Foxley v TAC
[2021] VCC 1222
•1 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01057
| BENJAMIN FOXLEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 July 2021 | |
DATE OF JUDGMENT: | 1 September 2021 | |
CASE MAY BE CITED AS: | Foxley v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1222 | |
REASONS FOR JUDGMENT
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Subject:LIMITATION OF ACTIONS
Catchwords: Whether just and reasonable for limitation period to be extended – Delay of 4 years and 10 months – Motor vehicle accident occurred 21 years before issuing of proceedings – Plaintiff was a minor when motor vehicle accident occurred – Where all three witnesses to accident have been located– Whether fair trial can be had
Subject:TRANSPORT ACCIDENT
Catchwords: Serious Injury – Injury to right lower limb – Organic brain injury – Scarring to right and left lower limbs – Psychiatric impairment disorder
Legislation Cited: Limitation of Actions Act 1958 (Vic), Transport Accident Act 1986 (Vic), Civil Procedure Act 2010 (Vic)
Cases Cited:Sparkes v HylemitPty Ltd [2016] VSC 453; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Jones v Dunkel (1959) 101 CLR 298; Hassan v Noa (No 2) [2021] VSC 339; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Murdoch v Transport Accident Commission [2019] VCC 1137; Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44; Transport Accident Commission v Garcia (2015) 72 MVR 224; Baker v Transport Accident Commission & Anor [1997] 1 VR 622; Rowe v Transport Accident Commission [2017] VSCA 377; Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson Pty Ltd v Skorsis (2000) 12 VR 386; Turner v Love & Anor (1995) 21 MVR 314
Judgment: Limitation period extended; Serious injury application granted in relation to scarring of right and left lower limbs and severe mental or behavioural disorder only
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with | LHD Lawyers |
| Mr P Haddad | ||
| For the Defendant | Mr C Blanden QC with Ms B Myers | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1On 8 September 1998, at the age of seven, Mr Benjamin Foxley was struck by a motor vehicle when attempting to cross Bride Avenue in Hampton Park. As a result of that motor vehicle accident he alleges that he has sustained injury arising in negligent circumstances. The circumstances of his injury meant that he had six years from the date that he turned 18 years of age in which to commence his proceeding. In fact, he did not commence proceedings until 28 October 2019. Those proceedings were made by originating motion to this Court for a determination that he had sustained serious injury within the meaning of the Transport Accident Act 1986 (Vic) (“TAA”) pursuant to subsections:
I.s 93(17)(a), being injury to the right lower limb and an acquired brain injury (“ABI”);
II.s 93(17)(b), being permanent serious disfigurement by reason of scarring on both the right and left legs; and
III.s 93(17)(c), a severe long-term mental or severe long-term behavioural disorder.
2As these serious injury proceedings were brought some 4 years and 10 months after the expiry of the Limitation of Actions Act 1958 (Vic) (“LAA”) period within which to commence a proceeding, the Defendant took the statutory limitations defence. In response, the Plaintiff sought by summons, an extension of time in which to bring the proceeding pursuant to section 23A[1]. Both the section 23A application and the serious injury application were heard together. Mr Foxley swore three affidavits, sworn 20 October 2019, 25 February 2021 and 22 July 2021. He also tendered medical material. Only Mr Foxley was called to give viva voce evidence.
[1] Limitation of Actions Act 1958 (Vic), s 23A
3In determining the applications the following questions arise:
I.Is the Court satisfied that it is just and reasonable to extend the limitation period within which Mr Foxley can commence his action for personal injury having regard to all the circumstances of the case?
II.Has Mr Foxley sustained a serious injury within the meaning of the TAA in relation to:
(a) injury to the right lower limb and/or an ABI;
(b) permanent serious disfigurement, being scarring to the right and left lower limbs;
(c) severe long-term mental or severe long-term behavioural disturbance or disorder, being a mood disorder and/or an anxiety and depressive disorder.
4For the reasons which follow, I would answer the questions in the following manner. The Court is satisfied, having regard to all the circumstances of the case, that it is just and reasonable to extend the time within which Mr Foxley can commence his action for personal injury. The Court is further satisfied that pursuant to section 93(17)(b),[2] Mr Foxley has sustained permanent serious disfigurement in respect of the scarring to the right and left lower limbs. The Court is also satisfied that pursuant to section 93(17)(c),[3] Mr Foxley has a severe long-term mental or behavioural disturbance sufficient to satisfy the terms of the TAA. The Court is otherwise not satisfied that the injury to the right lower limb and/or the ABI constitutes a serious injury.
