Devenish v Mattiacci (Ruling)
[2021] VCC 1416
•8 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-19-05264
| KEVEN DEVENISH | Plaintiff |
| v | |
| MICHAEL MATTIACCI | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2021 (via Zoom) | |
DATE OF RULING: | 8 November 2021 | |
CASE MAY BE CITED AS: | Devenish v Mattiacci (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1416 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury – application to bring claim for common law damages out of time – substantial delay in bringing claim – prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958 (Vic) s23A
Cases Cited:Tsiadis v Patterson (2001) 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Van Gervin v Amaca Pty Ltd [2012] VSC 131
Ruling: Order extending the period of limitation to the cause of action set out in the plaintiff’s statement of claim against the defendant to 6 November 2019
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr M Nightingale | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr A Moulds QC with Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1This is an application for an extension of time in respect to a common law proceeding for damages brought by the plaintiff, Mr Keven Devenish. The accident circumstances are a quintessential example of a collision at a busy intersection involving a car and a motorcycle.
2Between approximately 8.15am to 8.30am on 4 May 2000, the plaintiff was riding his motorcycle in a northerly direction along busy Punt Road, Windsor. At that time a car driven by the defendant, Mr Michael Mattiacci, was travelling in the opposite direction. A collision (“the collision”) then occurred at the intersection of Punt Road and Union Street (“the intersection”) when the plaintiff rode his motorbike through the intersection, only to collide with the left passenger side of the defendant’s car as it was turning right into Union Street.
3The plaintiff claims that the collision caused him to suffer injury to the left knee, injury to the left wrist and an emotional reaction.[1] In the common law proceeding he claims damages for pecuniary and non-pecuniary loss.
[1] Plaintiff’s statement of claim dated 6 November 2019 Plaintiff’s Court Book (“PCB”) 5-10
4The plaintiff did not take any steps to obtain legal advice regarding the collision until over sixteen years had passed, which is obviously well after the expiration of the relevant six-year limitation period. He eventually commenced legal proceedings – after navigating the “serious injury” requirements – approximately nineteen years after the collision. He has now made an application pursuant to s23A of the Limitation of Actions Act 1958 (“LAA”) to extend time. The defendant opposes the application and says that due to the passage of time he has suffered both general and specific prejudice, such that a fair trial is now no longer available to him.
5The defendant opposes the extension of time in part because he says there is a real contest as to the circumstances of the collision, as follows. The plaintiff alleges that he had a green traffic control signal and was lawfully riding through the intersection. He asserts that the defendant failed to give way to his motorcycle and turned into the path of it. The defendant disputes that the plaintiff had a green light and says he is “99% certain” the plaintiff entered the intersection on a red light. He says the plaintiff was lane splitting, travelling too fast and that it was the plaintiff who failed to give way and was the cause of the collision.
6The defendant says that specific prejudice arises due to the passage of time. His memory is now imperfect regarding the weather conditions at the time of the collision. Relevant witnesses are either now unable to be located, or now have no memory of the collision, such that he is unable to corroborate his version of events. In addition, he is unable to properly investigate the extent of injury suffered by the plaintiff due to the collision, especially in respect to a claimed left wrist injury, as opposed to injury the plaintiff has suffered due to unrelated events in his life.
7The issue for determination in this ruling is whether time should be extended.
A timeline of relevant dates and events
8The following dates and events are not in dispute.
9The collision occurred on 4 May 2000.
10The plaintiff completed a claim for compensation under the Transport Accident Act 1986 (“the Act”) by claim form on 17 May 2000.[2]
[2] Defendant’s Court Book (“DCB”) 29
11By letter dated 23 May 2000, the Transport Accident Commission (“TAC”) accepted the plaintiff’s claim under the Act for medical expenses.[3]
[3] DCB 41
12By further letter dated 23 May 2000 the plaintiff’s claim for loss of earnings benefits was rejected by TAC because the plaintiff was unlicenced at the time of the collision and by reason of various provisions of the Act.[4]
[4] DCB 43
13The plaintiff then lodged a Worker’s Claim for Compensation seeking benefits pursuant to the Accident Compensation Act 1985 by claim form dated 26 May 2000.[5]
[5] DCB 44
14The limitation period expired on 4 May 2006.
15The plaintiff first sought legal advice about the collision when he spoke to Mr Lawrence Dent (“Dent”), a solicitor at Arnold Thomas & Becker (“ATB”), by phone on 9 September 2016. In that phone call he was told by Dent that he was out of time. He was also told that as he was injured in a transport accident he would need to prove “serious injury” before proceedings could be issued for damages.
16By letter dated 2 November 2016, Dent wrote to the TAC advising that he acted for the plaintiff and requested an impairment assessment pursuant to s46A and 47(7) of the Act and a determination of “serious injury” pursuant to s93 of the Act.[6]
[6] DCB 50
17A “serious injury” process was then commenced, culminating in the grant of a “serious injury certificate” by the TAC on 11 October 2019.[7]
[7] PCB 66
18The common law proceeding was commenced on 6 November 2019.
19The defence was filed on 14 January 2020, which formally raised as an issue that the plaintiff’s claim was brought out of time and was statute barred.
20The TAC engaged an investigator to take a statement from the defendant. He was interviewed and provided a signed statement dated 16 March 2020.[8] He had not previously been asked to provide a formal statement regarding the collision.
[8] DCB 94
21By summons dated 17 March 2020 the plaintiff sought the leave of the Court to extend time.
Relevant legislation
22The relevant legislation and legal principles are not in dispute.[9]
[9]Tsiadis v Patterson (2001) 4 VR 114
23Subsection 5(1)(a) of the LAA is relevant and provides as follows:
“(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
(a)Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty”.
24Section 23A of the LAA provides as follows:
“ Personal injuries
(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
...”
Legal principles
25Before turning to consider the evidence and the circumstances of this application, it is convenient to mention the applicable legal principles.
26The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to his common law proceeding.
27In determining whether the plaintiff has discharged his onus I am required to take into account all of the circumstances of the case, and to synthesise all of the matters required to be taken into account by s23A(3) of the LAA.
28An important issue that arises is whether the defendant is now able to get a fair trial. The relevant test is whether the defendant is able to have a fair trial, not a perfect one. As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2):[10]
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted”.
[10] [2020] VSC 639 at paragraph 204
29The discretion to extend a limitation period should be exercised in the context of the rationale for the existence of the limitation period. In an often-cited passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[11] His Honour said that:
“First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them”.
