Daic v Transport Accident Commission

[2015] VCC 1817

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-04285

NURIJA DAIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21 and 22 October 2015
DATE OF JUDGMENT:	14 December 2015
CASE MAY BE CITED AS:	Daic v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 1817

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:             Damages – transport accident – serious injury – injury to the left upper limb – Limitation of Actions Act 1958, s23A extension of time application

Legislation Cited:     Transport Accident Act 1986, s93(4)(d); Limitation of Actions Act 1958, s23A

Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Dordev v Cowan & Ors [2006] VSCA 254; Peak Engineering v McKenzie [2014] VSCA 67; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Millard v Victoria [2006] VSCA 29; Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Delai v Western District Health Service & Anor [2009] VSC 151

Judgment:                 Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Nash QC with Mr C B Thomson	Hymans Solicitors
For the Defendant	Mr J P Gorton QC with Ms J Frederico	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 31 December 2005 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long-term impairment or loss of a body function”. 

4       The body function pursuant to subparagraph (a) relied upon by the plaintiff is the left upper limb.

5       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[1]

[1][1992] 2 VR 129 at 140-1

7       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[2]

[2](2000) 1 VR 79

8 There was also an application for an extension of time pursuant to s23A of the Limitation of Actions Act 1958.

9       The plaintiff swore four affidavits and was cross-examined.  He also relied on an affidavit sworn by his daughter, Amira on 25 September 2015.  The defendant relied on an affidavit sworn by its solicitor Simone Leith on 6 August 2015 and also an affidavit sworn by Michelle Castle, lump sum co-ordinator, on 20 October 2015. Both parties relied on medical reports and other material which was tendered in evidence.

The Plaintiff’s evidence

10      The plaintiff is presently aged seventy-four, having been born in September 1941 in Bosnia.

11      Having worked in Bosnia as a builder’s labourer, the plaintiff migrated to Austria aged nineteen, where he continued similar work, and then came to Australia with his wife and child.

12      The plaintiff’s work history since the 1960 in Australia has included work on the railways, sugar fields, tobacco farms and operating his own roadhouse.

13      Having settled in Victoria permanently in 1972, the plaintiff worked at Yallourn W power station as a truck driver for about a year-and-a-half before moving to APM Mill, where he worked for two years as a carpenter.  Whilst in that employ in 1987, the plaintiff injured his back lifting boards (“the work injury”).[3] 

[3]Transcript (“T”) 18

14      Simon Parsons acted for the plaintiff in relation to his work injury claim.  The claim settled for $9,000.[4]

[4]T25

15      In 1987, the plaintiff stopped work and then worked for a short time with James Hardie.  He left that job because he thought he had asbestosis.

16      The plaintiff went on a disability support pension because of his back condition.  He has been on that pension because he cannot work anymore.[5]

[5]T20

17      The plaintiff deposed that from 1987 until the accident, he carried out no physical work whatsoever and the only minor problem from which the plaintiff occasionally suffered was back pain.  

18      The plaintiff did not think pre accident there was anything else. He was able to dig the garden and clean.  He stopped gardening straight after the accident.[6]

[6]T129

19      The plaintiff confirmed he had had back pain since the eighties that was enough to stop him working.[7]  The pain was worsening.[8]

[7]T128

[8]T20

20      On the said date, whilst driving his motor vehicle along Point Nepean Road, the plaintiff was involved in a collision with a vehicle that crossed onto his side of the road, striking his vehicle heavily on the right pillar which separated the driver’s door from the back passenger door (“the accident”).

21      On impact, the plaintiff’s vehicle started to spin and the plaintiff swung the steering wheel to the right.[9]

[9]T56

22      Initially, the plaintiff felt severe low back pain and also pain in his shoulders, head and chest.  He was attended to by an ambulance at the scene and then taken to Rosebud Hospital, where he was discharged later that day.  He then had pain in both shoulders and chest, which he found out later was a fractured rib.  He had low back pain, headaches and head pain across his chest where he had been bruised by his seatbelt.

23      The plaintiff recalled he told the ambulance and hospital that he had significant pain in both shoulders.[10]

[10]T59, T126 – Plaintiff’s counsel conceded there was no mention of the left shoulder in the ambulance report

24      The plaintiff could remember having pain in his shoulders in the week after the accident.[11]

[11]T61

25      On 3 January 2006, the plaintiff attended Dr Won at Southern Cross Medical Centre in Hampton Park (“the Medical Centre”). The plaintiff was then having quite severe chest pain and bilateral shoulder pain. He was having difficulty breathing, and certainly difficulty sleeping.

26      The plaintiff recalled telling Dr Won about right-sided low back pain, pain in both shoulders, right-side headache pain and bruising to the chest. 

27      In the plaintiff’s Claim for Compensation dated 23 January 2006, injuries were listed in answer to Question 26, as:

“Fractured ribs, right side, low back pain, shoulder pain – left side, shoulder pain – right side, headache, bruise or bruising caused by seat belt.”

28      The plaintiff could not recall the circumstances in which the Claim Form was completed. He did not complete the form or put ticks or crosses in the boxes indicating he had never had a work-related injury and had not made a worker’s compensation claim previously.[12]

[12]T62

29      Dr Voon at the Medical Centre has also treated the plaintiff for his accident injuries since 2006. The plaintiff told him about his left shoulder problems all the time.[13]

[13]T86

30      Eventually, the plaintiff was referred to Dr Thomas at the Victorian Rehabilitation Centre (“VRC”).  The plaintiff had physiotherapy, hydrotherapy, occupational therapy and psychological treatment at the VRC.

31      Maybe the physiotherapist did not record the plaintiff’s left shoulder complaints, but the plaintiff definitely told him.[14]  He also told Dr Thomas about left shoulder pain.[15]

[14]T65

[15]T66

32      The plaintiff deposed that by May 2006, the neck pain which he had constantly been complaining about had improved with physiotherapy. In cross-examination however, he disagreed that there had been an improvement, as Dr Voon noted.[16]

[16]T66

33      The plaintiff was referred to Dr Lee, a pain specialist at the VRC.  The plaintiff was then still having mid to low back pain, some neck pain, and also difficulty with Post-Traumatic Stress Disorder (“PTSD”) due to the fact that he could not sit in a car and travel as he became nervous and upset.

34      At the VRC, the plaintiff had exercises and hydrotherapy for his left shoulder. He had left shoulder pain at that time; not as much as now, but the pain was there.[17]

[17]T68

35      By October 2006, the plaintiff’s general practitioner, Dr Voon referred him to Mr Khan, orthopaedic surgeon, who arranged x‑rays of his thoracic spine and both shoulders and a nuclear bone scan in November 2006. 

36      The plaintiff was then still complaining quite regularly of pain to both shoulders and in the back.  He knew the back pain was an aggravation of his work injury, but the pain in both shoulders was a new one, and even though he was taking regular medication, it was not improving. 

37      The plaintiff told Mr Khan he had pain in both shoulders. This appointment was arranged by the plaintiff’s solicitor Mr Bektas to seek Mr Khan’s opinion about surgery.[18]  The plaintiff did not believe that when he saw Mr Khan in November 2006, that he was able to move his left arm without pain.[19]

[18]T70

[19]T71

38      Eventually, the plaintiff was referred by Mr Khan back to Dr Thomas at the VRC for further exercises and treatment.

39      By 2 June 2009, the plaintiff was still complaining of left shoulder pain, and Dr Voon referred him for an ultrasound. Following that investigation, the plaintiff finally discovered he had a full thickness tear of the left shoulder.  Dr Voon thought that injury was a result of the accident.

40      The plaintiff had problems with his left shoulder from the first day after the accident. He could not tell how long after the accident he was sent for that test.  He was not surprised to hear he had a tear, because he had pain.[20]

[20]T75

41      The plaintiff denied that after the ultrasound, he attended Monash Medical Centre, rather than ask the defendant to pay for him to see a specialist, because he thought the shoulder tear had nothing to do with the accident.[21]

[21]T86

42      By that stage, the plaintiff was having difficulty carrying out any domestic work or working in the garden.  He was having trouble driving his car, but that was due to glaucoma in both eyes.

43      The plaintiff confirmed he had complained about bilateral shoulder pain to his doctor in 2012.[22]

[22]T104

44      By July 2013, the plaintiff had had heart surgery, undergoing a quadruple bypass.

45      The plaintiff’s shoulder injuries, particularly the left, were causing him difficulty sleeping, with problems when he turned on his left side.  He had numbness with pins and needles.  He had to sleep flat on his back, and often would simply lie on the couch and sleep there.  His lack of sleep made him very tired, grumpy and upset most mornings.

46      As of his first affidavit of 5 September 2014, the plaintiff still suffered quite severe left shoulder pain.  Even though he was too old to have surgery, he was still severely restricted in many activities he used to do prior to the accident.  His social life had changed considerably.  He no longer drove, but that was due to his eyes.  He was most reliant on other people to help with activities he previously carried out without a second thought.

47      In his most recent affidavit, sworn 25 September 2015, the plaintiff noted he had back pain prior to the accident and had taken medication, usually Panadol or Panadeine Forte, when it was more painful.  However, his back did not cause him any major trouble getting to sleep.  He could still be reasonably active, as long as he was careful and did not overdo things.  He had learnt to cope well over the years with his back pain which was mild to moderate.

48      Since the accident, back pain had become much worse.  The plaintiff also had pain in his neck and both shoulders.  The shoulder pain varied.  The left was very painful immediately after the accident, then for a time, the right shoulder became more painful, but in the later years, the left had been the most disabling symptom of all. He confirmed he had continuing problems with both shoulders, but the left was the worst, and much worse now.[23]

[23]T57

49      The plaintiff demonstrated he could lift his left arm out to 90 degrees. That had been the case since the accident.[24]

[24]T124

50      The plaintiff’s sleep has continued to be severely disrupted since the accident.  He is woken by nightmares of an accident or else by pain, mostly in the left shoulder.  The left shoulder is painful during the day, even when at rest.[25]  The right is also painful, but not usually at rest.  However, the left shoulder is painful most of the time and a constant burden to him. He cannot get rid of the pain.