[2] Transport Accident Act 1986 (Vic), s 93(17)(b)
[3] Transport Accident Act 1986 (Vic), s 93(17)(c)
Relevant facts
5Mr Foxley was born on 18 December 1990 in Melbourne. He attended Coral Park Primary School in Hampton Park until about Grade 3. On 8 September 1998, he was with his mother delivering pamphlets when she asked him to go and wait by the car. In order to do so, he had to cross Bride Avenue in Hampton Park. While doing so he was struck by a car. Police and ambulance attended. Police records indicate that there were witnesses to the accident. These are named as Mr Merriman the driver, Louise Barnett and Jane Bartlett.[4] No witness statements were taken from any of these people at the scene. The Plaintiff’s mother did not witness the accident. The Plaintiff’s evidence in his affidavit material and in Court was that he has no memory of the accident. However, contrary to that evidence, in the history taken by Ms Vernieux, a neuropsychologist, on 19 October 2020 she records the following history:[5]
“Today Ben [said] that he was able to recall the lead up to the accident. He recalled that he was sick that day and so not at school, instead delivering catalogues with his mother. He said they were at a woman’s house at the bottom of a hill. He said that the woman was not home and he went back across the road to get a note to leave, but as he came back across the street a car came over the crest of the hill and hit him. He said he had a vivid memory of the car, describing it as a brick-like wagon. He said he recalled being hit and then landing in the gutter, this being his last memory.”
[4] Defendant’s Court Book (“DCB”) 34, at paragraph [22] and Exhibit PM6 at DCB 60-61
[5] Plaintiff’s Court Book (“PCB”) 168-169
6None of his affidavits contain any of these details as to the occurrence of the accident. In cross examination, he stated that he has little to no memory of the details of the accident. In evidence he stated: “I remember being hit by the car, and being in the air and landing in the gutter. That’s about it.”[6] More generally, he stated that he “barely [has] any memory from before the age of say 14”.[7] The report of the Dandenong Hospital states that “he had run into the side of the car and had his right leg run over”.[8] It noted that he did not lose consciousness at the scene. Upon being conveyed to Dandenong Hospital, he was noted to have a compound fracture of the right tibia and fibula. He also had minor abrasions to the left side of his head and back. He was immediately admitted and taken to theatre where the wound in the right leg was treated. First, a fasciotomy was performed in the lower leg and then an open reduction and external fixation for the fractures of both the tibia and fibula were performed. However, the next day the left leg also began to swell. An x-ray showed a fracture of the left tibia and Mr Foxley was returned for a decompression fasciotomy and open reduction and internal fixation of the fracture. He was returned to theatre on 11 September, 13 September, 15 September and 19 September for debridement and plastic surgery on both legs to deal with closure of the wounds. On 22 September, he was mobilised in a wheelchair and discharged home. He was followed up routinely through outpatients. On 20 November 1998, the external fixature was removed and he was advised to fully weight bear with crutches.
[6] Transcript (“T”) 39, Line (“L”) 29-31
[7] T43, L5
[8] PCB 58
7On 14 October 1998, his mother lodged a TAC claim form in respect of the accident and injuries sustained by Mr Foxley.[9] That claim was accepted and payments were commenced in respect of medical and like expenses. Mr Foxley returned to school at Coral Park Primary for Grade 2. However, the next year he moved to the Carrum Primary School for Grade 3. It is recorded by the TAC, and set out in Ms Magnano’s affidavit, that the last contact on the Plaintiff’s TAC file was made in about February 2000.[10] No further action on the file occurred until June 2017. I will come to that contact later.
[9] PCB 234-236
[10] DCB 32, at paragraph [8]
8In June 2002, Mr Foxley was taken by his mother to see a paediatrician by the name of Dr Rosengarten.[11] This was in the context where he had begun wetting the bed after his parents had taken on boarders at their home. He recorded this problem but also made the comment that there were no other major symptoms and otherwise, Mr Foxley looked very well and was growing and developing nicely. There is no further recording of consultations with Dr Rosengarten and this issue seems to have resolved. I mention this in the chronology as it was the Plaintiff’s case that after the motor vehicle accident his emotional behaviour changed such that he was much more angry. This recording from Dr Rosengarten does not support that assertion.
