the plaintiff on 29 September 2011. Despite the opinion supporting a relationship between the transport accident and the need for surgery in each of her reports, I am disinclined to place any real weight on such an opinion, given the time delay between the transport accident and the commencement of her treatment. However, she does record that the plaintiff had treatment at the Geelong Osteopathic and Healthcare Clinic from 2001 until August 2010.
24 Although it is not entirely clear from the medical material relied upon by the plaintiff, it would appear that the report from Dr Richard Todd, osteopath, dated 1 February 2009, does relate to the treatment received shortly following the transport accident as described in paragraph 11 of the plaintiff’s first affidavit.[24] That report refers to the osteopathic clinic providing “continuing treatment of his original WorkCover claim”, and the progress of the treatment is consistent with an original injury of the type described worsening over time and eventually requiring surgery as was performed by Mr D’Urso in 2010.
[24]Exhibit A, page 42.
25 The treating neurosurgeon, Mr Paul D’Urso, has provided two reports: the first, dated 28 September 2010, addressed to Gallagher Bassett Workers Compensation Vic Pty Ltd; and the second, dated 15 November 2011, addressed to the plaintiff’s solicitors. Additionally, a copy of Mr D’Urso’s operation report is relied upon by the plaintiff. It is only in the report to the plaintiff’s solicitors that Mr D’Urso sets out any history or opinion as to causation. There is no history recorded by Mr D’Urso of any previous back problems predating the transport accident. Mr D’Urso recorded his first examination of the plaintiff on 3 July 2006, and the second is noted as 26 March 2010, some three years and eight months later. He then reviewed the plaintiff on two further occasions in May and August 2010 before performing a two-level interbody fusion from L4 to S1 together with a rhizolysis procedure. In terms of causation, Mr D’Urso notes:
“It would appear likely that the motor vehicle accident of 17th June 2001 has been a significant contributing factor to the precipitation of symptoms, subsequent disability, and necessity for surgical intervention.”[25]
[25]Exhibit A, page 100.
26 The plaintiff relies upon an opinion from Mr Daryl Nye, neurosurgeon, dated 7 June 2010. This opinion was directed to Gallagher Bassett Services Workers Comp P/L, and was clearly obtained in relation to the surgery that was performed in August of that year. In relation to the causation issue, Mr Nye opined:
“I consider there is a nexus between the identified condition and the original work related injury, and treatment is justified on the basis of an expected reduction in pain levels resulting.”[26]
[26]Exhibit A, page 91.
27 The plaintiff relies additionally on medico-legal opinions from Mr David Brownbill, neurosurgeon, and Professor Stephen Davis, neurologist, in relation to the issue of causation.
28 Mr Brownbill first saw the plaintiff on 25 January 2012, and, whilst supporting a causal relationship, does so on somewhat guarded terms. In his first report he states:
“On the information provided and noting that he did not have any previous back pain with the onset of back pain following the motor vehicle accident of June 2001 and the continuation of such pain since then with associated radiating leg pain and the later demonstration of an L5‑S1 spondylolisthesis with pars defects, I consider this man on probability had pre existing, asymptomatic pars defects which were aggravated by the described motor accident with associated spondylolisthesis (for which he has undergone fusion surgery).”[27]
[27]Exhibit A, page 119.
29 This opinion is restated in less qualified terms in a later report dated 18 December 2013. I note that Mr Brownbill obtained no history of any back pain predating the transport accident.
30 Professor Stephen Davis provided two reports to the Transport Accident Commission. The first, dated 3 July 2012, is directed towards an impairment assessment. That report makes no reference to any back pain predating the transport accident, and notes the occurrence of low back pain immediately after the accident and the development of sciatic pain in the left leg in the short period of time following it. The opinion expressed in Professor Davis’ first report concerning causation is as follows:
“Given a review of all of the available documents and the patient’s history, there is reasonably good evidence that low back pain came on shortly after the accident and was a persistent problem over many years, building up to the more severe left sided sciatica and surgery performed by the neurosurgeon Mr Paul D’Urso.”[28]
[28]Exhibit A, page 144.