[25]T125

51      Pre-accident, the plaintiff enjoyed fishing from the riverbank or from the shore.  He went fishing with his children every second fortnight.  He looked forward to taking his grandchildren fishing.  However, mainly because of his injury to his shoulders, which prevents him from being able to cast and hold the rod, he has had to give up fishing since the accident. That was a great disappointment to him, as it was his favourite activity.

52      In re-examination however, the plaintiff said he could not recall the last time he went fishing. It was a long time ago – before the accident.[26]

[26]T129

53      Pre-accident, the plaintiff enjoyed gardening, maintaining a very productive vegetable garden and numerous fruit trees.  He provided fruit and vegetables for family and friends, but had been prevented from gardening activities since the accident.  He was now doing little more than poking about a bit and doing some watering.  He no longer pruned the fruit trees.  He is unable to dig and shovel because of increased pain in his back, neck and shoulders. 

54      Despite his back pain pre-accident, the plaintiff could still manage well in the garden, working within his limitations.  Not being able to keep up the garden since the accident has been extremely disappointing for him.

55      The plaintiff can no longer keep up his furniture-making and carpentry work, which was previously a great source of pride and enjoyment, making furniture for his own house and for his children.  Pre-accident, he did a lot of repair work for his family and friends.  That work was enjoyable and very satisfying, and he would now love to be able to teach his grandchildren these skills. 

56      The plaintiff had a workshop in his garage with equipment and setup, but he was no longer able to use it properly because of the pain in his body, mostly his shoulders, but also his neck and the worsening lower back pain.

57      The plaintiff confirmed that pre-accident, he did not have any problems sleeping, but he now has problems with nightmares and because of pain and discomfort, mainly in his left shoulder.  Lack of sleep results in irritability.

58      Pre-accident, the plaintiff was fully independent around the house, and had to do many of the heavier household chores because his wife had a disability.  He did the washing, hung it up, chopped up her food, and assisted with heavy activities in cooking.  He did the vacuuming and maintained the garden.

59      However, since the accident, the plaintiff has had difficulty doing all those tasks because of pain, particularly in the shoulders, but also the increased pain in his lower back and neck.  He is no longer independent domestically, and he relies on his daughter, son and wife to attend to most household tasks, and on his grandchildren to do the mowing.  Without the assistance from his family, the plaintiff would not be able to stay at home because of his accident-related disability.  He feels a burden on his family.

60      The plaintiff used to be able to manage all the shopping, helping his wife with heavier tasks.  He can no longer lift other than very light shopping, and has to wheel the groceries into the house.

61      Before the accident, the plaintiff took ordinary Panadol and occasionally Panadeine Forte if his back became particularly sore.  However, since the accident, he has had to take Panadol Osteo every day, two in the morning and one at night, and he also takes Panadeine Forte more frequently.  That medication causes constipation, so he limits his intake.  He mainly needs this medication for his left shoulder, which is now his worst injury, followed by his lower back.

62      The plaintiff now also suffers from pins and needles and numbness in his left shoulder, arm and hand, which adds to the discomfort from the pain and also to his misery.

63      In cross examination, the plaintiff was asked about an attendance with Dr Clayton Thomas in mid 2014.  The plaintiff agreed his back was then killing him. It was his worst problem. Dr Thomas told him to come back and see him if he needed. The plaintiff had not gone back to see him because he cannot continue to take the Lyrica Dr Thomas prescribed because of his heart condition. [27]

[27]T115

64      The plaintiff recalled his left shoulder was very painful immediately after the accident, and the other parts of his body were not really as bad, though he felt generally sore and painful.  He deposed that the ambulance report set out that he reported pain in his left shoulder.  The plaintiff’s back and neck became worse later on as he cooled down.

65      The accident happened very suddenly, and the plaintiff found it very frightening.  He thought he was going to be killed.

66      The plaintiff had physiotherapy for some months after the accident, with treatment for his shoulders, neck and lower back.  He bought a home massage machine.

67      In the first couple of years after the accident, both shoulders were painful, but probably the right was worse.  However, gradually the plaintiff’s left had become much worse, and is now his dominant injury.  This pain disturbs his sleep and causes him constant pain when he is awake.

68      Because the plaintiff’s right shoulder had been injured, he cannot use it more.  He finds he is terribly restricted in social, recreational and leisure activities.

69      The plaintiff confirmed he still has problems with the mental stress of the accident, with traumatic nightmares causing sleep problems.

70      The plaintiff submitted he had suffered a serious injury to one or other of his injuries, (left or right shoulder or spine) but particularly his left shoulder. The combination of all the other aches and pains made his left shoulder so much more difficult to cope with, because in attempting to relieve his left shoulder pain, he causes pain in other parts of his body.

Non-accident-related conditions post accident

71      There was lengthy cross-examination about the plaintiff’s other health issues since the accident.

72      The plaintiff explained that the reason he was slow to get into the witness box was his lower back.  His knees are not too bad.[28]

[28]T19

73      The plaintiff disagreed his neck had improved in 2006 as Dr Voon noted. Actually, the situation with his health never improved.[29]

[29]T77

74      The plaintiff has now got pains all through his body: sore elbows, shoulders, hips, feet pain, neck and upper back pain, not really middle lower back pain, but more lower back.[30]

[30]T68

75      The plaintiff had problems with cholesterol, diabetes control, and some dizziness.[31]

[31]T78

76      The plaintiff saw a neurologist at Monash in October 2007 for dizziness.  The plaintiff did not know what caused it. He agreed dizziness started a year and a half after the accident.  

77      Even now, the plaintiff has a problem when he stands up, he does not move.  When praying, sometimes he sort of falls down.[32]  It worries him why he is falling over. When he wakes up, he walks like a drunk to open the curtains and he has to hold onto the bed.  That has happened regularly lately. The plaintiff agreed this problem would make it difficult for him to do things like woodwork or gardening.[33]

[32]T79

[33]T80

78      The plaintiff takes tablets for dizziness but there are side effects and problems with his heart so he does not take them all the time.  He then said he has had this problem with dizziness problems for years, since straight after the accident.[34]

[34]T121

79      The plaintiff told his doctors about his left shoulder when he was seen for unrelated health issues.[35] 

[35]T81

80      The plaintiff’s diabetes is up and down, but he controls it with medication, now taking insulin all the time.[36] 

[36]T85

81      The plaintiff has had problems with his breathing connected to his heart. Dr Tran has treated him in this regard, referring him for open heart surgery.[37] The plaintiff thought he told Dr Tran of his left shoulder condition on examination in December 2007.[38]

[37]T81

[38]T82

82      The plaintiff still has difficulty breathing. If he goes for a walk early in the morning in cold weather, he has problems. There was no chance he could now try to dig in the garden, but that was because of his shoulders.[39]     

[39]T99

83      The plaintiff has ongoing problems with tinnitus in both ears.  Even now, he is like an “ocean”.  From time to time, he can hear well. Other times, his hearing just broke up.[40] This condition annoys the plaintiff a lot.  It makes it difficult for him to go and meet with friends or family.[41]

[40]T82

[41]T111

84      The plaintiff agreed he was depressed in 2008 because of health issues.  He was worried about his lungs, scared of cancer, had back pain for many years and he also had diabetes.[42]

[42]T83

85      The plaintiff has had problems with his bowels and had two colonoscopies and also a gastroscopy.

86      The plaintiff was advised he had a carpal tunnel problem. His blood pressure is all right now.[43]

[43]T83

87      The plaintiff agreed he had medical issues that were affecting many different parts of his body. He denied when he saw Dr Tran on 1 May 2008 for chest pain he told him he was not in pain.[44]

[44]T84

88      The plaintiff has daily problems with his feet related to diabetes. His feet sort of get cold and then hot and are painful.[45]  He cannot walk very much, and has to stop after about a kilometre and lie down.  That is almost every day lately. He agreed that would make it very difficult to even leave the house. His feet problem would stop him doing woodwork and standing in front of a bench. For years, the plaintiff has also had pins and needles in his feet at night.[46]

[45]T86

[46]T87

89      The plaintiff agreed his leg pain was bad enough that he required Panadeine Forte in 2011. In July that year, he told Dr Hunt his feet were very painful, particularly the left, and were keeping him awake at night. This is still the case.  The plaintiff wakes two or three times or more a night because of foot pain.  This was not an exaggeration – “It was 100%.”[47]

[47]T100

90      From time to time, the muscles on the back of the plaintiff’s legs, below the knee go numb. He gets fluid and swelling in his legs. He has to lie down and rest when that happens, and that is a problem for him. The plaintiff agreed this was his main problem when he saw Dr Chan in December last year.[48]

[48]T120

91      The plaintiff cannot drive because of his eyes.[49]  He sees people in the dark, like in a fog.  He had an operation on his eyes three weeks ago.[50]  The plaintiff then said he did not drive much because of his shoulder,[51] however, he agreed he stopped driving because of his eyesight.[52]

[49]T87

[50]T88

[51]T112

[52]T113

92      The plaintiff had cancer in the kidneys in March 2010 and was put in a list for removal of part of his kidneys.  He agreed that was very stressful.[53] 

[53]T89

93      The plaintiff agreed his heart and kidney problems scared him.[54] He agreed he told Dr Thomas since his heart operation he had lost motivation and enthusiasm.[55]

[54]T109

[55]T115

94      The plaintiff could not remember in February 2011 if his left shoulder was not a big problem when he attended Monash Medical Centre for treatment of kidney cancer when told a list of complaints at that time did not include the left shoulder.[56] 