[11] DCB 74
9In January 2003, Mr Foxley began attending high school at the Monterey Secondary College. He gave evidence that he did not enjoy school, was not performing well and so, in 2005 toward the end of Grade 9, his parents made the decision to withdraw him from school. He then commenced at the Frankston TAFE in 2006 doing a “number of courses including transition education, work education, certificates I and II in general education”.[12] He completed his TAFE courses in 2009 aged 19 having completed, amongst others, a certificate of general education which was equivalent to year 11.[13] Shortly thereafter, he commenced working at Subway as a retail assistant. He worked there for a short period of time and then was unemployed for 12 to 18 months.[14] During this time, he attended the Casey Medical Centre under the care of Dr Zhao and he was placed on a mental health care plan and referred to Marie Reilly a psychologist, with significant anger issues.[15] He attended Ms Reilly for about four months in 2011.[16] As Mr Foxley claims to have an ABI, it is also necessary to record that on 19 August 2011 a CT brain scan was performed. Presumably, this was on the basis that he was suspected as having some organic brain problems on a history of recurrent severe headache. No acute intracranial abnormality was noted.[17]
[12] PCB 50, at paragraph [5]
[13] PCB 178
[14] PCB 179
[15] PCB 51, at paragraph [11]
[16]PCB 51, at paragraph [12]
[17] PCB 225
10In mid-2012, he returned to Ms Reilly for a further four sessions of psychological counselling due to anger, anxiety and depression.[18]
[18] PCB 51, at paragraph [13]
11As Mr Foxley claims ongoing injury to the right lower limb, it is also necessary to record that on 4 September 2012, he had an x-ray of the right knee on a history of painful joint and swelling. No abnormality was detected.[19]
[19] PCB 227
12In May 2013, Dr Zhao provided a further mental health care plan.[20] MRI brain scanning in May 2014 was recorded as normal.[21]
[20] PCB 51, at paragraph [14]
[21] PCB 229
13He began working at the RSL in Cranbourne as a dishwasher and worked in this position for about two years.[22] His family had moved to Rochester by this stage and he attempted to live in Melbourne with his brother. However, he ultimately came to move to Rochester and live with his family in 2014.[23] Since that time, he has been assisting them by working about one hour per day in the management of a caravan park. Otherwise he has been in receipt of Centrelink benefits.[24]
[22] PCB 50, at paragraph [6]
[23] PCB 50, at paragraph [7]; T49, L 4-7
[24] PCB 56, at paragraph [32]
14It is unclear but it appears that in mid-2015, he commenced work at the American Hotel as an apprentice chef. This work was full-time and lasted only until about January 2016.[25]
[25] See statement of Jan Oberin PCB 253-256
15Mr Foxley came under the care of Dr Nzegwu in January 2017. He referred him to a psychiatrist, Dr Emmanuel in February 2017,[26] who diagnosed him with a mood disorder with anger and impulsivity.[27] He also referred him on for CT and MRI scanning of the brain which was recorded as normal.[28] He began prescribing Tegretol, Cymbalta and Seroquel.
[26] PCB 78
[27] PCB 79
[28] PCB 232-233
16On 10 January 2017, he had his first consultation with Mr Peter Gough, a psychologist,[29] who considered that Mr Foxley potentially had a diagnosis of bipolar disorder as well as an undiagnosed ABI. He saw Mr Gough throughout 2017 who continued to postulate the possibility of an undiagnosed ABI and referred Mr Foxley onto a neuropsychologist, Dr Dowling. After testing, Dr Dowling ultimately concluded on 25 January 2018 that Mr Foxley had sustained a traumatic ABI.[30]
[29] At this stage Mr Gough was a counsellor and in training. He later qualified as a psychologist.
[30] PCB 103
17Interpolating in the medical chronology, Mrs Foxley made a call to the TAC in June 2017. This was said to be simply to reactivate the claim for medical expenses, given Mr Foxley was experiencing leg pains.[31] Mr Foxley deposed that in September 2017, he contacted LHD Lawyers.[32] He gave no reason as to why it was that he was prompted to make this phone call in September 2017. However, he did depose that as soon as he was provided with Dr Dowling’s opinion in January 2018, that he had sustained a brain injury, he realised he needed to seek legal advice given he had a significant injury.[33]
[31] T53, L15-20
[32] PCB 53, at paragraph [21]
[33] T57, L30 – T58, L6; PCB 53, at paragraph [22]
18On 1 March 2019, LHD Lawyers wrote to the TAC advising them that it was their client’s intention to shortly commence common law proceedings. They sought a waiver of the time limit imposed by the LAA. The TAC responded on 12 March 2019 denying the request to extend time.
19As recorded earlier, Mr Foxley lodged his serious injury application on 28 October 2019. This was 4 years and 10 months after the expiry of the limitation period and some 21 years after the date of the accident.