31 Subsequent to that report Professor Davis was provided with clinical notes from the Geelong Osteopathic Healthcare Clinic records which apparently noted that the plaintiff had complained about low back problems on a number of occasions in 2000 before the transport accident of 17 June 2001. After receiving that history, Professor Davis commented:
“There seems no doubt that the patient did have documented low back pain before the accident. It may well have been that the accident worsened his low back pain and I can only base this on the history obtained from the patient.
It is impossible to say whether the accident per se was the episode that led to the need for Mr Byrne’s back surgery, but I think it would be reasonable to say that it did involve an exacerbating episode on top of a prior documented history of back pain.”[29]
[29]Exhibit A, page 140.
32 The plaintiff further relied upon medical reports from Mr Michael Troy, dated 20 January 2012 and 23 February 2012, which related to impairment assessments conducted for the purposes of the provisions of s98C/E of the Accident Compensation Act 1985. Apart from the fact that Mr Troy has performed these assessments and found levels of impairment, they are not otherwise of particular assistance on the question of causation. I am in no way being critical of the opinion of Mr Troy, but I note that he first conducted an examination of the plaintiff on 17 January 2012, some eighteen months following fusion surgery for which the WorkCover insurer had presumably accepted liability. Additionally, there is no record of him obtaining any history from the plaintiff of any previous back pain such as was obtained from the plaintiff in cross-examination in this proceeding.
33 The final specialist medical opinion is that obtained from Mr William Huffam, orthopaedic surgeon. Mr Huffam obtained a very limited history of back pain preceding the transport accident at the time of his first examination. He recorded:
“Mr Byrne states that prior to the motor vehicle accident under consideration he did not have any back pain except for a little after heavy gardening.”[30]
[30]Exhibit 3, page 22.
34 On that history he expressed quite a definitive conclusion in relation to causation, stating:
“My final conclusion is therefore that Mr Byrne’s back condition and subsequent operation are completely compatible with an injury to the back incurred in the motor vehicle accident of 17.6.2001.”[31]
[31]Exhibit 3, page 25.
35 Mr Huffam was later provided with additional material enclosed in a letter from the plaintiff’s solicitor dated 25 March 2013.[32] The material provided to Mr Huffam noted, amongst other things, the earlier recorded complaints of back pain on four occasions in 2000 predating the transport accident.
[32]Exhibit 3, page 143–150.
36 In Mr Huffam’s supplementary report he modified his earlier opinion so that he accepted that the transport accident may have been a contributing factor to the condition progressing to surgery but may well have not been a major factor.[33]
[33]Exhibit 3, page 28.
Analysis
37 The plaintiff carries the burden of proving that the consequences of any back injury sustained in the transport accident can properly be described as “at least very considerable” when compared to a range of other or possible impairments so as to satisfy the statutory test. In short, the injury must be “Humphries serious”.[34] This inevitably involves a proof that the consequences properly result from the aggravation injury.[35]
[34]Humphries v Poljak [1992] 2 VR 129.
[35]De Agostino v Leatch & Anor [2011] VSCA 249 at [60]-[61].
38 Quite properly, the defendant argues that medical opinions are, to a considerable extent, dependent upon the accuracy of the history provided. I was referred to the judgment of Brooking JA in Mobilio v Balliotis[36] where his Honour stated precisely that principle and stressed the advantage which a Judge at first instance has in assessing the claimant’s credibility.
[36][1998] 3 VR 833 at 836.
39 In the present case, regardless of my impression of the plaintiff as a truthful or honest witness, I must take into account the fact that several of the histories taken by doctors who have provided opinions as to causation omit any reference to back pain predating the transport accident. Indeed, Mr Ruskin went so far as to argue that it was only Professor Davis and Mr Huffam who had obtained the correct history after copies of the relevant clinical records were provided to them by the defendant’s solicitors in 2013. Whilst this argument is valid to some degree, it omits the fact that, even after the provision of the full medical history, neither Professor Davis nor Mr Huffam was to exclude the transport accident as playing some role in the development of increased back symptoms leading to the necessity for the plaintiff to undergo spinal surgery in 2010.