[11] (1996) 139 ALR 1
30It is relevant that the legislation considered in Brisbane South is quite different to s23A of the LAA,[12] but, as has been noted, the rationale as to which McHugh J referred in Brisbane South underpinned and informed the legislative purpose of provisions which impose limitation periods, and those giving the Court the power to extend time. The subject matter of those provisions is the lapse of time and the effect of delay on the quality of justice.[13]
[12] Tsiadis v Patterson (2001) 4 VR 114 per Buchanan JA at paragraph 31
[13] Van Gervin v Amaca Pty Ltd [2012] VSC 131 per Beach J at paragraph 46
31While sometimes the deterioration in the quality of justice is palpable, on other occasions prejudice may exist without the parties or anybody else realising that it exists. What has been forgotten can rarely be shown.
32The parties agree that the approach to be taken to the resolution of this application it is as set out by Buchanan JA in Tsiadis, where His Honour said:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
‘The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’ ”
Evidence
33The plaintiff relies on the affidavit, together with relevant exhibits, sworn by him on 15 April 2020.[14] In addition he relies on two affidavits from Dent, and relevant exhibits, sworn 26 May 2020[15] and 29 June 2020.[16] The relevant exhibits include medical reports and reports of radiology. Pausing, I do not intend to refer to the Dent affidavits in any detail, as they largely set out procedural and administrative facts that are not in dispute
[14] PCB 18
[15] PCB 46
[16] PCB 271
34The defendant relies on an affidavit of Ms Belinda Celi (“the Celi affidavit”), solicitor, sworn 18 May 2020,[17] together with relevant exhibits. In addition, the defendant relies on an affidavit he swore on 15 September 2021.[18] Finally, the defendant relies upon selected medical records as tendered from the Department of Justice and Alfred Health.[19]
[17] DCB 6
[18] DCB 196
[19] DCB 205
35The proceeding otherwise was conducted in the “usual manner” namely: that the plaintiff’s evidence-in-chief was largely confined to his affidavit, and he was then cross-examined and re‑examined as to the contents of the affidavit and other material. I have taken into account the transcript of the plaintiff’s oral evidence, as well as the documentary evidence and the submissions made by the parties. I shall refer to that material to the extent necessary in this ruling.
The Plaintiff’s affidavit evidence
36Turning firstly to the evidence contained in the plaintiff’s affidavit. Broadly, the affidavit sets out the plaintiff’s personal background, events leading up to the collision and events thereafter.
37In respect to the collision, the plaintiff said in his affidavit:
“The transport accident, the subject of this proceeding, occurred on or about Thursday 4 May 2000 at about 8.15 a.m. It occurred at or near the intersection of Punt Road and Union Street, Windsor in the State of Victoria. I was travelling along Punt Road in a northerly direction. It was raining and road conditions were wet. The traffic was very busy. The traffic travelling north in Punt Road had a green light applicable to it at the intersection with Union Street. As I approached the intersection I slowed my speed and entered the intersection facing a green light. I proceeded past stationary motor vehicles travelling in my direction. After I was in the intersection a motor vehicle driven by the Defendant, which was travelling in a southerly direction in Punt Road, suddenly executed a right hand turn in the path of the motorcycle ridden by me.
As a result of the collision I was thrown up into the air and struck my head against the passenger window of the Defendant’s vehicle. This is my last memory until I recall laying on my back on the roadway and being told by people not to move. It seemed like an eternity before the ambulance arrived and I received some first aid treatment and was then taken to the Alfred Hospital. I suffered injuries to my head, nose, spine, knees, left arm and left wrist as well as generalised bruising, abrasions and pain.”[20]
[20]PCB 19ꟷ20
38There is no dispute that in the collision the plaintiff suffered a left knee injury described as an osteochondral fracture. He was referred to the orthopaedic surgeon Mr Russell Miller[21] and underwent left knee arthroscopy several weeks after the accident. Thereafter he made a reasonably good recovery from the left knee injury. He also suffered a left fractured distal radius. The injury to the wrist was treated with plaster immobilisation. The plaintiff claims he made a good recovery from the left wrist injury until he had a deterioration in symptoms in approximately September 2016. He attended the hand surgeon Mr Peter Maloney on 8 September 2016, [22] who has treated him including by way of repeat surgery, including a left total wrist fusion. On any view, the left wrist is the major ongoing physical problem and cause of impairment to the plaintiff.
[21] PCB 241
[22] PCB 233
39As at the collision, the plaintiff was working as a courier. He had something of a troubled life as a younger man, including periods when he was imprisoned. While imprisoned, he obtained skills as a cook/chef. He returned to work after the collision, until the left wrist became a problem for him, as set out in his affidavit as:
“At the time of my transport accident I was performing a short stint as a courier. I obtained my work from Phantom Couriers and in order to enable me to obtain that work I was required to take out my own ABN. I did that and only obtained a little (sic) work. Following my return to work after my injuries, which was within about 6 months, I returned to chef work.
Up until September 2016 there had been some occasions when I would notice pain when performing my work as a chef and on limited occasions I would use a wrist brace. I put this down to an RSI type condition which was not uncommon amongst chefs. In or around September 2016 I was starting to notice more pain and then, during horseplay with my wife, I suffered a kick to my left wrist as a result of which I developed increased pain and some swelling. This continued for a short time and I attended my general practitioner, Dr Dewani, at the Forest Hill Medical & Dental Clinic. He arranged for x-rays and then referred me to Mr Peter Moloney, specialist hand surgeon. I believe I first saw him on about 8 September 2016. He arranged for me to undergo a CT scan and following that scan, when reviewed by Mr Moloney, he recommended that I undergo a total wrist fusion, although he had real concerns as to what affect this may have on the career of a chef.
My employment as a chef had ceased a short time prior to me seeing Mr Moloney as a result of the problem I was having with my left wrist. Before undertaking the fusion operation Mr Moloney recommended that I try to have a denervation procedure. As a preliminary to that Mr Moloney performed a block-off of the nerves at the wrist to see if denervation would be a possible treatment. The attempted block-off of the nerves which was performed in September 2016, made no difference to my symptoms. It was then decided that I should undergo the left total wrist fusion. Approval was sought from the TAG and liability for that surgery was ultimately accepted by the TAC. I underwent the surgery on 8 March 2017.”[23]
[23]PCB 22ꟷ23
40He then sets out in his affidavit his ongoing problems following the initial surgery to his left wrist. It was the ongoing problems with his left wrist and inability to work that caused him to seek legal advice from ATB. In his affidavit, he explained that sequence of events:
“From September 2016 I have had a long period of treatment to my left wrist, including three operations. I have little wrist movement and I suffer constant pain in the wrist which is worse in cold weather. My wrist is much weaker and I have difficulty with gripping and grasping and manipulative functions. It was not until about September 2016, when my symptoms deteriorated, and I was advised by Mr Moloney in September 2016 as to the nature of my wrist injury, that I understood the serious nature and extent of my wrist injury. Prior to this, although I had had some pain from time to time, there had been no significant or long-lasting problems and I was able to pursue my career as a chef uninterrupted. It was at this time I realised the gravity of the nature of my injury.