20Mr Foxley’s situation is that he currently lives in Rochester and is in receipt of Centrelink payments. He attends psychiatric treatment through Bendigo Health, with Dr Sharif, and is under the care of his treating doctor, Dr Nzegwu. He is prescribed Duloxetine, Carbamazepine and Quetiapine.
Assessment of the s. 23A application
21Section 23A of the LAA is applicable to the consideration of Mr Foxley’s application. Specifically, section 23A(2)[34] gives the Court the power to extend the period of limitation in a case of personal injury, if the Court decides that it is just and reasonable to do so. Such a decision is informed by those matters set out in section 23A(3)[35] which a Court shall have regard to in considering all the circumstances of the case. This is not an exhaustive list of the matters which must be synthesised by the Court in coming to its decision but they are matters which the Court shall have regard to.
Section 23A(3) relevantly sets out:[36]
(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.
[34] Limitation of Actions Act 1958 (Vic), s 23A(2)
[35] Limitation of Actions Act 1958 (Vic), s 23A(3)
[36] Ibid
22Dealing with each of those of those matters in turn and examining each party’s submission in relation to these matters.
(a) the length of and reason for the delay on the part of the Plaintiff
23It is common ground between the parties, that the motor vehicle accident occurred on 8 September 1998. At that time, the Plaintiff was aged seven years. The Plaintiff turned 18 on 18 December 2008 and by reason of the LAA had six years from that date to commence the action. This meant the limitation period within which to bring the proceedings expired on 18 December 2014. It is agreed that the Plaintiff did not issue proceedings before the expiry of the limitation period. It is accepted that Mr Foxley issued proceedings seeking a determination that he had a serious injury on 28 October 2019 and that it is this date that operates to delineate the period of the delay in bringing the proceeding.[37] The period of delay then, is from 18 December 2014 until 28 October 2019. This is a delay of 4 years and 10 months. This much is common ground between the parties. Mr Blanden QC, who appeared with Ms Myers for the Defendant, pointed out that regard also had to be had to the fact that the accident occurred in 1998. By reason of the fact that the Plaintiff was a minor at that time, time did not begin running until he turned 18. However, in Mr Blanden’s submission, that should not obscure the fact that this accident occurred some 21 years prior to the issuing of proceedings. Mr Blanden pointed to no specific authority which touched on how the significant period of time prior to the accrual of the cause of action – that is prior to when Mr Foxley turned 18 – ought be dealt with. However, it does seem to me to be a factor which must go into the synthesis of all the circumstances necessary to evaluate whether or not a fair trial can be had. That is the touchstone principle in the synthesis of matters required for the Court to make a decision pursuant to section 23A(2).[38] I find that the period of delay relevantly here is 4 years and 10 months, consistent with the parties’ submissions to me. I also consider, that it is also necessary to look at the date of the accident itself and consider issues associated with its effect on whether a fair trial can be had in the synthesis required. I do not consider that I can simply look at a period of delay of 4 years and 10 months but exclude all consideration of the date of the actual accident and matters which have occurred after that.[39]
[37] See Sparkes v Hylemit Pty Ltd [2016] VSC 453 at [30]-[31]
[38] Limitation of Actions Act 1958 (Vic), s 23A(2); Prince Alfred College Incorporated v ADC (2016) 258
CLR 134 at [105]
[39] Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152 at 157
24In support of Mr Foxley’s application, Mr Walsh who appeared with Mr Haddad, submitted on this topic that Mr Foxley had been completely unaware of his rights to bring a common law claim and that as soon as he became aware he acted with due speed. The first point to deal with is when Mr Foxley became aware of his rights to bring a common law claim. The Defendant’s submission is that it is likely Mr Foxley became aware of his common law rights around the time that his mother brought her own serious injury claim in respect of a WorkCover injury in around 2010. No documents were tendered in respect of this WorkCover injury that his mother had brought. However, Mr Foxley accepted that his mother had brought a claim for a workplace injury and after the serious injury stage had resolved out-of-Court. Mr Foxley accepted that he had a close relationship with his mother and knew of the claim. However, his evidence was that he was not aware he had such common law rights. As part of its attack, the Defendant pointed to the fact that Mrs Foxley had not provided any affidavit material as to the events which occurred in 1998 and that led to her making a claim to the TAC. She did not depose to receiving any information of her legal rights at that time or whether or not at any time she had given advice to Mr Foxley that he might wish to explore common law proceedings relating to his accident. The Defendant was scathing of the fact that no affidavit had been provided from Mrs Foxley, given when the injury occurred Mr Foxley was a minor and she, not only was immediately on scene after the accident, but could give relevant evidence about the development of his injuries. For example, the changing mood said to evidence the ABI. It was also said that she could have given evidence about the initial contact made with LHD Lawyers in September 2017.