[56]T98

95      The plaintiff has also had a gall bladder infection requiring the removal of his gall bladder in 2013.[57] He had a good result from that surgery and no longer has pain.[58]

[57]T90

[58]T109

96      The plaintiff does not tell doctors who examine him for unrelated conditions that he has got a problem with his left shoulder.[59]

[59]T102

97      The plaintiff has had problems with sleeping due to his snoring. He did not tell Dr Tran he could not sleep because of shoulder pain. Sometimes shoulder pain stops the plaintiff sleeping if he turns on his left side.[60] The plaintiff had treatment for sleep apnoea in 2013.[61]  He had problems using the mask so no longer does so.[62]

[60]T103

[61]T107

[62]T108

98      The plaintiff agreed with all the other problems with the rest of his body, they were so much greater than his shoulder problems that it did not really matter to him whether he could bring a case for his car accident or not. However, the plaintiff denied that was the reason why he did not give Mr Bektas the information he requested in his letters.[63] 

[63]T102

99      The plaintiff agreed that with his diabetes, heart, breathing, foot pain and vision problems he could not go fishing these days, or could not do a whole lot of vegetable growing, could not make furniture, could not chop wood, dig holes in the garden, or do the vacuuming or wash the clothes.[64]

[64]T128

Section 23A application

100     The plaintiff’s evidence in this regard, both in his affidavits and viva voce evidence, was at times contradictory and difficult to understand.

101     In his first affidavit sworn in September 2014, the plaintiff described attending Nowicki Carbone (“Nowickis”) in September 2006 to enquire whether he could take any action in relation to the accident.  The plaintiff saw Mr Sam Bektas, who took instructions and told the plaintiff he would get in contact with him.

102     Despite the fact that the plaintiff contacted Mr Bektas a number of times, and the plaintiff’s daughter made contact with that office, the plaintiff heard nothing until 12 June 2012, when he received a letter from Mr Bektas, who was then practising at Victorian Compensation Lawyers (“VCL”), advising him he was no longer pursuing the plaintiff’s claim.

103     The plaintiff deposed that Mr Bektas did not advise him earlier whether he had any common law rights, or whether he was going to investigate a claim or about any other matters whatsoever.

104     In cross-examination, the plaintiff said Mr Bektas had told him they were going to go ahead, and would continue with his case.[65]

[65]T33

105     The plaintiff thought Mr Bektas was going ahead.[66]  He did not say he was not going to help him.[67]  The plaintiff asked him whether he could do anything for his case and Mr Bektas told him –“Yes no problem.”[68] Mr Bektas said he would go on with the case.[69]

[66]T46

[67]T47

[68]T41

[69]T49

106     The plaintiff deposed that this was the limit of their contact.  Having seen Mr Bektas just once, the plaintiff never saw him again. Mr Bektas never asked him to attend his office, and every time the plaintiff rang to make an appointment, Mr Bektas was either too busy or not available to see him.  The plaintiff, being totally unaware of legal issues, left the matter totally to Mr Bektas, who said he was an expert in the area.

107     The plaintiff had been advised he was now outside the six-year period in which to issue common law proceedings, but he was never advised he had the possibility of seeking common law proceedings or that there was a six-year limit.  He left it all up to Mr Bektas, who spoke his language, and he was totally in his hands as to how to proceed.

108     In his second affidavit, sworn on 29 July 2015, relating solely to the extension of time application, the plaintiff exhibited a letter to him from Mr Bektas of 29 September 2006,[70] enclosing clinical notes and highlighting the plaintiff’s instructions were essential for the proper preparation of his matter for trial. The plaintiff was asked to make written comments on the document and contact Mr Bektas upon receipt.

[70]T130- original tendered

109     The plaintiff confirmed after that letter, Mr Bektas advised him that he was now starting his own firm. Mr Bektas requested that he take the plaintiff’s file over to his new office. The plaintiff was happy to do so.

110     In this affidavit, the plaintiff noted that he consulted Mr Bektas just once, on or about 22 November 2007.  Mr Bektas never asked him to attend his office, and every time the plaintiff rang to enquire about his matter, Mr Bektas’ assistant advised that Mr Bektas was busy or in conference. The plaintiff left the conduct of his claim to Mr Bektas.

111     As the plaintiff was concerned about not being advised of the progress of his claim, he asked his daughter-in‑law, Amira Daic (“Amira”), to contact VCL on his behalf to request an update, which she did on or about 30 January 2012.

112     Amira was advised by Mr Bektas he apparently had concerns regarding the plaintiff’s matter and could not represent him “no win, no fee”.  Exhibited to that affidavit was a letter from Mr Bektas to the plaintiff of 12 June 2012[71] confirming a letter of 14 February 2008 and a telephone conversation between Amira and VCL on 30 January 2012.

[71]T130 – original tendered

113     In the 12 June 2012 letter, Mr Bektas noted having met the plaintiff without charge on 22 November 2007 for an initial screening appointment:

“We advised you of our concerns in relation to your claim and confirmed we did not propose to act for you.

Specifically you will note we were unable to provide you with a written guarantee of your reasonable prospects of success as required for us to proceed with your matter on a no win no fee basis.

We confirm your instructions you lost a contested WorkCover matter in 2000 at the County Court and you were granted a disability support pension on 23 June 1988 due to your longstanding low back condition.

Should you have any queries please feel free to contact this office.”

114     The plaintiff deposed he had now been advised he was outside the six-year period, but he was never advised he had the possibility of seeking common law proceedings or that he had a six-year limit.  He left it all up to Mr Bektas.

115     In his third affidavit, sworn 13 April 2015, the plaintiff deposed that at the initial attendance with Mr Bektas in September 2006, Mr Bektas advised him that he was happy to represent him.

116     Following that initial attendance, the plaintiff was under the impression Mr Bektas would make contact with his treaters to obtain medical information in support of his claim.  That was confirmed by the receipt of the clinical notes enclosed in the 29 September 2006 letter.

117     Mr Bektas took over the plaintiff’s claim from Nowickis in about November 2007; the exact date the plaintiff could not recall.

118     During the time the plaintiff’s claim was handled by Mr Bektas at VCL, the plaintiff conferred with him on one occasion on or about 22 November 2007.  He could not recall the discussion at that time.  The plaintiff was under the impression Mr Bektas would pursue his claim, as he requested he sign a medical authority enabling him to get medical information.

119     As the plaintiff was not receiving regular updates, or any written correspondence, he attempted to contact Mr Bektas by phone numerous times and left many messages for an update in respect of his matter, but never received a call back.

120     The only correspondence was the letter of June 2012.  The plaintiff did not believe he had received a letter of 14 February 2008, referred to in the June 2012 letter, if it was sent.

121     In the February 2008 letter, an update was requested as to the plaintiff’s current treatment, details of his treating doctor and pharmacy and his incapacity for work as well as details of any impending medical appointments. The plaintiff was advised if he had any further queries to contact VCL.

122     The plaintiff was not aware Mr Bektas had declined to act for him.  Had the plaintiff known in 2008 or earlier than 2012 that Mr Bektas refused to act, then the plaintiff would promptly have sought new solicitors. Upon learning that information, the plaintiff assumed everything was being done, and, having engaged one solicitor to act for him, he did not consider needing to see another.

123     The plaintiff cannot remember providing Mr Bektas with any documents.[72] He could not recall providing Mr Bektas with anything.[73]  It was difficult to recall things.[74]

[72]T42-3

[73]T44

[74]T45

124     As the plaintiff was eager to find out about the progress of his claim, he asked Amira to contact Mr Bektas. She left many messages for him to return her call, which he finally did on or about 30 January 2012. Amira was advised by Mr Bektas that he apparently had concerns regarding the plaintiff’s matter and could not represent him on a no win no fee basis.  The plaintiff then sought to obtain a copy of his file, which he received in late 2012.

125     On Amira’s advice, the plaintiff instructed Hymans Solicitors in relation to his claim in or about February 2013.  That firm submitted an impairment benefit claim on or about 17 September 2013, which the plaintiff believed the defendant was able to investigate, assess and resolve without suffering any prejudice through delay in submission of the claim.

126 In his final affidavit of 25 September 2015 the plaintiff sought to correct several errors in his Section 23A application.

127     The plaintiff could in fact recall seeing Mr Bektas twice in 2006, with the second meeting a few weeks after the first.  At that time ,the plaintiff was given no specific or particular advice.  Rather, the attendance was to sign documents.

128     When asked about the 2006 dates, the plaintiff could not remember.[75]  He thought he had seen Mr Bektas twice.[76]

[75]T31

[76]T32

129     The plaintiff had specifically sought out Mr Bektas because he could speak Bosnian. The plaintiff can read simple written English but has difficulty understanding more complex letters, and relies on people like Amira to translate. Whilst it turned out Mr Bektas’ command of Bosnian was not as good as the plaintiff may have liked, they were able to converse reasonably well.

130     When the plaintiff first saw Mr Bektas, the plaintiff consulted a solicitor because he believed he might be entitled to some compensation for his accident injuries.

131     Whilst he earlier deposed he was never advised he had the possibility of seeking common law proceedings for damages, the plaintiff confessed he did not understand the meaning of that term, and did not understand any court processes.  All he sought was to explore his entitlement to his accident injury, and Mr Bektas told him he thought he had a case for compensation.

132     The plaintiff referred to the reference to a consultation on 22 November 2007 in his second affidavit.  Upon reviewing his affidavits with his advisers, the plaintiff recognised that statement was incorrect.  He did not believe he ever saw Mr Bektas after the first two occasions in 2006, and he did not actually ever attend at the VCL offices.