At about this time I took notice of advertisements on the television for solicitors. I emailed a couple of solicitors firms including Arnold Thomas & Becker. I got a response from Arnold Thomas & Becker and I was contacted by one of their solicitors, Mr Larry Dent. Mr Dent has since become my solicitor and I first saw him on or about 2 November 2016.”[24]
[24]PCB 25
41The affidavit next sets out some of the relevant history after he first attended ATB.
42Next, the Dent affidavits set out correspondence and interactions with TAC, in respect to both in its capacity as the provider of statutory benefits and also in its capacity as the insurer of the defendant in the common law proceeding. None of that is really in dispute. Relevantly, from November 2016, the plaintiff had attended Dent who had put the TAC/the defendant on notice that the plaintiff was seeking a “serious injury” determination. It is not suggested that he did not act reasonably or promptly once he had retained solicitors.
The Plaintiff’s oral evidence
43In evidence-in-chief, the plaintiff clarified his affidavit evidence in respect to previous motorcycle accidents. The plaintiff clarified that he in fact had been involved in a water-skiing accident in 1996.[25]
[25]Transcript (“T”) 12, Lines (“L”) 3ꟷ6
44The plaintiff was then cross-examined, commencing with the water-skiing accident. He was questioned about what injury was suffered by him in the water-skiing accident. He had always known about the water-skiing accident and accepted that it had not been included in his affidavit. In respect to injury arising out of the water-skiing accident and the omission of it from his affidavit, he was asked:
Q:“Okay. Have you had information provided to you in recent times that this water-skiing accident occurred?‑‑‑
A:No, I’ve always known about the water-skiing accident.
Q:So you have always known that you had a water-skiing accident where you injured your left elbow and wrist; is that right?‑‑‑
A:More my elbow than my wrist.
Q:Yes. And you say, effectively, you are mistakenly left that out of your affidavit?‑‑‑
A:Yes, that is correct.
Q:All right. Well, I put to you that you knew about it and you left it out because you thought it wouldn’t help your case; what do you say about that?‑‑‑
A:No.”[26]
[26]T13, L17ꟷ27
45Next, he was questioned about periods in prison, and that he was on parole and charged with breach of parole when the water-skiing accident occurred. He was then robustly cross examined about the circumstances of the water-skiing accident, the force involved, injuries suffered and treatment required.[27]
[27]T15, L13ꟷT20, L7
46The detailed, but appropriate cross-examination regarding the water-skiing accident was to suggest the plaintiff had injured his left wrist in that accident, which he denied. That becomes relevant in respect to the defendant’s submission that it cannot now properly investigate any left-wrist injury suffered by the plaintiff before the collision and disentangle the consequences of such (alleged) injury from the compensable injury suffered in the collision.
47There was further cross-examination about clinical records and problems the plaintiff may have had with his left wrist before the collision, but it is unnecessary to set it out in detail, but I have taken note of it.
48Next, the plaintiff was questioned about his release from prison at the end of 1999 and his return to work. He said that he obtained self-employment as a courier and was working of an evening as a chef.[28]
[28]T23, L24
49Turning next to the day of the collision, the plaintiff said he was working as a courier. The collision occurred at approximately 8.15am or 8.30am. He was on his way to his first job for the day. At this stage of the cross-examination, the plaintiff was taken to his TAC claim form[29] and his answer to the question on that form requiring him to “Please describe how the accident happened”, to which he answered:
“I DON’T REMBER (SIC)
I BLACKED OUT”.
[29]DCB 29
50About that answer, he was asked:
Q:“Sorry, that ‑ thank you. What did you say there?‑‑‑I’ve written ‘I don’t remember, I blacked out’.
Q: Was that the truth?‑‑‑
A: At the time, yes.
Q:So when you fill this form out you did not remember how the accident happened?‑‑‑
A:No.
Q:Well, has it come back to you somehow, has it, Mr Devenish?‑‑‑
A:I received concussion at the time and I’ve remembered more as the years have gone on.
Q:So it’s come back to you as the years have gone on, has it, these details that you’ve given Mr Dent and you’ve sworn to in April last year?‑‑‑
A:Yes.
Q:The colour of the lights when you entered the intersection has come back to you at what time? Was that early in the peace or just recently?‑‑‑
A:No, that was early in the peace.”[30] (sic)
[30]T25, L22ꟷT26, L5
51The plaintiff confirmed he was unlicensed at the time of the collision. He was taken to his answer on his TAC claim form, where he indicated that police action was not going to be undertaken. That was contrasted with what he had apparently told Dent, as set out in Dent’s affidavit, about police involvement. He explained that “after the accident everything was still under investigation and as far as I knew there was no action being taken. It wasn’t till after, about a month later I received a court order and I think the defendant did as well”.[31]
[31]T26, L23 ꟷ27
52The plaintiff accepted that when he completed the TAC claim form on 17 May 2020, he did not remember what had happened in the accident, and he was unaware whether police action was going to be taken.[32]
[32]T27
53Next, the plaintiff was questioned about the collision occurring on his way to work. He was asked about putting in a WorkCover claim after his TAC claim was partially rejected because his licence was suspended. He was taken to that part of the WorkCover claim form that asked for a description as to what had happened to cause the injury and his answer “water on the road and poor visibility as it was raining heavily” and asked:
Q:“And you then say, amongst other things, if you go to p44, the bottom right‑hand corner, ‘Describe what happened to cause the injury and mention contributing factors’ and you say, ‘Water on the road and poor visibility as it was raining heavy’. Again, is that because you couldn’t remember how the accident happened that you gave that description?‑‑‑
A:That was the description of the road when the accident happened.
Q:No, but you ‑ look, it would have been the easiest thing in the world if you remembered it at the time, wouldn’t it, Mr Devenish, or if it is what happened, for you to say, ‘I was on a motorbike travelling straight through an intersection and the other driver turned right straight in my path’. If that was the truth, why wouldn’t you have said that?‑‑‑
A:Unsure what you mean.