40 Whilst the passage referred to in Mobilio is a useful principle, it must be applied in accordance with the totality of the evidence given in a particular case. In the present case, it is abundantly clear that the plaintiff had continued to assert a relationship between the back symptoms experienced by him shortly after the transport accident and the treatment that was provided to him up to the present day, including the surgical procedure performed by Mr D’Urso in 2010. The plaintiff maintained in the face of cross-examination that he had not been aware of back problems prior to the transport accident. Whilst the medical records disclose that there were four attendances relating to the low back in the 2000 calendar year, nevertheless the plaintiff continued to work as a police officer during that period and remained engaged in his sporting and recreational activities. When the plaintiff was challenged as to the misleading history given to doctors, his response that he did not really recall any low back pain prior to the accident struck me as a genuinely held belief.
41 I do accept the plaintiff as a truthful and honest witness, but the question of the reliability of his evidence remains critical to the success or otherwise of his application. In this regard I am assisted by the affidavit evidence of the plaintiff’s wife, the report provided from the osteopath Dr Todd, the opinions provided by Dr Carroll, who commenced treating the plaintiff in 2005, and Mr D’Urso, who first saw the plaintiff in 2006.
42 In relation to the four recorded complaints of back pain between February and April 2000 noted in Exhibit 3, I agree that these provide evidence that the plaintiff had sufficient problems with his low back to seek osteopathic treatment during this period. I also note from Exhibit 3 that the evidence discloses that the initial episode recorded on 21 February 2000 refers to the plaintiff attributing low back pain to the police belt weighing 15 kilograms or heavier. A further notation states “is now a w/c case”.[37]
[37]Exhibit 3, page 60.
43 I have considered the matters canvassed by Mr Ruskin QC with the plaintiff in cross-examination concerning both the episodes of back pain preceding the transport accident, and also the further cross-examination suggestive that the plaintiff continued to have lower back troubles but kept performing his own self-restricted duties between 2001 and 2007.[38]
[38]T67, L15–17.
44 There is a gap in recorded complaint of low back pain of 14 months between April 2000 and 17 June 2001, during which time the plaintiff continued not only with his unrestricted police duties but also with the pre-accident sporting, domestic and recreational activities, without further recording of any low back condition.
45 Mr Blanden SC, who appeared with Mr Morrow for the plaintiff, argued that the recorded episodes of back pain prior to the transport accident were indicative not of a pre-existing incapacity but rather a predisposition or a susceptibility to that type of injury. This is consistent with the later radiological findings, and would seem to be confirmed at least by the treating osteopath, who would appear to have been in an excellent position to make an assessment of the plaintiff, given that he had treated him both before and after the transport accident.
46 I also regard the transport accident as consistent with a forceful assault on the plaintiff’s lower back, given the description of the collision and the fact that the plaintiff suffered a fracture of the left clavicle and was absent from any work for a period of weeks. Given that he became aware of back pain during that period suggests as a matter of probability that he suffered a significant injury to his lower back in the transport accident.
47 For the reasons set out above, I am satisfied that the injury to the lower back sustained in the transport accident resulted in an aggravation of the underlying degenerative condition necessitating the surgical treatment in August 2010.
48 Although the defendant did not seriously agitate the seriousness of the plaintiff’s consequences following surgery, it is appropriate for me to make a finding on the evidence led in this application. The principles relevant to s93 applications are well established and I will not restate them here. I do find that the plaintiff suffers consequences of his lower back injury that can be fairly described as “at least very considerable when compared with a range of possible or other impairments”. I find that those consequences are long-term in that they have continued to the present date (nearly thirteen years post accident) and the totality of the medical opinion suggests they will continue indefinitely into the future. In particular I regard the following matters as relevant in making a qualitative assessment of the plaintiff’s consequences:
· The plaintiff is a relatively young man, presently aged forty, who sustained his injury when twenty-seven years of age.