[40] In cross examination Mr Foxley gave evidence that it was Mrs Foxley who made the initial call to LHD Lawyers.[41] Though Mrs Foxley made a call to the TAC in June 2017, it was said to be simply to reactivate the claim for medical expenses, given Mr Foxley was experiencing leg pains. However, it was not until the following year, that any advice was said to be received regarding common law rights. This is in contrast to the fact that the Plaintiff’s solicitor deposed that his firm opened a file for Mr Foxley on 25 September 2017. The Defendant focused on this to suggest that this was the time common law rights were discussed – in contradiction to the Plaintiff’s evidence. Once again, the Defendant pointed to the lack of evidence from Mrs Foxley about this critical contact with lawyers and when any advice was received about pursuing a common law claim. I accept the Defendant’s characterisation of Mrs Foxley’s evidence, as being important and germane. It is important in that it sheds light on the circumstances of the accident, given that she was at the scene shortly afterwards. That evidence potentially impacts on issues of liability, such as surrounding physical circumstances, for example whether Mr Foxley was in a hurry. Mrs Foxley’s evidence also goes to the advice she received or did not receive in her interaction with the TAC after she had lodged the claim in 1998. It is further important, because it goes to the alleged deterioration in Mr Foxley’s condition after 1998, which is said to support the diagnosis by Mr Dowling, and which is under attack by the Defendant, that Mr Foxley has sustained an ABI. It is also important in the context of Mrs Foxley making her own common law claim, utilising experienced compensation lawyers in Victoria to bring her serious injury application and then go on to settle her case. It may be thought that she would then have some basis on which to guide her son on the path to seeking legal advice, if she was aware of time limits applying. Given these matters, I find that the evidence of Mrs Foxley would not have assisted Mr Foxley’s case and I draw that inference in accordance with the principles of Jones v Dunkel[42].
[40] PCB 339, at paragraph [4]
[41] T51, L14-17; T58, L22-26
[42] (1959) 101 CLR 298
25It seems accepted by the parties that once contact was made with LHD Lawyers, in September 2017, they acted with prudence and all reasonable speed in bringing on the serious injury application. I find that there was no extraneous delay caused by their actions.
26Rather, the issue is when did Mr Foxley become aware of his ability to bring a common law claim. This brings the evidence of Mr Foxley into focus. It was submitted by the Defendant that his evidence was unreliable. As recounted above, Mr Foxley swore three affidavits in this proceeding, which were tendered without amendment, and gave viva voce evidence. His evidence was said to be unreliable on a number of fronts. He gave evidence that prior to 2004 his memory was hazy.[43] This stands in contrast to the description of the incident he gave to Ms Vernieux set out above. Next, he gave evidence that he was aware his mother had brought a serious injury application in pursuit of common law damages. His evidence was this was around 2012.[44] He gave evidence that the settlement resulted in his parents purchasing a house in Rochester and that his mother had engaged solicitors being Clark, Toop & Taylor and then Slater and Gordon during this claim.
[43] T46, L10-11
[44] T50, L25-27
27He was then asked whose idea it was to ring the TAC in June 2017 and he suggested that it was his psychologist/counsellor, Mr Gough, who suggested it given that he was struggling. He then appeared confused in the giving of evidence and stated that he could not remember whether it was his idea or his mother’s to ring the TAC and that it was a spur of the moment decision.[45] This evidence was contradictory. There is no support for the assertion that it was Mr Gough who suggested calling the TAC in any of the clinical notes or records of Mr Gough. Mr Foxley was then taken to his affidavit sworn in October 2019.[46] There he had deposed that he realised after receiving Dr Dowling’s advice that he had an ABI and that his injury was “sufficiently serious” to seek legal advice and that this prompted him to call LHD Lawyers in 2018. The Defendant submitted this could obviously not be correct as Mr Notarianni deposed in his affidavit of 10 June 2020, that Mr Foxley had made the initial call to LHD on 6 September 2017. Even this was not clear because in his subsequent affidavit, sworn 27 July 2021, Mr Notarianni swore that the Plaintiff’s mother made the initial call on 6 September 2017 and then had a subsequent consultation on 18 September 2017. In any event the Defendant queried why contact was made in September 2017.[47] It was put to him that this suggested that he understood he needed a “serious injury” before he could bring a claim and that such knowledge came to him from his mother’s claim. Implicitly, it was suggested that he therefore knew something of the claims process and potential time limits but that he had not been forthcoming with this information. His answer to that question was that he was simply not sure why he had deposed as he had. His evidence on this point was unclear and I have real doubts about accepting it. It is also the case that in 2017 there do not appear to be any attendances on his treating doctor in relation to leg pain which might have prompted the call to the TAC on 1 June 2017. The affidavit of Ms Magnano describes the initial contact being between the Plaintiff’s mother and the TAC and thereafter a process of assessment being arranged by the TAC with a number of specialists.