133     The plaintiff did not know how the 22 November 2007 date got in his affidavit.[77]

[77]T35

134     When the plaintiff saw Mr Bektas in 2006 he thought they communicated reasonably well, and he understood Mr Bektas was going to sort out his matter and arrange for some compensation. Mr Bektas said he would take matters on for him, and therefore the plaintiff left them in his hands.  The plaintiff does not understand how the system works, but he thought Mr Bektas would be able to get him some compensation.

135     After a time, the plaintiff wondered why it was taking so long, but he left it to the solicitor. The plaintiff confirmed he then attempted to ring VCL five or six times to see how his matter was going, but Mr Bektas was never available.

136     The plaintiff could not recall the dates when he had tried to get Mr Bektas.  He nearly gave up, because each time he was told he was not available.  The plaintiff agreed it was possible that these efforts all started at the end of 2011 when he was worried about the six years running out.[78]

[78]T40

137     The phone calls were in 2011 or 2012.  The plaintiff could not remember.  Mr Bektas was always busy in 2010.  He did not know whether he called him in 2008 or 2009.[79]

[79]T54

138     Eventually, perhaps in about late 2011, the plaintiff needed someone else’s help, and he asked Amira to contact Mr Bektas’ office, but Mr Bektas was too busy to speak to her.

139     The plaintiff did not know the six years ran out at the end of 2011.[80] He then agreed by the beginning of 2012 he knew he had missed the six-year period.[81]

[80]T38

[81]T47

140     Eventually, the plaintiff received the letter of 12 June 2012 but he did not understand it, and showed it to Amira and asked her to explain it. The contents made him very surprised, as Mr Bektas had initially said he had a case.

141     Amira told the plaintiff she would call Mr Bektas to see what could be done.  She tried to get to speak to him, but could not.  She then located another solicitor.

142     Amira finally got onto Mr Bektas.[82]

[82]T36

143     The plaintiff confirmed she told him she had spoken to Mr Bektas and he said VCL could not do his case.  He could not explain how Amira said the first she knew of any problem with the plaintiff’s claim was the June 2012 letter.[83]

[83]T45

144     Amira has translated documents for the plaintiff.  At times translations were done very quickly.  He was told to sign, and probably that is what happened.  He trusted her.[84] The plaintiff “did not come to court to lie”.[85]

[84]T30

[85]T31

145     Having been shown the letter to him from VCL dated 14 February 2008, the plaintiff was unsure whether he received it, but he probably did.

146     The plaintiff referred to the June 12 2012 letter to him from VCL.

147     The only County Court matter that the plaintiff had about that time, was against Dr Cousins and the La Trobe Hospital in relation to a hernia operation in about 1989.

148     Simon Parsons and Co solicitors acted on his behalf in relation to the medical negligence claim. He attended their offices several times. There was never an interpreter present.

149     The plaintiff has been advised that the court records showed the action against Dr Cousins came on for hearing in February 2002.  The plaintiff could recall he was told to go to Melbourne.  He met a barrister outside the court. The plaintiff did not have an interpreter.  He did not understand what was happening, and had to answer questions as well as he could without an interpreter.

150     The plaintiff then learned the judge had thrown out his case, but the plaintiff did not know why.  The plaintiff was ordered to pay the legal costs of the other parties, of about $11,000. This sum came out of his DSS payments, and then the plaintiff became bankrupt.

151     During that proceeding, the plaintiff did not understand what was going on and he left the case to his solicitors.  He did not gain an understanding that the case had to be commenced within a limited period of time.  He knew he had lost it, but did not understand why.

152     The plaintiff deposed that he now understands that his case in respect of the transport accident should have been commenced within six years.  He did not understand that until meeting with his current lawyers.  He had given his case to Mr Bektas, who spoke his language and was an expert in the field, and trusted in him, and left it in his control.

153     Having had the previous experience of instructing solicitors who did not understand his language, the plaintiff thought it essential to engage a solicitor with whom he could communicate.  Mr Bektas never told the plaintiff he had to start his case within six years, nor did he tell him he could not conduct his case until he sent him the 12 June 2012 letter.

154     The plaintiff was cross examined in relation to his medical negligence claim.

155     Simon Parsons to the plaintiff it was ten years since his injury in the operation.  The plaintiff asked if it was possible to go to court to sue. He was advised by Simon Parsons that it would try.[86]  The plaintiff did not know he needed permission.  He could not remember if he was asked questions about why he had taken so long to bring his court case. He could not remember having to explain the ten years.[87]

[86]T23

[87]T24

156     The medical negligence case, it “went bang, finished.”  The plaintiff really had no idea about the case.  It was possible his lawyers had said “You’re late so we need an extension of time, but we will try.”[88] He could remember them talking to him about the six years.  He agreed he knew the rule was you had six years to bring a case. No one explained to him why he lost the claim against the doctor.  He really did not know himself.[89]

[88]T26

[89]T28

157     When taken to his affidavits, the plaintiff confirmed he knew of the six years. What he was saying in court was the truth.[90]

[90]T27

158     People were talking about six years when the plaintiff had his work injury.[91]  From that, he sort of had an idea he had six years from then to bring his case.[92]

[91]T28

[92]T29

159     The plaintiff confirmed when he had deposed that he did not know about the six years, that was wrong.[93]

[93]T52

160     In re‑examination, the plaintiff explained he thought the six year rule was that you could do the case in six years or after that it was too late. He did not know what had to be done in those six years. He was waiting for his solicitor to fix it all up.[94]

[94]T128

Lay evidence

161     The plaintiff’s daughter-in‑law, Amira Daic, swore an affidavit on 25 September 2015. 

162     Amira confirmed there had been drastic changes in the plaintiff’s condition resulting from the accident, describing his problems with gardening, his inability to do carpentry work for which he was previously skilled, and problems with domestic duties.

163     Before the accident, it appeared the plaintiff’s back was sometimes painful, and he would groan when picking things up.  However, many days he seemed to do well, and engage in activities with no sign of disability.  That situation had changed since the accident. The plaintiff now looks like a much older man and a grossly disabled one.

164     Pre-accident, the plaintiff enjoyed going to the TAB with his mates and them visiting him at home.  The plaintiff is now very anxious as a driver or a passenger and is very reluctant to go in the car. His social life is reduced to almost zero.

165     In about mid to late 2011, the plaintiff asked her to help him progress his claim.  He told her that Mr Bektas had not communicated with him for some years.  She tried to ring the office a number of times, and each time was told that Mr Bektas would ring back, but that had not happened.

166     Both late in 2011 and early 2012, when Ms Daic rang to speak to Mr Bektas, she was told he was too busy but that he would ring back, but he failed to do so.  She was never told by anyone from VCL that it had declined to act for the plaintiff.

167     Ultimately, in about June 2012, the plaintiff showed her a letter, which he asked her to explain, to which the plaintiff responded, “He said there was a case.  How is that possible?”

168     Amira rang VCL and again tried to speak to Mr Bektas but he failed to return her call.  Amira then spoke to another solicitor, Mr di Donato, who agreed to take on the plaintiff’s case.  He explained to her and to the plaintiff that cases had to be commenced within a certain time, and the plaintiff had exceeded that time limit. He therefore needed to apply for an extension of time. Neither she nor the plaintiff had previously been aware of that information.

169     The plaintiff regarded himself as tied to Mr Bektas for so long as he believed he was handling his case.  It was only after the June 2012 letter that she or the plaintiff thought he should seek a second opinion, which they did as promptly as they could.

The Plaintiff’s medical evidence

Treaters

170     Dr Voon from the Medical Centre provided two detailed reports and was also required for cross-examination.

171     Dr Voon first saw the plaintiff on 3 February 2006 in relation to his accident injuries. The plaintiff was earlier seen at the Medical Centre by Dr Ng on 3 January 2006.  It was then noted there was some tenderness of the right lateral aspect of the chest wall.  The plaintiff was placed on Panadol, Tramal and Diclofenac.

172     On subsequent reviews on 5, 9 and 17 January 2006, there was no mention of left shoulder pain in Dr Voon’s report. TAC Medical Certificates were completed on 9 and 17 January 2005 and did not refer to left shoulder pain.   

173     In his reports, Dr Voon summarised the results of investigations and referrals to a number of specialists, including Dr Thomas, Mr Khan and the VRC.

174     Dr Voon noted in 2009 the plaintiff was still complaining of left shoulder pain. An ultrasound showed a tear which likely occurred as a result of the steering wheel spinning in the plaintiff’s hands when he was hit by the other car.

175     Dr Voon noted the plaintiff could not afford a private specialist and was referred to Monash Medical outpatients and was treated conservatively.  Repeat x‑rays and ultrasounds of both shoulders had been ordered.

176     Dr Voon noted, in his September 2013 report, the plaintiff was still complaining of chronic neck and bilateral shoulder pain since the accident and was still having stiffness and soreness of both shoulders at the end ranges of flexion, abduction and also external rotation.  He had chronic neck pain and some residual anxiety with travelling.

177     After the September 2013 x-rays and ultrasound of both shoulders, the plaintiff was referred for a review by Dr Thomas and Mr Tran, orthopaedic surgeon. Mr Tran reviewed the plaintiff in March 2015. He did not feel any surgery was required for either of the plaintiff’s shoulders but suggested he be managed by the chronic pain team headed by Dr Thomas.

178     Dr Voon noted Dr Thomas reviewed the plaintiff in May 2015 and started him on Lyrica.

179     Dr Voon concluded the diagnosis of the plaintiff’s left shoulder injury was a supraspinatus calcific tendinosis tendinopathy 10 x 10-millimetre anterior full thickness tear of the left supraspinatus tendon with chronic regional pain.

180     Dr Voon believed the plaintiff’s accident was a significant contributing factor to his left shoulder injury.  He believed the plaintiff required ongoing treatment for his shoulder in terms of analgesia and he may need ongoing reviews with orthopaedic surgeon, Mr Tran, his pain specialist, Dr Thomas, and physical therapies if his shoulder pain and function worsen in the future.