Q:Are you? All right. You were asked to describe what happened to cause the injury?‑‑‑
A:Yes.
Q:And you say there was water on the road and poor visibility; you don’t say anything about how someone turned right across your path, do you?‑‑‑
A:No.
Q:Because you didn’t remember it at that time or that’s not what happened or you decided not to say it; can you explain to His Honour why you gave that answer?‑‑‑
A:I don’t know why I’ve written that exactly.
Q:And you say there have you had ‑ the next question, ‘Have you had any previous pain or disability in the area of your present injury or condition?’, you say ‘No’; do you see that?‑‑‑
A:Yes.
Q:But in May 2000 ‑ it’s difficult to put this properly ‑ I suggest to you that in May 2000 you would have been well aware that you’d had problems with your wrist from time to time since this water-skiing accident. Now, you may or may not be able to answer that but it needs to be put to you. Are you able to answer that proposition?‑‑‑
A:I remember injuries to my elbow, I don’t actually remember any injuries to my wrist.
Q:Okay. I want to take you to the next page, if I may, p45, the left‑hand column. It says, ‘Were you in the workplace at the time the injury occurred?’ You said, ‘Yes’. What did you mean by that, you were on the bike or ‑ ‑ ‑?‑‑‑
A:I was on my bike on the way to pick up the first drop ‑ the first parcel to be dropped.
Q:And it says, ‘Was a motor vehicle involved? ‘Yes.’ ‘If yes was the accident reported to the police?’ ‘Yes.’ ‘Did the injury or condition involving a motor vehicle happen in the course of work?’, and you say ‘Yes’, ‘and not during an authorised recess?’ Now, what I want to put to you is that’s the direct opposite of what you told TAC when you filled out the form, that you weren’t at work and that you were on the way to work; do you understand what’s being put to you?‑‑‑
A:I understand, yes. I am still confused by, like at the time I was not a hundred per cent.
Q:Well, I suggest to you that upon the TAC claim being rejected because your licence was suspended for your loss of earnings, you decided to make a WorkCover claim and tell them that you were at work; do you understand that ‑ that’s what’s being put to you?‑‑‑
A:Yep. At the time I was told by the employer who was Phantom Courier if I’m on the bike on the way to pick up a job I can class it as work.
Q:Say that ‑ someone said if you are on the bike you can class it as work; you were told that, were you?‑‑‑
A:By Phantom Couriers. They were the ‑ in the (indistinct) work ‑ ‑ ‑
Q:Yes?‑‑‑
A:There were the people that subcontracted out.
Q:Yes. And down the bottom you say, ‘Employee injured while performing normal work duties’. Can you just scroll down a bit, sorry ‑ your employer comments. (To witness) That’s your comment about yourself, isn’t it?‑‑‑
A:Yes.
Q: I’ll take you to the next form which is associated with that form and was filled out by you as the employer on 26 May, and I’ll take you to your signature on that day in a minute. Then right‑hand column ‑ sorry, p45 ‑ 46 ‑ halfway down ‑ thank you ‑ there’s a box there, ‘How did the injury or condition occur?’ Could that be cursored if it’s possible? Thank you. Do you see that cursor, Mr Devenish?‑‑‑
A: Yes.
Q: ‘How did the injury/condition occur?’, e.g. hand caught in a machine, and you said, ‘On the road riding, wet road and poor visibility’. Again, are you saying you did not remember at the time how this accident happened as at 26 May?‑‑‑
A: Well, I ‑ at the time it was not understood fully how ‑ to answer the question.”[33]
[33]T30, L26ꟷT33, L15
54It was suggested that he knew all the circumstances of the collision, but just did not want to go into detail on his WorkCover claim form. He denied that, and said he did not understand all the questions properly.[34]
[34]T33, L13ꟷ15
55The plaintiff was next cross-examined about witnesses to the collision and the Police Collision Report.[35] In particular, he was cross-examined about the police collision report depicting that both he and the defendant had an amber light when the collision occurred and whether that prompted his memory about what happened in the collision. He said:
Q: “…
A:I remember riding through the traffic, heavy weather, all traffic built up. I saw the ‑ I remember it as a green light, I went through the intersection between the cars, and saw a car in front of me and thought crap, it’s going to hurt.
Q:Yes, I can imagine that. All right, you’ve not attempted to contact any of those witnesses?‑‑‑
A:No.”[36]
[35]T35
[36]T36, L1ꟷ7
56The cross-examination then focussed on what the plaintiff said in his affidavit. He was asked about having intermittent left wrist pain from the time of the accident through until September 2016. He accepted that he had intermittent pain in that period. He was asked whether the collision had been a contributing factor to that pain and he said “Yes”.[37] He was then directed to his affidavit and asked questions about the treatment to his left wrist immediately after the accident and about symptoms he had in the left wrist before September 2016, culminating in the defendant putting to him that:
Q:So you were, I suggest, you were well aware that the problems ‑ that you had a belief, at least, that the problems you had in your wrist and knee whatever they may have been, were related to this accident in 2000?‑‑‑
A:Yes.
Q:You were having problems with your wrist sufficient for you to use a wrist brace in the course of your work as a chef?‑‑‑
A:Yes.
Q:And you sought no legal advice at all until ‑ after you’d seen Mr Maloney?‑‑‑
A:No, none at all.”[38]
[37]T37, L5
[38]T37, L15ꟷT39, L7
57The plaintiff was next cross-examined about the history given to the doctors he had seen for medico-legal purposes.
58Finally, in cross-examination, he was asked whether he would contradict the defendant’s evidence that he (the defendant) never heard a word from the police after the collision. He said he could not contradict that.
59The plaintiff was then re-examined. He said he had been intermittently wearing a wrist brace while working as a chef after the collision. Every couple of months he would have an issue with his wrist.[39]
[39]T42
60He confirmed that he lost consciousness in the collision. He had a memory of lying on the ground and people above him. He was asked about his evidence during cross-examination that his memory of the collision had come back to him:
Q: “Over about what period of time did the memory come back to you?‑‑‑
A: It come back to me over a couple of years.”[40]
[40]T43, L3ꟷ4
61He was re-examined about the injury suffered in the water-skiing accident. He said it was a high-force accident and he suffered injury to his elbow.
The Defendant’s evidence
62The defendant swore an affidavit on 15 September 2021[41], which adopted a statement (“the statement”) he had provided to an insurance investigator on 16 March 2020.