· The plaintiff had been a serving police officer for slightly over seven years at the date of the accident, and subsequently changed his career in September 2007. Although the plaintiff gave a history in 2010 commenting that his decision to leave the police force was not related to his back injury, he stated in the same history that, although he had suffered many fractures and soft tissue injuries during the course of his work as a policeman, he was then only troubled by the chronic pain that is related to the significant lower back injury he sustained in the 2001 MVA.[39]
[39]Exhibit 3, page 110; and T68, L20–26.
· The medical material supports a conclusion that the plaintiff is not fit for unrestricted full duties such as he may have been required to perform as a police officer.
· The plaintiff underwent a double-level spinal fusion in 2010 and has been left with considerable pain, sleep disturbance, and the requirement to take ongoing medication including strong analgesia on occasions.
· The plaintiff has had increasing difficulties participating in sporting activities including water polo, surfing, touch football, running, gym and swimming.
· Regardless of the specific reason why the plaintiff left the police force in 2007, the end result is that his spinal surgery has effectively precluded him from ever successfully continuing as a career policeman.
I have not attempted to exhaustively set out the matters which may be relevant to the seriousness or otherwise of the plaintiff’s consequences in light of the pragmatic approach taken to this aspect of the case by the defendant.
49 I now turn to the application to extend time in accordance with the provisions of s23A of the Limitation of Actions Act 1958 (Vic). I set out below the relevant provisions:
23A 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.
50 As with serious injury applications, the legal principles relevant to extension of time applications are generally well established, and I will not fully recite them here, save to say that the plaintiff bears the burden of persuading the court that it is just and reasonable to extend the limitation period. The approach taken by the court must be to synthesise the competing considerations in order to reach a conclusion to grant or refuse the application.[40]
[40]Tsiadis v Patterson (2001) 4 VR 114 at [33].
51 It is proper to regard the limitation period imposed by the statute as being the general rule intended for application; the extension provision should be regarded as an exception:
“The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”[41]
[41]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 551.
52 In the present case the operation of the statutory limitation would come into effect on 17 June 2007 (ie, six years following the occurrence of the transport accident). The leave sought in the present case requires an effective substitution of a period approaching thirteen years if leave is to be granted. The matters to be taken into account in reaching a decision as to whether it is just and reasonable to do so require me to take account of the matters set out in sub-paragraphs (a) to (f) of s23A(3).
53 The period of delay for the purposes of sub-paragraphs (a) and (b) relating to the actual delay and any prejudice to the defendant is a period now approaching thirteen years. The facts relevant to the delay I find as follows:
· The plaintiff sought legal advice provided to him by Mr Stephen Walsh of Maurice Blackburn Cashman when he was a serving police officer. This advice was received by him in or about June 2006.
· The legal advice provided was relevant to a claim made in accordance with the provisions of s134AB of the Accident Compensation Act 1985, rather than a claim for leave made in accordance with s93(17) of the Transport Accident Act. Significantly, the letter[42] refers not only to a common law claim for damages but also to claims for weekly payments of compensation, medical and like expenses, and s98C lump sum compensation. The letter specifically sets out the serious injury test in the Accident Compensation Act which refers specifically to an economic loss claim based on a permanent loss of earning capacity of at least 40 per cent or more, based upon earnings received three years prior and three years post injury. This letter of advice would have been appropriate for a claim made under the provisions of the Accident Compensation Act but not one under the provisions of the Transport Accident Act.
[42]Exhibit 3, pages 117–119.
· I accept that at the time the plaintiff received the advice in 2006 he was of the belief that he had no prospect of satisfying the serious injury threshold of which he had been advised.
· When the plaintiff left the police department in 2007 he actually increased his level of earnings in his employment with WorkSafe as an investigator. I find that this would have added to the plaintiff’s then-belief that he had no viable prospect of success in a serious injury application.
· It was not until the plaintiff consulted Mr Craig Sidebottom of his present solicitors on 14 September 2011 that he formed any belief that he may have had a viable claim at common law.