181     Dr Voon has seen the plaintiff since about 2002.[95]

[95]T136

182     In examination-in-chief, Dr Voon confirmed his view that the left shoulder injury was accident related as the plaintiff had had any problems with his shoulder before the accident.[96] 

[96]T137

183     Dr Voon had no idea about the circumstances of the completion of the TAC claim form having first seen the plaintiff in relation to his accident injuries on 3 February 2006.[97]

[97]T138

184     At an attendance on 4 October 2006, pain in both shoulders was noted. On 6 November, both shoulders were x rayed.[98] 

[98]T139

185     Dr Voon thought the plaintiff’s left shoulder injury had affected his co morbidities.  The chronic pain from the his shoulders, neck and chest wall had affected his ability to function in terms of activities of daily living and looking after himself. He could not  garden or do any housework.

186     Dr Voon thought chronic pain is a significant issue.  Without the chronic pain from his injury, the plaintiff would be able to cope with other illnesses much better than if he had not had the accident which made things a lot worse.[99]

[99]T141

187     In cross-examination, Dr Voon explained he would try to note down the most pressing issues on examination.[100]

[100]T141

188     The absence of references to the left shoulder was because the plaintiff had had bilateral shoulder pain. Early on, the right was sorer, so that was mostly focussed on. That did not exclude the fact that the plaintiff did have left shoulder pain at an early time.[101]  This was confirmed by the referral to Mr Khan and the November 2006 x-rays, although he conceded there was no mention of the left shoulder in Dr Voon’s notes before October 2006.[102]

[101]T142

[102]T149

189     Dr Voon knew the plaintiff had bilateral shoulder pain and it had only started after the accident.  Even if it was not noted, left shoulder pain was present with the first visits.[103] 

[103]T143

190     Dr Voon agreed he would have arranged investigations of the plaintiff’s left shoulder problems if they were severe. On the attendance before the ultrasound, there was a note of discomfort and restriction of movement.[104]

[104]T161

191     Whilst Dr Voon did not organise an ultrasound until June 2009, the plaintiff was having bilateral shoulder pain, worse in the right, before the ultrasound. 

192     The ultrasound was organised in 2009 because that was when the plaintiff said his shoulder was most sore.[105] Dr Voon agreed in 2009 that funding for further treatment of the left shoulder was then not sought from the defendant. 

[105]T160

193     Dr Voon remembered the plaintiff mentioning bilateral shoulder pain.[106]  He then said he had no memory of the plaintiff complaining of left shoulder problems except for the referral to Mr Khan.  Dr Voon stressed that he is impartial and was trying to be as honest as he could in giving his evidence.[107]

[106]T150

[107]T152

194     Dr Voon agreed degeneration can be symptomatic but also asymptomatic. It could be exacerbated by trauma.[108]  He agreed trauma was not required for a degenerative shoulder to progress into a painful condition. However, Dr Voon then mentioned the steering wheel spinning quite dramatically in the accident and that is what the plaintiff described when they were looking at his left shoulder in 2009.[109] 

[108]T153

[109]T154

195     Dr Voon explained a jerking action can be a reason why the shoulder would become symptomatic and progress after trauma.  The onset of symptoms would not necessarily be expected within months but probably that would be the case.  Then he went on to say, degeneration is not a cause of a tendon tear. He denied that elderly people could have that finding in the absence of trauma.[110]  Dr Voon explained that it is not the tear that is causing the functional problem, it is the inflammation that is causing pain.[111] 

[110]T155

[111]T156

196     Dr Voon agreed the plaintiff was not complaining of functional issues with his left shoulder between 2006 and 2009.[112]  He thought it is a possibility someone might not be able to lift their arm above 90 degrees if they had a tear. There is a possibility you can have a tear without even knowing it. 

[112]T157

197     Whilst there has been no other cause for the tear outside the accident, Dr Voon agreed it was possible to have a tear without trauma.[113] If there was a tear, you would not necessarily expect immediate pain; it is definitely a possibility.[114]

[113]T158

[114]T159

198     Dr Voon agreed the plaintiff was the best judge of what restrictions he has during the day by virtue of his shoulder, neck, legs, heart, diabetes and chest.[115]

[115]T163

199     In re-examination, Dr Voon explained for a rib fracture, significant force would be required.[116]

[116]T163

200     Dr Voon confirmed he referred the plaintiff to Mr Khan because of bilateral shoulder complaints. Various doctor have mentioned the plaintiff’s left shoulder.[117] 

[117]T164

201     Dr Voon believed the most likely cause of the tear was the steering wheel spinning. Further, at a later time, the plaintiff complained of worse problem with his left shoulder than his right because he had been overusing his left arm because of his right shoulder pain.[118]

[118]T165

202     In a VRC orthopaedic initial assessment report of August 2006, it was noted the plaintiff’s injuries and other diagnoses were neck and bilateral shoulder pain, right greater than left, and right sided low back buttock pain.  The summary of problems included neck and shoulder pain and right sided low back and buttock pain.

Medico-legal examiners

203     The plaintiff was examined by orthopaedic surgeon, Mr Peter Kudelka, in September 2013.

204     The plaintiff told Mr Kudelka of the accident and a diagnosis at Frankston Hospital of bruised neck, back, shoulders and chest.

205     The plaintiff described present symptoms as pain and stiffness in the neck, pain and weakness of both shoulders, particularly the left, which the plaintiff said was significantly affected by the accident as he twisted while wearing his seat belt across his shoulders.

206     Mr Kudelka noted the plaintiff’s general health was fairly good but he had had half his kidney removed for cancer in 2009 and had a full cardiac bypass.  He had also had hernia surgery.  He was a diabetic on tablets and insulin.  He took blood pressure and cholesterol tablets and noted deterioration of his vision over the years.

207     Mr Kudelka thought that in the accident the plaintiff aggravated age related degenerative changes in the lumbar and cervical spine.  He suffered a supraspinatus tear of the left shoulder, aggravation of bilateral degenerative osteophytic changes of the AC joint and aggravation of pre-existing age related degenerative changes in the lumbar spine.

208     Mr Kudelka thought the injuries had stabilised and self-managed exercise program and medication was appropriate in the future.  He assessed the plaintiff’s whole person impairment at 28%.

209     In a supplementary report, Mr Kudelka attributed 50 per cent of the neck, back and shoulders impairment to the accident and the remainder to the plaintiff’s age.

210     Dr David Elder, consultant in the specialty of occupational and environmental medicine, examined the plaintiff on the defendant’s behalf in July 2014.

211     The plaintiff then confirmed he had had ongoing neck pain giving rise to headaches and left shoulder pain arising out of the accident. 

212     On examination, there was no wasting around the left shoulder and no crepitus.  The range of motion was diminished to below shoulder height and other movements were also restricted.  Rotator cuff functioning was collapsing and giving way.

213     Dr Elder accepted the plaintiff suffered mechanical neck pain with no clinical evidence of a radiculopathy and independent left shoulder dysfunction arising out of the accident.

214     Dr Elder did not comment on any investigations of the left shoulder in his report.

215     Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in March 2015.

216     On examination of the left shoulder, there was no muscle wasting. Movements were restricted.

217     The history was, following the accident, the plaintiff had continued to suffer from neck, shoulder and back pain which resulted in immobility. The plaintiff complained of ongoing left shoulder pain with reduced mobility. His back pain limited his ability to bend.

218     The plaintiff told Mr Kossmann that had no musculoskeletal symptoms of any note prior to the accident.

219     Mr Kossmann noted the plaintiff used to enjoy gardening and fishing and was no longer able to do so.  He had difficulty with the housework.  He was previously a carpenter and now struggled with this activity. 

220     Having been provided with all investigations to date, Mr Kossmann diagnosed pain and movement restrictions of the left shoulder on the basis of tendinosis/ tendinopathy of the supraspinatus tendon and rotator cuff tear and an exacerbation of degenerative changes in the neck and back.

221     Mr Kossmann found a temporal relationship to the onset of shoulder symptoms with the accident.  He thought conservative care was appropriate and that the plaintiff’s condition had stabilised. He considered the plaintiff’s condition would gradually deteriorate.

Investigations

222     On 6 November 2006, Mr Khan organised x-rays of both shoulders.  There was no evidence of significant osteoarthritic change in either glenohumeral joint. Degenerative changes were present in both AC joints with some material of calcific density noted to overlay the superior margin of each AC joint. 

223     On nuclear bone scan, there was a mild moderate increase in activity present at the region of both AC joints consistent with the degenerative changes seen on x rays.  There was a slight increase in activity present in the anterolateral aspect on the right fifth and sixth ribs, most likely due to the previous rib trauma. 

224     There was an MRI scan of the cervical spine in December 2006.  There was no spinal canal or neural exit foraminal stenosis seen.

225     On 4 June 2009, there was an ultrasound of the left shoulder which showed a full thickness tear of the mid and anterior insertion of the supraspinatus measuring 9 x 11 millimetres. 

226     There was an x ray and ultrasound of both shoulders in September 2013.  It was reported there was bilateral supraspinatus calcific tendinosis/tendinopathy.  There was 10 x 10-millimetre anterior full thickness tear of the left supraspinatus tendon and no tear on the right.

The Defendant’s lay evidence

227 Simone Leith, the defendant’s solicitor, swore an affidavit on 6 August 2015 in relation to the Section 23A application. Ms Leith set out the following chronology of relevant events.

228     A claim for compensation was submitted on 23 January 2006.

229     In August of that year, the defendant was notified by Nowickis they were acting on the plaintiff’s behalf.

230     Funding for physiotherapy ceased from 25 August 2006 and from 1 May 2007, general practitioner visits were no longer funded.