[41] DCB 196
63It is convenient by setting out the defendant’s evidence in the statement. He said he was driving a 1989 Ford Falcon sedan. He sets out the condition of his car, his state of health and his intention to travel to work on the morning of the collision. Relevantly, he said in that statement that “The weather was fine and the roads were dry. It was daytime and the visibility was clear”.[42]
[42]DCB 201
64The defendant then sets out in the statement his version of the collision, which I take into account but relevantly he said as follows:
“21.The Traffic conditions heading south along Punt Road were congested at this time and north along Punt Road were congested at this time.
…
26.I was travelling in the right turn only lane and my intentions were to turn right onto Union Street.
27.I had a green light, I entered into the intersection and stopped in the middle of the road to give way to vehicles travelling north.
28.I waited as there was significant traffic. I couldn’t possibly go until the lights were to change so I just waited. Soon after, the light turned amber and I prepared to take off but didn’t yet accelerate. When the light turned red, I observed two cars travelling north slowing to stop at the red signal.
29.The cars were either completely stopped or very close to stopping. I had a clear run to go. I commenced my right turn and that’s when suddenly, a motorcycle had gone around the two cars on the eastern side of the road between the sidewalk and the car in lane one travelling north.
30.I am 99% sure he ran the red light. He was travelling at significant speed and went through the intersection. He hit me with significant impact into my front passenger door. The front of my car was very close to being out of Punt Road and into the east bound lane of Union Street.
31.The front of his motorcycle crunched head on into my car and then fell sideways. I don’t recall on which side he fell. At the point of impact, I would have travelled barely 4 to 5 meters being stationary so my speed would have been less then [sic] 10 kmh.
32.I immediately stopped my car and got out. I went over to the rider and a crowd had approached. The rider was wearing a closed face helmet but I don’t recall what clothes he was wearing.
33.He was lying on the ground on either his back or side. He was rolling around in pain. He was a male, approximately in his 30’s but I don’t recall what he looked like or his name.
34.When I approached him, he was conscious. I asked if he was OK or something to that effect. There were a lot of people around and everyone was asking if he was OK.
35.I don’t recall what he said. I don’t recall what injuries he sustained but I remember he was banged up.
36.He never stood up. The people in the area were already on the phone calling emergency services.
37.I don’t recall who came first but Police and Ambulance were in attendance. The ambulance treated the motorcycle rider and took him to hospital.
38.I spoke with the police and I explained everything that happened to them. He told me the rider had been hurt and police would need to determine who was at fault. He said if I was found to be at fault, I would be charged. They told me I wasn’t obliged to say anything but I told them everything anyway. They said they will do an investigation and let me know if I was at fault.
39.They didn’t give me any infringements. My car was still drivable so they let me go after that. I never heard from the police after that and was never charged. Based on what the police had told me, it led me to believe I was not deemed to be at fault.”[43]
[43]DCB 201–203 inclusive
65The photos referred to in the statement are included in the investigator’s report, exhibited to the Celi affidavit. It is convenient to include a photograph at this point[44], which shows damage to the front left passenger door of the defendant’s vehicle, consistent with performing a right hand turn through the intersection at the time he was struck by the plaintiff’s motorcycle.
[44] DCB 71
66The defendant had drawn a diagram of the intersection and the collision when he gave the statement[45] and it is reproduced below.
[45]DCB 101
67In his affidavit, the defendant swore that he believed the statement was still true and correct. But he clarified one aspect of the statement as follows:
“3.It has been pointed out to me that the police report and the plaintiff both allege that at the time of the transport accident, the weather was poor, it was raining at the time and the road surface was wet.
4.I am really scratching my memory about this. I don’t recall getting out of my motor vehicle and it being raining. All I can do is say what I am trying to remember.”[46]
[46]DCB 196-197
The evidence of witnesses
68The Celi affidavit sets out attempts to obtain statements from identified witnesses. The Victoria Police Collision Report[47] identified the following witnesses:
(i)Pierre Charbonnier
(ii)Daniel Grundmann
(iii)Rod Graham.
[47]DCB 51
69In the Celi affidavit, it is set out how those witnesses were identified and what, if any, contact has been able to be made with witnesses and relevant statements/evidence obtained from them.[48] There is no challenge to that evidence and unnecessary to set it out in full but in summary, Mr Charbonnier has been located. His evidence is that he did not witness the actual collision. He can give some limited evidence as to the aftermath but no direct evidence on the primary issue of who was at fault. Mr Grundmann has been contacted. He has no recollection of the collision. Mr Graham is unable to be located.
[48]DCB 11, paragraph 27 – DCB 15, paragraph 4
The Plaintiff’s pre-existing medical condition
70As should be clear, the defendant challenged the plaintiff as to his background history, especially about the possibility of a left wrist injury from the water-skiing accident. The Celi affidavit records the attempts to obtain relevant medical records,[49] and again it is unnecessary to record that evidence in detail. The defendant noted that the plaintiff cannot recall the hospital at which he was initially treated after the water-skiing accident. Some medical records from practitioners who it is agreed treated the plaintiff, such as Mr Miller and Koonara Private Hospital are no longer available. Medical records relevant to the plaintiff prior to the collision are also missing or unavailable and relevant practitioners have not been identified.
[49]DCB 16-24 (inclusive)
The medical evidence
71As mentioned, in the common law proceeding the plaintiff claims to have suffered injury to the left knee and left wrist in the collision, together with a consequential psychiatric response. Following the collision, he was taken by Ambulance to the Alfred Hospital.[50] He was then referred to Mr Russell Miller, orthopaedic surgeon. Mr Miller recorded an osteochondral fracture of the left knee for which surgery was required and a left fractured distal radius (wrist) which had been fixed with plaster.[51] The plaintiff went on to have arthroscopic surgery to the left knee and made a good recovery from that injury.
[50] Affidavit of plaintiff PCB 20
[51] PCB 241
72Pausing, the Dent affidavit sets out that relevant clinical records from The Alfred Hospital and the Forrest Hill Medical & Dental Centre – a General Practice the plaintiff attended after the collision – have been obtained and exchanged.[52]
[52] PCB 51
73The next significant medical intervention occurred in September 2016, when the plaintiff developed significant left wrist pain and required specialist referral. He was referred by his General Practitioner, Dr Riaz Dewani, to the hand surgeon Mr Peter Maloney.
74Mr Maloney provided a medical report dated 13 November 2019.[53] That report sums up the referral and treatment provided. Mr Maloney recorded a history as follows:
“I first reviewed Mr Keven Devenish on 8th September 2016. He was referred to me from his general practitioner Dr Riaz Dewani because of ongoing pain in his right wrist on a background of previous motor bike accidents in 1996 and 2000.