· The extent to which the delay is likely to be prejudicial to the defendant is both general, in terms of the overall delay, and specific, in that there are some documents unavailable to the defendant which may have been available had the proceeding been commenced within time. Whilst the length of the delay is of course relevant, this is an unusual case. The defendant is probably in a position where it has been able to obtain information concerning the plaintiff’s medical condition and medical treatment due to the fact that the plaintiff completed both a WorkCover and TAC claim following the transport accident and, whilst the day to day management of the claim was done under the provisions of the Accident Compensation Act by the WorkCover insurer, there is conveniently a “paper trail” available to both parties in this proceeding so that the assessment and treatment of the plaintiff’s medical issues and details of his capacity for work or otherwise would be available in any common law proceeding.
54 The specific prejudice pointed to in argument by the defendant is twofold. First it concerns the clinical records of Dr Harrison, whom the plaintiff consulted from about 1990 to 2005. While I accept the material set out in the affidavit sworn on behalf of the defendant by Ms Belinda Grgic on 10 April 2013,[43] I do not believe, on balance, that the absence of Dr Harrison’s records should disentitle the plaintiff from the relief he seeks. In particular:
[43]Exhibit 3, page 120–125 esp at [14]–[23].
· The plaintiff’s own evidence was to the effect that he did not see Dr Harrison on many occasions.
· Unequivocally, the plaintiff had continued to work as a police officer, performing full duties, throughout the period up to the time of the transport accident.
· The information report from Medicare Australia is consistent with the plaintiff’s evidence, in that it records attendances with Dr Harrison only in October 2002, January 2003, October 2003 and December 2003 in the relevant period.[44]
[44]Exhibit 3, page 134.
55 The defendant also makes a similar claim for specific prejudice arising from its inability to obtain clinical records from Dr Pye at the Geelong Medical and Accident Centre relating to an attendance on 3 April 2001. Again I accept the evidence set out in the affidavit by Ms Grgic sworn 20 June 2013 as to the unavailability of these records.[45] On this issue the plaintiff has relied upon a referral record from Dr Pye dated 21 June 2001 specifically relating to the transport accident on 17 June 2001. Whilst there is always a possibility that the earlier attendance referred to in the Medicare information may have contained something relevant, I find on balance it would be extremely unlikely that Dr Pye would make a referral to a physiotherapist or an osteopath four days after the transport accident referring only to the transport accident if there was indeed some other relevant history that should have been provided. Again, the material set out in the report from Dr Richard Todd, the osteopath, provides positive confirmation that enables me to conclude that any prejudice to the defendant of a specific nature is more likely imagined rather than real.
[45]Exhibit 3, page 151–2.
56 I find that subsequent to the plaintiff receiving relevant legal advice from his present solicitors he has acted promptly, in that an application was made to the defendant for a serious injury certificate within two months of the plaintiff contacting his present solicitors. When that application was refused, the present originating motion was issued approximately two weeks later.
57 In so far as it is relevant to the question of general or specific delay, I note the email sent by the senior legal manager of the defendant to the plaintiff’s solicitor on 17 January 2012 in relation to a particular delay occurring after the originating motion was lodged with the court.[46]
[46]Exhibit A, page 149.
58 Apart from the aspects of delay to which I have referred, there could be no suggestion that the defendant had in any way hindered or delayed the ability of the plaintiff to prosecute a common law claim if he had chosen to do so by the initiation of an origination motion before 17 June 2007. The question of any disability suffered by the plaintiff is also not relevant to the present application.
59 I have found that once the plaintiff consulted his present solicitors in September 2011 he acted promptly and reasonably. I accept that this was at a time following the spinal surgery when he became acutely aware that he was suffering from an ongoing disability that would not totally resolve. I am aware that the plaintiff must have had some knowledge of the degenerative condition affecting his lower back at or about the time he consulted Mr D’Urso on the first occasion in July 2006, but I accept the plaintiff’s evidence that he had gone to see Maurice Blackburn Cashman solicitors on referral from the police association because he was concerned about the future of his then job and the options available to him. I find that the advice he was given at that time was advice of a general nature, and directed rather to potential rights under the Accident Compensation Act rather than rights under the Transport Accident Act.
60 I propose to grant the plaintiff leave pursuant to s23A(2) to commence a proceeding out of time for damages resulting from injuries received in the transport accident of 17 June 2001.
61 I will hear the parties in relation to the proposed formal orders and orders for costs in respect of each application.
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