231     The defendant received letters from VCL dated 7 December 2007 and 6 March 2008 requesting further documentation.  No further communication was received from the plaintiff until a letter dated 6 March 2013 from Hymans Lawyers advising they were acting on the plaintiff’s behalf.

232     The next correspondence was 17 September 2013 when Hymans requested an impairment assessment. A serious injury certificate was requested by letter of 2 June 2014.  There was a denial by letter dated 5 August 2014.

233     An Originating Motion was issued on 2 September 2014 and amended on 5 May 2015 to include a 23A claim.

234 The claim is now barred pursuant to s5(1) of the Limitation of Actions Act 1958.

235     The plaintiff was represented by two law firms from 2006 to 2008 and neither requested a serious injury certificate.

236     The plaintiff was aware of the six years, having instructed solicitors in relation to a claim in the matter of Daic v Cousens & Anor, where leave was granted to make an application pursuant to s23A by order of 24 September 2009.

237     The Court Connect printout had been obtained although attempts to locate the file had been unsuccessful.[119]

[119]Records indicate Judge Duckett dismissed the Section 23 A application on 14 February 2000

238     Michelle Castle is a lump-sum coordinator employed by the defendant.

239     In her affidavit sworn 20 October 2015, Ms Castle set out that on 8 November 2013, she received a letter from the plaintiff’s solicitors with a report from Mr Peter Kudelka of 17 September 2013 allocating an impairment rating for the plaintiff’s left shoulder.

240     Despite Ms Castle’s concerns regarding causation, to expedite the plaintiff’s impairment claim, she accepted Mr Kudelka’s left shoulder rating, detailing such acceptance in a letter of 30 April 2014 referring to a whole person impairment determination of 21 per cent.

241     In her coordinator’s comments, Ms Castle set out as follows:

“I am prepared to accept the assessments, however note that the client made little complaint regarding the left shoulder until 2009 so there may be a possible causation issue.”

242     In her letter of 30 April 2014, Ms Castle advised as follows:

“Our preference is that we are able to reach agreement about your client’s level of impairment and that is provided for in the protocols of release as signed by your client.  If your client does not sign the enclosed release the TAC may elect to arrange their own assessments.”

243     Ms Castle also noted:

“Although we have not yet completed determination we propose to finalise your client’s level of impairment based on the reports listed at 21 per cent as detailed on the enclosed assessment and calculation sheet.”

The Defendant’s medical evidence

244     In a TAC medical certificate of 9 January 2006, completed by Dr Ng, the plaintiff’s injuries and conditions noted were:  “right lateral chest wall pain, subsequently confirmed on investigations.

245     In a TAC certificate of 17 January 2006, Dr Ng’s current clinical diagnosis was “5th right rib fracture.”

246     In November 2006, Mr Khan thanked Dr Voon for the referring the plaintiff whom he noted suffered from diabetes mellitus, hypertension and hyperthyroidism and had polyps in his colon.

247     Mr Khan noted the accident and that the plaintiff had headaches, pain the back of his neck, the top of his right shoulder blade, with some pain in the right side of his chest wall below the axilla.  Movements of the cervical spine were reasonably good and the plaintiff did not have any sign of acromion impingement in his shoulders and he could move his shoulders satisfactorily. 

248     In the VRC Allied Health discharge report dated 3 October 2006, it was noted the plaintiff had a car accident, developed neck, right shoulder, rib and back pain.  The plaintiff attended three sessions of occupational therapy.  He reported to be independent in personal care and managed the domestic tasks including gardening and driving. In sessions he indicated most of his concerns were psychological and intimacy based.  It was noted the plaintiff was retired, managed home duties and was a carer for his wife.

249     Mr Khan wrote to Dr Thomas in February 2007, noting the plaintiff’s injury to the right side of chest with fractured right rib.

250     Mr Khan advised the plaintiff complained of neck and right shoulder pain with some limitation in the shoulder, mainly on internal rotation.  He had an ache in the front of the sternum and had pain in his right thigh.

251     Mr Khan could not detect any neurological symptoms in the upper or lower limbs. He noted the bone scan revealed increased activity in the acromioclavicular joint confirming degenerative changes shown on plain x-ray.  He sought Dr Thomas’s opinion and assessment with reference to any future rehabilitation.

252     Dr Thomas wrote to Mr Khan in March 2007, stating the plaintiff’s primary problem had been right sided upper limb pain and neck pain. 

253     On examination, the plaintiff’s shoulder movements were identical on both sides but the right was more painful to move but did not appear to be a scapular type problem. 

254     Dr Thomas advised that the right upper limb was more likely to be myofascial than representing some form of discogenic aetiology. He would encourage the plaintiff to continue with exercises and did not think long term use of anti inflammatories would be in the plaintiff’s best interest.

255     Dr Voon wrote to Monash Medical Neurosurgical Outpatients in June 2007 thanking them for seeing the plaintiff who had lower back pain and got both right and left right sided sciatica. It was noted in the history of medical conditions that the plaintiff had a car accident with neck, right shoulder and back sprain.

256     Counsel for the defendant provided a folder of “sample documents from the GPs clinical file.” Given its size, I do no propose to summarise the contents of the folder and will refer only to the notes raised during the hearing.

257     That folder contained numerous clinical notes dating from 21 February 2005 to 23 March 2015 relating to the plaintiff’s attendances with a number of medical practitioners for a wide range of medical conditions, unrelated to his left shoulder. The plaintiff was cross examined in relation to a number of these entries.

258     The folder also included details of the plaintiff’s recent treatment from Dr Thomas and Dr Tran in 2014. No medical reports from these practitioners were relied upon by the plaintiff.

259     In his letter to Dr Voon dated 25 March 2014, Mr Tran thanked him for the referral noting the plaintiff presented with right shoulder and neck pain. He did not examine the plaintiff’s left shoulder. Mr Tran advised he did not think the plaintiff needed any surgical treatment to his shoulders and thought the plaintiff had other issues that needed to be addressed by pain management with Dr Thomas.

260     When Dr Thomas last saw the plaintiff in July 2014, he reported to Mr Tran that Lyrica was beneficial for the plaintiff. He still had a lot of depressive symptoms and Dr Thomas commenced him on Pristiq.

261     Dr Thomas noted that form the pain point of view the plaintiff seems to be coping and at that stage, he had not scheduled a review.

Medico-legal

262     The plaintiff was examined by Dr Boys, consultant orthopaedic surgeon, in June 2015.

263     The plaintiff told him of a seat belt injury to the chest and bilateral shoulder pain at the time of the accident, perhaps more so on the right. He related over time, increasing difficulties with left shoulder pain.

264     The plaintiff described chronic central low back pain initiating a disability support pension in 1987.

265     Subsequent to the accident, the plaintiff had treated hypertension, hypothyroidism, insulin dependent diabetes, with cataracts colonic polyps and osteoarthrosis of the knee.  He had undergone a cholecystectomy and also coronary artery bypass grafting in 2013.  His general practitioner had also assessed probable bilateral carpal tunnel syndrome.

266     In addition to central basicervical neck pain, the plaintiff complained of anterior left shoulder pain with painful movement.

267     On examination, there was limitation of left shoulder movement and no localised muscle wasting. Provocative tests for impingement induced discomfort on the left.

268     Dr Boys noted the plaintiff had a history which suggested musculoligamentous strain of the cervical spine and right shoulder and scapular region occurring as a consequence of the accident. 

269     The plaintiff had subsequently described bilateral shoulder symptoms with radiological evidence of calcific tendinopathy of both shoulders.  Most recently, there had been deterioration of function in the left shoulder with radiological evidence of an associated tear of the rotator cuff.

270     Dr Boys thought musculoligamentous injury to the cervical spine and right scapulothoracic musculature would be consistent with the accident.  He considered the plaintiff currently experiences disability referable to the left shoulder reflecting the effects of degenerative tendinopathy of the left rotator cuff.  He suffered a chronic calcific tendinosis at that articulation and had of recent years suffered a degenerate tear of the left supraspinatus tendon.

271     There was left rotator cuff disease shown by the limited movement.

272     Dr Boys noted the plaintiff relayed limitations of left shoulder use at home and his general activity was low commensurate with age and associated co morbidity. 

273     In a supplementary report, Dr Boys advised the accident was non contributory to the plaintiff’s left rotator cuff tear noted in 2013.  He could see no current indication for total shoulder replacement as possibly foreshadowed by Mr Kossmann.

274     Dr Boys concluded, given the plaintiff’s age, hypertension, diabetes, cataracts, osteoarthritis of the knees and coronary bypass surgery, it is reasonable to consider that co morbidities affect his capacity to perform recreational activities such as fishing and would limit his physical capacity for heavy gardening activities.

275     Having been shown Mr Kossmann’s report, the most recent report of Dr Voon and Mr Kudelka’s reports, Dr Boys did not change his view.

Court documents – Case No. CI-99-01619

276 The plaintiff’s application pursuant to s23A in relation to his medical negligence application against Dr Cousens and Anor was dismissed by Judge Duckett on 14 February 2000.

Overview

277     The first issue for determination in this application is causation - Did the plaintiff suffer a left shoulder injury in the accident?

278     Counsel for the defendant submitted that the plaintiff had not suffered a left shoulder injury in the accident. It was disputed that there was an onset of left shoulder pain following the accident[120] and that most early documents do not refer to a discrete left shoulder injury.[121]

[120]T13

[121]T184

279     The defendant relied on the following documents where no mention was made of a left shoulder injury-

(a) the TAC certificates signed by Dr Ng dated 3 and 17 January 2006;

(b) the ambulance report[122];

(c) the Rosebud Hospital notes;

(d) the VRC discharge summary dated 4 December 2006 (neck, right shoulder, rib and back pain).