His most recent incident that he described was an unfortunate simple injury to his left wrist. When he presented on this day, he was wearing an elastic supportive strap around his left wrist which enable him to undertake some activities including working as a chef. When I reviewed him, he was currently working at a restaurant in the Melbourne CBD. An accident at work had been sustained, a de tipping of his left middle finger tip as a result of ongoing pain and weakness.”
[53]PCB 233
75Pausing, Mr Maloney did not obtain a history of the water-skiing accident, although he did obtain a history of two previous motor bike accidents.
76Mr Maloney then sets out the treatment he provided for the left wrist injury. He describes an initial CT scan as demonstrating “the widespread nature of his osteoarthritic changes”. He records the plaintiff undergoing a total left wrist fusion on 8 March 2017 and then further surgery on 1 November 2017 to remove the plate and screws. There was then further review and cortisone injections, culminating in further surgery to excise the trapezoid of the left wrist and to interpose a tendon graft on 31 October 2018.
77Mr Maloney was asked specifically as to the extent to which the plaintiff’s condition can be related to the collision. He said:
“Mr Devenish’s condition can be directly related to the accident of the 4th May 2000. He demonstrated changes consistent with a fragmented osteonecrotic lunate with subsequent ulna carpal mid carpal joint osteoarthrosis. He had an unfortunate twist injury of the wrist at home and had experienced pain that was not manageable and he ended up requiring major wrist surgery. The changes in his wrist are consistent with post traumatic changes.”[54]
[54] PCB 237-238
78Mr Maloney was also asked whether the plaintiff’s “condition” can be related to the accident on 4 May 2000. He answered that question in a further report dated 26 August 2021 as follows:
“The degenerate condition that Mr Keven Devenish presented with when he first saw me on 8th September 2016, relates to post-traumatic osteoarthritis.
He presented with a degenerate radiocarpal joint, with fragmentation of the lunate. Pan-carpal osteoarthrosis had evolved and he came to see me about managing it.
It is reasonable that the changes seen on x-ray are the result of a high energy trauma.”[55]
[55]PCB 314
79Dr Murray Stapleton, plastic and hand surgeon, provided a medico-legal report dated 3 February 2020,[56] at the request of the plaintiff’s solicitors. He obtained a history of the collision, a brief history of the left wrist fracture and referral to Mr Maloney. He stated that the injuries “can be directly related to the accident that took place on 4 May 2000”.[57]
[56]PCB 252
[57]PCB 255
80ATB then provided Dr Stapleton with further medical reports and/or clinical records and asked him for a supplementary report. In response, he provided a report dated 13 August 2021.[58] In the further report, Dr Stapleton said:
“I have read through my report concerning your client’s motorcycle accident on 4 May 2000 and I have looked through the medical reports you have sent along for my consideration. There is nothing in the reports you enclosed that encourages me to involve any past event with what has been the reported result of the motorcycle accident described in my report.
Therefore, I believe my assessment relates totally to the motorcycle accident as described.”
[58]PCB 312
81The defendant has not yet obtained medico-legal opinion regarding the plaintiff’s left wrist.
82The plaintiff has obviously obtained medico-legal reports from Dr Stapleton regarding the left wrist injury, which support him on the question of causation, although, no doubt, Dr Stapleton would be challenged by the defendant as to whether he has the full clinical picture pre and post the collision. However, for present purposes, Dr Stapleton appears to have had such material as is available and has provided an opinion on causation. In other words, this is not a situation where the expert medical examiner has been unable to provide an opinion due to a lack of information.
83Equally, the treating hand surgeon, Mr Maloney, provides some support for the plaintiff on the issue of “causation”, but the defendant will, no doubt, challenge Mr Maloney’s opinion as being based on an incomplete history and being somewhat equivocal in the sense that he expresses the opinion that the x‑ray changes are the result of a “high energy trauma”.[59] No doubt the defendant will seek to agitate whether the water-skiing accident is an example of “high energy trauma”. However, again for present purposes, it is relevant in my view that Mr Maloney has provided his opinion, such as it is, and does not resile from his opinion because of any absence of clinical records regarding the plaintiff pre and post the collision.
[59]PCB 314
84That is the extent of relevant medical material. The plaintiff has obtained a medico-legal report from Mr Iain McLean dated 28 November 2019[60] dealing with the left knee injury. That opinion is not relevant to the issue of the extent of left wrist symptoms before or after the collision. He has also obtained a medico-legal report from Dr Kilner Brasier, Occupational Physician, dated 1 November 2019 that deals with both the left knee and left wrist injuries. Dr Brasier obtained a history that the plaintiff’s past medical history was “non-contributory”. The report is of some assistance in respect to an assessment of the plaintiff’s current condition, but it is of little assistance on this issue of pre and post collision contribution to the left wrist condition.
[60] PCB 244
85Therefore, while there may be gaps in the medical material, those gaps have not prevented the doctors from providing opinion as to the relevance of the collision to the plaintiff’s left wrist condition. There has been an exchange of some relevant clinical records, as well as reports from treating surgeons and medico-legal opinion dealing with causation.
The Defendant’s submissions
86At the outset, the defendant submitted that it relied on prejudice, both in a general and specific sense, as a reason why the limitation period should not be extended. In addition, the defendant submitted that the plaintiff’s explanation for the delay is also “very important”.[61]
[61]T53, L23
87In no particular order, the defendant submitted that documentary evidence exists to reveal at least intermittent problems of pain and weakness in the plaintiff’s left wrist before the collision and following the water-skiing accident. The defendant submitted that the problem for him in defending this case is that relevant radiological film (being an x-ray of 28 May 1998) is now missing. The plaintiff’s recall of any symptoms prior to the collision and his evidence that he cannot recall anything at all means that the defendant “will be hog-tied with at any hearing”.[62] The defendant having the evidentiary onus to establish what any pre-existing condition would have meant to the plaintiff is an onus that the defendant bears and the defendant is prejudiced now by reason of the passage of time in its ability to discharge that onus.