[48] The specialists arranged were a physiotherapist, a psychologist and a pain specialist. Overall, the Plaintiff’s evidence was unsatisfactory about the circumstances that led to the initial call to LHD Lawyers. However, there is no evidence to suggest that the Plaintiff knew of common law rights relating to the accident at any time prior to the conversations in 2018 with LHD Lawyers. Given this, I cannot be satisfied that the Plaintiff has at any time actively disregarded his knowledge of the limitation period. There is no positive evidence to demonstrate his actual knowledge of the time limit. In circumstances where Mr Foxley did not have such positive knowledge, there is no real strength to the attack that he did not act on his rights. I find that while he certainly did not act on this until he was given advice by his solicitors, this was due to him being unaware of those rights. In that circumstance, his delay from the accrual of the cause of action to the contact with LHD Lawyers is explainable. Thereafter, I find that he put his trust in his lawyers to investigate and prosecute those rights and they did so as reasonably prudent solicitors would. I find there is no evidence that Mr Foxley otherwise delayed the prosecution of the claim by being tardy with instructions, failing to attend appointments or completing the necessary documentation from September 2017 to the issuing of proceedings on 28 October 2019.[49] No criticism of this kind was levelled at his conduct during the course of the proceeding.
[45] T54, L4-7; T54, L13-16
[46] PCB 53, at paragraph [20]
[47] T59, L8 – T60, L11
[48] DCB 32, at paragraph [9]-[10]
[49] Delay here is used in the sense used in Koumorou v The State of Victoria [1991] 2 VR 265 at 271 by His Honour Justice Brooking – “I should say that I do not think that the word "delay" connotes knowledge on the part of the plaintiff of his right or ability to do the act which he has delayed doing. I think it is concerned simply with the facts of effluxion of time and inaction.” (my emphasis)
(b) the extent to which having regard to the delay, there is or is likely to be prejudice to the Defendant
28The Defendant submitted that in this case it will suffer from significant prejudice if an extension was granted. That submission proceeded on a number of fronts. First, the Defendant indicated that liability would be hotly contested. This seems a premature submission to make given its next submission. Second, given that liability was in real issue, the inability to locate one of the three potential witnesses compromised its ability to prosecute its liability case. Prior to the application coming on, the Defendant’s solicitor had managed to locate two of the three potential witnesses. These being the driver of the vehicle that struck the Plaintiff, Mr Merriman and also Louise Barnett. Ms Magnano’s affidavit does not indicate that statements from these witnesses were taken or that attempts had been made to do so. During the running of this trial Mr Walsh informed me that his instructor had managed to locate the third witness Janet Bartlett. His instructor had managed to call Ms Bartlett on the phone and according to his instructions, she has an excellent memory of the events surrounding the accident. I gave leave to the Plaintiff to reopen his case to file an affidavit in respect of Ms Bartlett’s evidence. An affidavit was received from Mr Notarianni in which he deposed to the conversation that he had with Ms Bartlett.[50] Accepting the general proposition that witnesses memories do fade over time and that each of the witnesses will not have a recall as precise as that immediately surrounding the time of the accident, it is clear that all three witnesses who can give primary evidence as to the liability case are currently available. What is unclear, is exactly what evidence they will give. None of the parties in this case have attempted to take statements from these witnesses. I am unclear why this is the case. However, there is no evidence to suggest that any of the witnesses are infirm or unable to make such statements. This is why the Defendant’s primary position, that liability will be hotly in contest, must be treated with a degree of caution. This is because if witness statements are taken from each of the three relevant witnesses such evidence may lead to a substantial resolution of the liability position one way or another.
[50] Affidavit of Steven Andrew Notarianni affirmed 3 August 2021
29There are no real documents that go to the liability contest which are unavailable. The relevant ambulance records, hospital records and police statements have been obtained by the parties. The Defendant makes the point that if there had been an earlier indication that common law rights were to be pursued, then perhaps further statements could have been taken from attending ambulance officers or police officers providing details which might have informed the resolution of the liability issue. However, I consider that the police, faced with an incident involving a seven year old child who sustained very significant injuries, would have made those investigations they thought were appropriate at the time prior to the scene being disturbed. The fact that they did not do so means that the opportunity was lost once and for all at that time. In sum, I find that the most relevant evidence is to be obtained from the three identified witnesses. I find that each of those witnesses is available. I find that at least one of those witnesses has an excellent recall of the events. I find that the ability to take statements from each of these witnesses and call them at trial, if necessary, provides the Defendant with an opportunity to conduct the trial fairly.