[122]The plaintiff having deposed that report did contain such a reference, it was conceded by his counsel that this was not in fact the case T 126

280     It was submitted that there was no evidence about the circumstances of the completion of the claim form signed on 23 January 2006 which did include reference to the left shoulder.

281     Further, there was no mention of a left shoulder injury in Dr Voon’s notes under 4 October 2006. It was submitted in these circumstances, Dr Voon’s evidence linking a left shoulder injury with the accident was a reconstruction.[123]

[123]T185

282     Whilst an impairment benefit was paid to the plaintiff for injury to both shoulders and spine, the payment was made notwithstanding the defendant’s concerns as to the causation of the left shoulder injury set out in the “Impairment Assessment Comments Sheet” completed by Ms Castle on 30 April 2014.  

283     The plaintiff maintains however that he has suffered left shoulder pain since the accident, his right shoulder being his main complaint in the early days thereafter.

284     Consistent with this evidence is the VRC Initial Assessment report dated 7 August 2006 which includes in the plaintiff’s injuries “bilateral shoulder pain, right greater than left.”

285     Whilst the circumstances of the completion of the claim form are unclear, the form includes a separate, specific reference to a left shoulder injury and was signed by the plaintiff within a month of the accident.  Liability was accepted for the claim and payments were made for physiotherapy until August 2006 and for general practitioner visits until May 2007.

286     Dr Voon’s note of the attendance on 4 October 2006 set out that the plaintiff would like to get an opinion about his neck and shoulders from Mr Khan. That referral was made and Mr Khan organised x rays of both shoulders in November 2006. These investigations showed degenerative changes in both shoulders.

287     Although all medico legals accept the plaintiff’s left shoulder injury is accident related,[124] they did so on a history from the plaintiff of ongoing significant complaint of left shoulder pain post accident.

[124]T204

288     On balance, whilst I accept the plaintiff did injure his left shoulder in the accident, given the lack of significant early left shoulder complaints, I am not satisfied the tear shown on ultrasound in 2009 is accident related.

289     Dr Boys was of this view given the relatively late onset of left shoulder complaint. Whilst Dr Voon endeavoured to assist the plaintiff when giving his evidence, he conceded that whilst the onset of symptoms from a tear would not necessarily be expected within months of trauma, probably that would be the case.[125]

[125]T155

Credit

290     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[126]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[126](2010) 31 VR 1 at paragraph [12]

291     Counsel for the plaintiff conceded the plaintiff was not a reliable witness but within his limits, he was truthful.  There were various inconsistencies and he was not able to give satisfactory histories as to a number of matters. However, it was not disputed that the accident happened and he was injured. 

292     In my view however, the plaintiff was not a truthful witness.

293     On a number of occasions, the plaintiff deposed to having no knowledge of the six year limitation period yet in cross examination conceded he was aware of it and had been since the work injury in the 1980s.

294     There was no explanation whatsoever of these inconsistencies in relation to such an important issue.

295     Similarly, the plaintiff gave vastly different versions of what had been discussed with Mr Bektas on the first attendance in September 2006.

296     In my view, the plaintiff repeatedly attempted to down play, both in his affidavits and viva voce evidence, significant ongoing problems he has had with his back since the work injury which forced him to leave the workforce and apply successfully for a disability pensions, attempting to attribute ongoing problems predominantly to his left shoulder.

297     Further, when seen by Mr Kossmann earlier this year, the plaintiff denied any history of musculokeletal disorder.

298     It also became apparent during extensive cross examination that since the accident, the plaintiff has suffered from a wide range of serious medical conditions. Save for a brief reference to heart surgery in 2013, the plaintiff’s affidavits were silent as to these other medical conditions and their consequences. The plaintiff simply focussed on his left shoulder injury as the source of his complaints.

Pain

299     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[127]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”

[127](2010) 31 VR 1 at paragraph [11]

300     The plaintiff claims since the accident, on an increasing basis, he has experienced left shoulder pain, even at rest. He also describes pins and needles in his left arm and a restriction of left shoulder movement.

301     The plaintiff has described his condition to medico legal examiners in these terms.

302     Whilst I accept that the plaintiff may suffer some left shoulder pain and discomfort and associated restriction of movement, given my views as to the unreliability of his evidence, I do not consider that any problems he may have are at the level he describes.

303     It is also relevant when considering any claimed left sided restrictions, that the plaintiff is right hand dominant.

Treatment

304     Whether the accident-related injury be soft tissue or a tear following the accident, the plaintiff has not required any significant treatment in relation thereto.

305     Dr Voon did not think it was necessary, post the November 2006 x-rays ordered by Mr Khan, to arrange further investigations of the plaintiff’s left shoulder until the June 2009 ultrasound.  During that time, Dr Voon agreed the plaintiff was not complaining of functional issues with his left shoulder.[128]

[128]T125

306     When he examined the plaintiff’s shoulders in November 2006, Mr Khan did not find any evidence of subacromial impingement and the plaintiff could move his shoulders satisfactorily.[129]  In his February 2007 referral letter to Dr Thomas, Mr Khan mentioned the plaintiff had complained of pain in the neck and right shoulder area only.

[129]T186

307     Dr Thomas, when responding to Mr Khan by letter of 21 March 2007, having recently seen the plaintiff, noted his primary problem had been right-sided upper limb and neck pain. Shoulder movements were identical on both sides but the right was more painful to move.

308     In his referral to Monash Neurologoical Outpatients dated 6 June 2007,  Dr Voon noted the presenting problem at that time was essentially spinal pain.[130] Under “Medical Conditions,” he noted “MVA Dec 2005 Neck right shoulder and back sprain”.

[130]T187

309     There is then no mention of any left shoulder complaint until the plaintiff attended Dr Voon in June 2009. Dr Voon then noted there was left shoulder discomfort and restriction of movement. He ordered the ultrasound undertaken on 4 June 2009, which was reported to show a full thickness tear of the mid and anterior insertion of the supraspinatus measuring 9 x 11 millimetres. 

310     The plaintiff himself did not know how long after the accident the ultrasound took place, stating it could have been a couple of months or a couple of years.[131]

[131]T75

311     Following the ultrasound, the plaintiff was referred to the Orthopaedic Outpatients at Monash for management of the tear, as he was unable to afford a private specialist. There was no reference in that referral letter to the accident. Dr Voon noted that the plaintiff’s left shoulder was then causing him much pain and decreased function.

312     Whilst Dr Voon noted the plaintiff’s left shoulder condition on many occasions thereafter in his clinical notes, most references were to the investigations carried out in 2009 and 2013. Before the September 2013 ultrasound, which confirmed the tear shown in 2009, Dr Voon noted that investigation was to be undertaken as the plaintiff was suffering from chronic bilateral shoulder pain.

313     Since 2013, Dr Voon has noted chronic left shoulder neck pain in correspondence to practitioners treating the plaintiff for non-accident related conditions.

314     Treatment after 2009 has been physiotherapy (noted in Dr Voon’s report but there is no report from that treater).

315     Following the 2013 investigations, Dr Voon noted the plaintiff was referred to Mr Tran and Dr Thomas. The plaintiff did not rely on reports from either practitioner.

316     Correspondence from those practitioners tendered by the defendant and referred to previously in this judgment, confirmed Mr Tran concentrated mainly on the plaintiff’s right shoulder when he last examined him in March 2014. He then advised that the plaintiff did not require surgery for either shoulder and that pain management was appropriate with Dr Thomas.

317     The plaintiff was discharged from Dr Thomas’ care in mid 2014.  At that time, Dr Thomas thought the plaintiff seemed to be coping with his pain.

318     There is no evidence of any further treatment since that time save for Dr Voon’s care. 

Medication

319     I am not satisfied the plaintiff takes any significant medication for his left shoulder condition alone.

320     Pre accident, the plaintiff was taking Panadol and occasionally Panadeine Forte if his back became particularly sore.  Since the accident, he has had to take Panadol Osteo every day, two in the morning and one at night, and he also takes Panadeine Forte more frequently.

321     I do not accept the plaintiff mainly needs this medication for his left shoulder, which he claims is now his worst injury, followed by his lower back.

322     It is apparent from Dr Thomas’ notes that the plaintiff has been prescribed other medications such as Pristiq and Lyrica which the plaintiff has not mentioned directly. Further, the plaintiff also takes medication for his dizziness, diabetes, hypertension and hypercholesterolaemia.

Other consequences

323     In his final affidavit, the plaintiff deposed to having suffered a serious injury to his left shoulder, right shoulder and spine, yet the application relates to his left shoulder alone.

324     The plaintiff continues to suffer from a number of other significant medical conditions unrelated to the accident.

325     In summary, his main problems are back pain since the work injury, dizziness, breathlessness, tinnitus, diabetes and related foot pain, sleep disorder and problems with vision.  He also has pain in his elbows and hips.  Further, at times, he has suffered from depression related to other health issues such as cancer and kidney disease.

326     Whilst the plaintiff claims his left shoulder pain affects his ability to undertake a range of activities and enjoy his daily life, these unrelated conditions, on his own admission in cross-examination, interfere with his ability to undertake daily activities.

327     In Peak Engineering & Anor v McKenzie,[132] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[132][2014] VSCA 67

328     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[133]

[133]At 1

329     I am therefore bound to identify, and exclude, the continuing consequences for the plaintiff of the various unrelated conditions and consider whether the consequences referable to the left shoulder injury are “serious”.[134]

[134]At 2

330     The plaintiff’s back pain has been significant since the work injury, forcing him to cease work in 1987, aged forty-six.  He has been unable to undertake any physical work thereafter.

331     The plaintiff’s dizziness is sufficient is sufficient to stop his activities.[135] Breathing had also caused problems with other activities,[136] and tinnitus making socialising difficult.