[62]T55, L8-9
88In a nutshell, the defendant submitted that the plaintiff has not been frank in the history given to doctors and that he is now disadvantaged in going back some 23 years in attempting to deal with the question of the contribution of the accident to the plaintiff’s current left wrist situation.[63]
[63]T59, L22-25
89Next, the defendant pointed to the evidence of the plaintiff having worsening symptoms in the left wrist from 2002 onwards and how that dovetails into the proposition “why on earth would he not seek legal advice about his situation or at least seek medical advice”.[64]
[64]T61, L9-12
90Next, senior counsel for the defendant said, in respect to the question of liability, that there is now “a real problem for a fair trial and a real issue in relation to prejudice to the defendant”.[65]
[65]T63, L8-10
91This was expanded upon in submissions. The defendant submitted that there were three independent witnesses to the accident, one of whom saw the aftermath, one of whom now has no memory and the other cannot be located. Senior counsel for the defendant said:
“ So, Your Honour, we say critical evidence about this matter is missing. And, further to that, the plaintiff’s own evidence is that he had some kind of regained memory about the whole thing himself and Your Honour heard his evidence about that, I won’t rehearse it.”[66]
[66]T65, L1-6
92Regarding the evidence of the defendant about the weather conditions at the time of the collision, the defendant has given candid evidence that he now has a defective memory and this, it was said, would not be surprising. He will now be subject to cross-examination about that defective memory. It was said that there cannot now be a fair trial. This aspect was summed up in discussion with senior counsel as follows:
“And, further, Your Honour, we say that that factors into the discretion of what’s just and reasonable and which is a part of a fair trial analysis anyway, but the question really is, is it just and reasonable to extend time to require a defendant to come to court and give evidence, uncorroborated by any witness that was around at the time when it may well have been able to be corroborated at the time, and trying to remember back 16 years and we have a bird’s‑eye view of the problems that that causes when one looks at the affidavit of Mr Mattiacci. He sounds as though he’s almost embarrassed, he’s saying, ‘Well, I’ve done the best I can’. And these cases ought not to be a memory tests, Your Honour, and we say that that’s ‑ it’s inappropriate to extend time on that basis.
Your Honour only has the plaintiff’s evidence as to when he regained this memory. There’s no contemporaneous medical evidence, there’s no evidence about his mental state, there’s no ‑ there’s nothing and this is the gentleman who fills out a claim form saying he was at work and then he’s not at work or he was not at work and then he is at work. And in our respectful submission his credit is ‑ well, it’s ‑ Your Honour can’t be satisfied with the fact when he says, ‘I think I got it back two months later’ it could have been any time his memory arrived back again, if it did, but he says it did ‑ that’s the only evidence.
And Your Honour will be giving a tick to the hearing of a ‑ I’ll put it in the vernacular, Your Honour, Your Honour would be extending time in a case when you’ve got a regain memory versus defective memory and that’s not an imperfect trial, Your Honour ‑ that’s not a trial, when there were witnesses around who saw it and they can’t be found.
So we say, Your Honour, that for those reasons the application should be refused.”[67]
[67]T68, L3-T69, L7
The Plaintiff’s submissions
93In respect to the inaccuracies in the plaintiff’s affidavit, he said that those issues were neither here nor there. He had referred to previous accidents and so nothing turned on that.
94Insofar as there were suggested inconsistencies in his TAC claim form or WorkCover claim form, it was submitted that no credit issue arose, and sometimes with an unclear memory or because sometimes things are just odd, particularly in circumstances where there was no mystery that he had collided with another car, nothing turned on the evidence in the TAC or WorkCover claim forms.
95Turning to the crux of this proceeding, the plaintiff submitted that there is no problem that arises out of the limitation delays. The sort of issue that arose about clinical notes and pre-existing injury was the type of issue that arose day in, day out in courts and there were often conflicts in the medical evidence about those sorts of matters. That of itself was not enough to conclude that the defendant could not get a fair trial. This was encapsulated by senior counsel (or the plaintiff) in final submission as follows:
“So we would submit that, yes, it’s going to be difficult for the defendant, it’s going to be difficult for the plaintiff but only for the exact normal reasons that there are and that is, there’s a prior injury, there’s present symptoms and the doctors now have to disentangle and try and work out what the input of the subject accident is. It’s a problem that the courts deal with every day in multiple courtrooms.”[68]
[68]T73, L11-18
96In respect to the steps taken by the plaintiff to obtain medical, legal or other expert advice, he submitted that his evidence should be accepted that he had intermittent pain, did not think much of it and attributed it to a combination of breaking his wrist in the collision and his work as a chef, and he put up with it and that is why he did not bother to seek advice about it.[69] It was said to be a perfectly reasonable explanation and one that operated neither for or against him.
[69]T74, L7
97In respect to the factors set out in s23A of the LAA, the plaintiff noted that they were not exhaustive.
98In respect to the circumstances of the collision, the plaintiff said that this is actually a classic case of the type that comes before the courts. The plaintiff’s retained memory is a prejudice to him insofar as he recovered memory sometime after the accident, and insofar as that causes his memory to be vulnerable to challenge, that was said not to be prejudice to the defendant, but rather prejudiced the plaintiff.[70]
[70]T75, L12-15
99In respect to the defendant noting that he was (probably) wrong about the weather, that should be seen, so the plaintiff submitted, in the context of an otherwise detailed statement by the defendant regarding the circumstances of the collision. Therefore, the defendant cannot seriously suggest that the delay in bringing the claim has affected his memory to any substantial degree.[71]
[71]T75, L28
100In respect to the evidence of the lay witnesses, one witness did not see the actual collision, and it may be that at least one of the other witnesses would not have anything useful to say in any event. This was not a scenario whereby witness statements were critical. In essence, the plaintiff submitted that this was always going to be a contest of versions between the plaintiff and defendant and a fair trial was still available to the defendant.
A synthesis of relevant factors
101Before turning to consider all of the factors relevant to whether the discretion to extend the limitation period should be exercised in favour of the plaintiff ꟷ including the matters set out in s23A of the LAA – I note that the issue of prejudice is central to what is in dispute. There is general prejudice due to the effluxion of time. However, the defendant also points to specific prejudice and raises the issue as to whether he can now get a fair trial.
102Turning, then, to the subsections of s23A of the LAA:
(a) The length of and reasons for delay on behalf of the Plaintiff
103There is no doubt that the delay is considerable. The limitation period expired in May 2006.
104The plaintiff’s explanation is that until September 2016 he was getting on with life. It was only when he developed significant symptoms in his left wrist and his ability to work was impacted that he decided to seek legal advice. Until then, he was unaware of the six-year limitation period, which is evidence I accept.