30It was also said by the Defendant, that the effluxion of time had deprived it of an opportunity to collect information which went to causation and damage. To understand this point, it is necessary to explain the way the Plaintiff puts his damages case. The Plaintiff alleges that after the motor vehicle accident he sustained a head knock. That led to an immediate change in his behavioural patterns and difficulties at school. His case is that this speaks of an ABI which was ultimately suspected by Dr Nzegwu leading to the referral to Mr Gough and ultimately the diagnosis by Dr Dowling in March 2018. To support this argument, the Plaintiff relies on the opinion of Dr Dowling, that he has an ABI. In turn, that opinion rests on two critical assumptions (i) that he was significantly more angry after the accident and (ii) that he had sustained a loss of memory for his life events prior to the accident.[51] I have touched upon the failure of there being any evidence from Mrs Foxley about these matters. However, the Defendant argues they have lost the opportunity to examine school reports and reports from TAFE, where Mr Foxley said he received counselling for anger and psychological problems in 2006 to 2009. There is no evidence that any party has attempted to obtain these materials, much less is there any evidence which suggests that such records are unavailable. However, where the Defendant has raised its potential prejudice from being unable to obtain such material it is for the Plaintiff to prove otherwise.[52] What is clear, however, is that the Defendant has access to the relevant medical material from Mr Foxley’s attendances on treating doctors and psychologists, certainly from 2002 when he began consulting with Dr Rosengarten. They also have the notes of Ms Reilly, the psychologist who he began to see from 2010. Thereafter, there is a wealth of material from treating practitioners and specialists which inform the Defendant about the Plaintiff’s psychological state. While the lack of school reporting is a factor to be weighed in the ultimate synthesis, and it is an important objective recording of the Plaintiff’s wellbeing against which to test allegations raised by the Plaintiff and his mother, I do not consider it to be of such prejudice to overcome the conduct of a fair trial.
[51] PCB 88
[52] Hassan v Noa (No 2) [2021] VSC 339 at [63]
31Coming to examine the issue of whether or not there was a head strike resulting in a loss of consciousness at the time of the accident, there is also material from the ambulance and police who were on site. This is buttressed by the reporting from the Dandenong Hospital and his treating doctor. There is also the evidence of Dr Rosengarten in 2002. I am unable to identify what further material would be relevant to the issue of whether or not there was a head strike during the course of the accident. The witness evidence of Mr Merriman, Ms Barnett and Ms Bartlett may inform this issue as well.
32As to the issue of whether there is loss of memory prior to the age of 14, this is an issue which may be informed by the school reporting but there is also the evidence of Dr Rosengarten and relevant practitioners who began to see Mr Foxley around the time he turned 18 which can similarly inform this issue. As set out above, he told Ms Vernieux at one point in 2020 that he had a very distinctive memory of what had occurred. I consider the prejudice suffered by the Defendant in challenging the opinion of Dr Dowling, by reason of not having an earlier opportunity to obtain records from the school, as reasonably slight. I find that the Defendant has a plethora of material upon which to base any challenge to the opinion of Dr Dowling. Further, I note that the Defendant has been provided with medical notes of all the Plaintiff’s treating practitioners and each of those people appear able to give evidence. In addition, the Plaintiff has been made available for examination since 2017 when the TAC began to assist him again for his physical and psychological ailments.
33In Brisbane South Regional Health Authority v Taylor,[53] it was noted that while the Plaintiff bears the onus in respect of satisfying the Court that an extension of time should be granted, there is an evidentiary onus on a Defendant if it seeks to claim actual prejudice.[54] Having set out the matters above, it appear to me that the Defendant is reduced to relying on the absence of records (TAFE and schooling) to support this argument.[55] I have addressed these matters above and consider such prejudice is limited.
[53] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
[54] Ibid at 567-568
[55] Defendant’s submissions, at paragraphs [39]-[43]
(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 has against the Defendant.