[135]T171

[136]T172

332     Whilst at times he maintained he could not drive because of left shoulder pain, the plaintiff conceded he was unable to drive because of vision problems. From the plaintiff’s own description, his vision problems are significant on a daily basis.

333     In my view, any problems sleeping due to left shoulder pain are far outweighed by the plaintiff’s sleep apnoea and his considerable foot pain  during the night.

334     The plaintiff’s problems with his feet are significant and require medication.  As a result, he has difficulty standing for prolonged periods.[137]  There are also very significant leg pains.[138] 

[137]T173

[138]T176

335     Heart and kidney problems have caused the plaintiff concern.  He confirmed, as Dr Thomas noted, he was lethargic following heart surgery and had lost motivation.

336     The plaintiff claims he is unable to go fishing, do the garden, and undertake furniture repairs and woodwork and do heavier housework because of his left shoulder pain.

337     However, the plaintiff’s ability to undertake these activities is significantly affected by his chronic back pain, feet problems, breathlessness, lack of vision and leg pain.[139]

[139]T179

338     As the plaintiff conceded, with his heart, breathing, foot pain and vision problems, he could not go fishing, make furniture, chop wood, dig holes in the garden, vacuum or clean.[140]

[140]T128

339     I do not accept the submission that the plaintiff would be able to engage in these activities if not for pain in his left shoulder - his non dominant arm.[141]

[141]T208

340     The plaintiff does not say he cannot cope with these co morbidities because of his shoulder pain, as Dr Voon tried to suggest.[142] 

[142]T179

341     The plaintiff’s daughter’s evidence corroborating his evidence as to the consequences of his left shoulder injury, whilst unchallenged, makes no  reference to any of the other significant health problems from which the plaintiff has suffered since the accident.[143]

[143]T180

342     Taking into account all the evidence, I do not accept that there are separate issues in terms of the pain and disability for the left shoulder that meet the Peak test.[144]

[144]T212

343     Taking into account all the evidence, excluding the consequences of non related health conditions, I am not satisfied that any consequences referable the left shoulder are “serious”.

344     Accordingly, the application is dismissed.

Section 23A application

345 I also propose to consider the application pursuant to s23A to extend the period of time in which to bring proceedings related to the accident.

346     The limitation period expired on 31 December 2011.

Legal principles

347     The relevant legal principles relating to an application for an extension of time were set out by the High Court in Brisbane South Regional Health Authority v Taylor.[145]

[145][1996] 186 CLR 541

348     When considering an application of this nature, the Court should properly start with the proposition the public interest is served by proceedings being commenced within the period provided for by the legislature, and the proceedings brought outside that time limit are contrary to public interest.[146]

[146](Supra) per McHugh J at 551-555

349 An exercise of the Court’s discretion involves the factors set out in s23A:

(a)   the length of and reasons for 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 action;

(e)   the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant;

(f)    the steps, if any, taken to obtain medical or legal advice and the nature of any such advice received.

What is the Plaintiff’s explanation for the delay?

350     In his four affidavits, the plaintiff blamed the delay on the inactivity of his solicitor, Mr Bektas, upon whom he relied upon to look after his legal entitlements in relation to the accident.

351     The plaintiff claimed Mr Bektas did little in relation to the claim, between first taking instructions in September 2006 and advising the plaintiff he was ceasing to act by letter of June 2012. During that time, he did not advise the plaintiff of a six-year limitation period.

352     The plaintiff deposed that until he engaged his present solicitors, he was not aware of the limitation period relating to his accident claim.

353     However, the plaintiff conceded in cross-examination he in fact knew of the six year limitation period, having become aware of it at the time of his work injury.

354 This concession was not surprising given the plaintiff brought an unsuccessful s23A application in relation to a medical negligence action relating to hernia surgery in the 1990s.

355     I accept the submission the plaintiff’s evidence cannot be accepted as to his explanation for the delay.  There are inconsistencies in each of the affidavits and, then again, with his viva voce evidence.

356     Having consistently denied being aware of the six-year period when referring to that issue in the four affidavits, the plaintiff, in the witness box, conceded he has known of the six years since as early as the time he had a back injury.

357     There are also inconsistencies in the plaintiff’s evidence as to what letters he received and what, if anything, he did in response.

358     The plaintiff attended Nowickis, once, maybe twice, in September 2006.

359     What happened at the first attendance is unclear. The plaintiff initially deposed Mr Bektas gave him no advice as to his common law rights and did not discuss whether he was going to take on his case.

360     In his second affidavit, the plaintiff deposed Mr Bektas proceeded to take instructions from him.  The plaintiff confirmed in his viva voce evidence that Mr Bektas had advised him he was going ahead with his claim.

361     The plaintiff has never provided Mr Bektas with any documentation or material despite a request by Nowickis by letter dated 29 September 2006, enclosing clinical notes and highlighting the plaintiff’s instructions were essential for the proper preparation of his matter for trial.  In that letter, the plaintiff was asked  to make written comments on the document and contact Mr Bektas upon receipt.

362     It seems the plaintiff attended the offices of VCL after Mr Bektas moved to that firm, having received the plaintiff’s instructions to transfer his file to that firm. A screening appointment on 22 November 2007 was noted in VCL’s letter to the plaintiff of 12 June 2012. However, the plaintiff having deposed to attending on that occasion later denied this was the case.

363     The June 2012 letter also referred to a letter of 14 February 2008. The plaintiff was unsure whether he had received it. In that February 2008 letter, the plaintiff was requested to provide details of his current treatment, treating doctor and pharmacy and his incapacity for work as well as details of any impending medical appointments. He was advised if he had any further queries to contact VCL.

364     The plaintiff did not respond to this letter.

365     Whilst he said he threw out letters from Mr Bektas, the plaintiff actually had kept them.[147]

[147]T209

366     The letter indicates Mr Bektas intended to pursue a claim on the plaintiff’s behalf.

367     The plaintiff maintains he left the conduct of his claim to his solicitors. However he became concerned why it was taking so long and a number of occasions called VCL but there was no response to his calls. Perhaps in late 2011, he asked his daughter in law, Amira to assist him. Her phone messages left with VCL also did not receive a response.

368     In his third affidavit, the plaintiff deposed Amira was advised by Mr Bektas that he could not represent the plaintiff. In his final affidavit, the plaintiff deposed he became aware this was the case on receipt of the letter from VCL dated 12 June 2012.

369     Amira deposed she became aware of this situation when the plaintiff showed her the June 2012 letter.

370     Counsel for the plaintiff submitted the plaintiff should not be held responsible for the inaction of his solicitors.[148]

[148]T211; Millard v State of Victoria (2006) VSCA 29

371     However, although there does not appear to have been much done by Mr Bektas at either firm, the plaintiff’s conduct has to be assessed and, depending on the circumstances of the efforts made, leaving a matter with solicitors may or may not be an adequate explanation for the delay.[149]

[149]Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 13 and Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614

372     It might be if the plaintiff’s evidence is accepted in this case as to Mr Bektas’ inactivity and failure to respond to numerous telephone calls and requests for a conference, there is likely to be such a cause of action available.[150]

[150]Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [26]

373     However, in my view, the plaintiff showed little interest in his claim, not providing any material requested by Mr Bektas. As counsel for the defendant submitted the plaintiff cannot sit back and do nothing for years, not responding or cooperating.[151]

[151]T197

374     I accept that the plaintiff did not attempt to contact Mr Bektas until around the time the limitation period expired. This situation was consistent with a person who had simply decided not to pursue a claim and not with someone who was relying on his solicitor to do it on his behalf.

375     Perhaps an explanation is, as the plaintiff accepted momentarily,[152] the other medical ailments from which he suffered, and continues to suffer, were so much greater than his shoulder that the potential claim for a transport accident injury did not really matter to him.

[152]T102

376     This is not a case of lack of knowledge on the plaintiff’s part of the limitation period. He knew of the time limits and did nothing before the expiration.

377     There were then additional delays with the engagement of the plaintiff’s new solicitors, Hymans. That firm wrote to the defendant on 6 March 2013 advising it was acting on the plaintiff’s behalf. The next correspondence from that firm was by letter dated 17 September 2013 requesting an impairment assessment. A serious injury certificate was requested by letter dated 2 June 2014. This request was denied by letter from the defendant dated 5 August 2014.

378     On 2 September 2014, this Originating Motion was filed. It was amended on 5 May 2015 adding the Section 23 A application.

379     In terms of prejudice, counsel for the defendant submitted the case may well proceed as an assessment and there would be difficulty disentangling what is accident related and what is related to the plaintiff’s other health issues.

380     There is also the issue of causation in the left shoulder, with the defendant denying that the plaintiff suffered a left shoulder injury in the accident.

381     It was submitted it would now be more difficult to challenge the plaintiff’s evidence as to the onset of his symptoms or to investigate the source of to whom he allegedly made a complaint.  A stark example is the completion of the Transport Accident Commission form.

382     Counsel for the plaintiff made only one brief comment as to prejudice.  He submitted, had the claim been brought within time, various witnesses may have had the same difficulty with their memory as they would have at the time the matter is ultimately heard.[153]  However, as Counsel for the defendant responded, it is not an answer for a plaintiff to say that whatever prejudice there may be, it would also have existed had the proceeding commenced within time.[154]

[153]T211

[154]T214; Brisbane South Regional Health Authority v Taylor (supra) per Toohey and Gummow at 548-549

383     In my view, in light of the plaintiff’s unsatisfactory evidence generally, his knowledge of the limitation period, the delay which appears to have resulted more from his inactivity and lack of interest in his case than his solicitors and to a lesser extent, the risk of both general and specific prejudice, the plaintiff has not established that it is just and reasonable to extend the limitation period.[155]

[155]Bell v SPC Ltd (1989) VR 170 at 174-5

384     Accordingly, this application is also dismissed.

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