105I conclude that he did have intermittent symptoms in his left wrist over the years. It is not a situation where he was symptom free. But, I also accept that the level of symptoms was such that he was largely able to get on with his life. I accept the delay is significant, but equally I accept that where the initial claims for statutory benefits were made, and at least partially accepted, in circumstances whereby the plaintiff had returned to work and was ignorant of the relevant limitation period, then it can be understood why he did nothing at an earlier point in time. An analysis of this subsection does not all point one way, but on its own, neither does it point to a refusal to extend the limitation period.
(b) The extent to which, having regard to the delay, there is or likely to be prejudice to the Defendant
106Clearly this is a situation where the defendant raises specific prejudice.
107Firstly, specific prejudice is said to arise in respect to the inability to go back twenty-three years to try and “unscramble” the contribution that the collision made to the plaintiff’s left wrist injury, as opposed to damage that may have occurred through other events in the plaintiff’s life, including the water-skiing accident.
108There is some force in the defendant’s submission regarding the medical evidence of the plaintiff’s left wrist. His failure to mention the water-skiing incident in his affidavit and his general vagueness in his oral evidence of that incident and whether it may have involved the left wrist, highlights that memories fade and information is lost with the passage of time. But balanced against that, there is a significant amount of medical information regarding the plaintiff, including medico-legal opinion. There is also available some relevant medical records around the time of the water-skiing incident, including the records of the prisons at which the plaintiff was incarcerated.
109I accept that the defendant has made enquiries and the outcome of those enquiries suggest that some relevant clinical records may now be unavailable. I accept there is specific prejudice because of that, but I do not accept that prejudice to be so great that the defendant cannot properly investigate the injuries claimed by the plaintiff to have been suffered in the collision and, in particular, the left wrist injury. The medico-legal opinion to date, such as the opinion from Dr Stapleton, has been able to address the issue of injury, and extended injury, suffered in the collision. It is not a scenario whereby the doctors say that an absence of clinical records makes the task impossible.
110Next, the defendant raised the evidence now available from the three lay witnesses as specific prejudice. I accept there may be some prejudice to the defendant because one lay witness now does not have a memory of the collision and one lay witness cannot be found. But, the other witness was never an “eyewitness” and therefore there is little or no specific prejudice regarding that witness due to the effluxion of time.
111However, the defendant seems to have a very good memory of the collision, save for the issue of the weather conditions, in circumstances where the prevailing weather conditions appear to be a peripheral issue to the cause of the collision. Pausing here, one striking aspect of the evidence is that the defendant’s memory of the collision appears much sharper than the plaintiff who, of course, gave evidence of recalled memory. The contest at trial was to a large extent always going to be between the plaintiff’s version and the defendant’s version. In that setting, I do not accept that the lay witnesses are so critical that a fair trial is not possible. In circumstances where the lay evidence is compromised, in the sense of one witness having no recall and one witness unable to be located, there is some specific prejudice to the defendant, but in my view it is not determinative of this application. The defendant is able to give good evidence of the collision. The state of the lay evidence means that a fair trial is still available 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
112This provision does not appear to be particularly relevant. The defendant commissioned an investigation report, which has been exchanged. The TAC provided the plaintiff with information from time to time as part of his no fault claim but seemingly not in regard to a possible common law claim.
(d) The duration of any disability of the Plaintiff arising on or after the date of the accrual of the cause of action
113This provision does not appear to be relevant.
(e) The extent to which the Plaintiff acted promptly and reasonably once he knew the act or omission of the Defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
114As mentioned, the plaintiff’s evidence is that he retained solicitors in September 2016, at a point in time when the extent of his left wrist injury became clear to him. There is no real suggestion that once he consulted ATB he did anything other than act in accordance with the advice given to him and ATB appear to have acted promptly and reasonably to advance the plaintiff’s claim. The common law proceeding could not be issued until the plaintiff negotiated the “serious injury” gateway. An analysis of this section is otherwise similar to the analysis regarding the length and reasons for delay on behalf of the plaintiff. This is not a situation where the plaintiff “sat on his hands” once he became aware of the limitation period or the need to take steps to advance the proceeding.
(f) The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received
115This section collapses into some of the discussion earlier in these reasons. The plaintiff has provided medical material. Equally, as already discussed, the defendant highlights that relevant clinical records are now unable to be obtained and deficits in what is now available. But insofar as steps taken by the plaintiff, this is not a scenario whereby he has ignored relevant medical advice or delayed acting in accordance with medical or legal advice.
General considerations and a resolution of the application
116As mentioned, the provisions of s23A of the LAA are not exhaustive. The decision to extend the period of limitation is to be made based on all of the relevant circumstances as presented.
117I consider it relevant that the plaintiff has a significant left wrist injury. I accept that the significance of that injury did not become apparent until he suffered a rapid deterioration in approximately September 2016. Before then there is no suggestion that, apart from intermittent left wrist pain, he was unable to get on with his life.
118Next, the factual circumstances of the collision are not particularly complicated. As mentioned at the outset, it is a quintessential motorcycle versus car accident at a busy intersection. The defendant has a very good recall of the collision, save for the weather conditions. The factual matrix is not complicated. The crux of the factual dispute was always going to be between the version given by the plaintiff as opposed to the version given by the defendant. I accept there is specific prejudice due to the passage of time and a compromise in the quality of the lay evidence. But I do not accept that the defendant cannot have a fair trial, remembering that it is a fair trial, and not a perfect one, that the defendant is entitled to.
119The result of not allowing the application to extend time is that the defendant is able to rely on a limitation defence and that is a relevant matter to take into account, particularly where the delay is substantial. Limitation periods are obviously there for a reason and it is the plaintiff who has the onus to satisfy the Court that the discretion should be exercised in his favour to extend the relevant period of limitation. But, by the same token, the plaintiff has been granted a serious injury certificate by the TAC, after considering the serious injury request made by him. The consequence of disallowing an extension of the limitation period would be serious and adverse to the plaintiff, as he would be unable to pursue his common law claim. These considerations are not to be weighed against each other, but rather must be synthesised to arrive at a conclusion.
120In synthesising the competing considerations and circumstances of this application, it is obvious that not all point to the same conclusion. There are valid points to be made, both for and against a decision to extend the limitation period. But, in my view, the general and specific prejudice is not such that a fair trial is unavailable to the defendant. Ultimately, accepting the merit in the submissions of the defendant, having synthesised the competing circumstances and the evidence as a whole, I conclude that the circumstances in favour of granting the extension of time outweigh those against. I conclude that it is just and reasonable to extend the period of limitation.
121Accordingly, for the reasons given, the plaintiff’s application is allowed. I shall hear from the parties as to the appropriate orders and costs.
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