34This is not a relevant consideration, as there was no suggestion from parties that Mr Foxley did not have all the facts relevant to his cause of action. As such there is no conduct of the Defendant that falls within this category.[56] Nor was there any suggestion that the Defendant failed to take reasonable steps to recover relevant documents[57] or took “positive steps to disguise the correct entity for service”.[58]
[56] Murdoch v Transport Accident Commission [2019] VCC 1137 at [99]
[57] Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44 at [51]
[58] Ibid at [52]
(d) the duration of any disability of the Plaintiff arising on or after the date of the accrual of the cause of action
35Mr Foxley commenced to see Dr Chopra at the rehabilitation clinic at Bendigo Health in August 2016. At that stage, he was on antidepressant medication and was also seeing a psychiatrist for his labile mood. He came under the care of psychologist Mr Peter Gough in January 2017, who noted a history of explosive outburst towards his family, significant stress and a potential diagnosis was made of bipolar II disorder. He was referred to see Dr Emmanuel, a psychiatrist. He was concerned about the possibility of organic impairment and a CT and MRI of the brain were performed. Those scans were unremarkable.[59] This led Mr Gough to diagnose depression, anxiety and stress and bipolar disorder. Dr Emmanuel had placed him onto Quetiapine and then Tegretol, Cymbalta and Seroquel. He has continued being treated for his psychiatric conditions over the last few years with variations in medications occasionally. These matters are set out to give some context to the Plaintiff’s situation after the expiry of the limitation period to the time of the issuing of proceedings. In particular, it can be seen that the Plaintiff was psychiatrically unwell for a significant period of time after the expiry of the limitation period and until such time as he contacted his lawyers. While his condition is not such as to have prevented him from actioning his rights, it does provide some context as to why there was such a delay from the expiry of his rights to the date when proceedings were issued.
[59] PCB 171
(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
36I have set out above my findings, that after he had contacted LHD Lawyers Mr Foxley acted promptly and reasonably.
(f) the steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice on the nature of any such advice he may have received
37I find that the Plaintiff, upon understanding that he had legal rights, sought the advice of competent lawyers who obtained all relevant medical expert advice in order to prosecute his claims. As set out above, there is no attention focused in this application on the failure to act prudently after the receipt of advice from LHD Lawyers of common law rights that he had.
Synthesis
38Coming to synthesise the factors and the surrounding matters in this case, attention must be focused on whether or not a fair trial can be had by both parties in this proceeding. I note that the Plaintiff is required to show his case is a justifiable exception to the rule that the welfare of the state is best served by the limitation period in question.[60] I have set out above why I consider the Defendant is able to fairly prosecute its case in defence of the claim to be brought on behalf of the Plaintiff. While the Defendant faces some disadvantage in the conduct of its defence those disadvantages are not, in my estimation, great. It is not a case of simply weighing the Plaintiff’s right to bring a claim for alleged serious injuries against a Defendant’s right to enforce the limitation period. Rather, the task that is required is to synthesise all of the circumstances of the case and determine if it is just and reasonable to extend time.
[60] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553-554
39To summarise my findings, I consider that the Defendant has access to all witnesses relevant to the accident, being Mr Merriman, Ms Barnett and Ms Bartlett. I find that that they have access to the vast majority of medical material relevant to test the case the Plaintiff seeks to make on causation for the ABI, psychiatric and orthopaedic injuries. I find that the Plaintiff did not actively know of the applicable time limit within which to bring his common law proceedings and that he acted promptly once he did. I find that a fair trial can be had between the parties. By reason of those findings, I will extend the time within which the Plaintiff may bring his proceeding.
The serious injury application
40The Plaintiff put his claim for serious injury on numerous bases.
41Pursuant to section 93(17)(a),[61] he claims serious long-term impairment or loss of body function of:
(a) the right lower limb;
(b) the brain – ABI.
[61] Transport Accident Act 1986 (Vic), s 93(17)(a)
42Pursuant to section 93(17)(b),[62] he claims permanent serious disfigurement (scarring), being scarring to the right and left lower limbs.
[62] Transport Accident Act 1986 (Vic), s 93(17)(b)
43Pursuant to section 93(17)(c),[63] he claims severe long-term mental or severe long-term behavioural disturbance or disorder, being a mood disorder precipitated by an ABI, an anxiety disorder and depressive disorder. This characterisation is taken from the Plaintiff’s chronology, where he sets out the injuries relied upon.
[63] Transport Accident Act 1986 (Vic), s 93(17)(c)
44I consider that Mr Foxley has sustained a permanent serious disfigurement, being scarring to the right and left lower limbs, which satisfies a finding that he has sustained a serious injury within the meaning of the TAA.[64] At the commencement of the matter in Court, a view was conducted by me of the scarring of Mr Foxley’s legs. A viewing of the scarring on his legs gives, in my opinion, an entirely different perspective to that depicted in the photographs attached to Dr Crock’s report and tendered. I considered that the opportunity afforded by the view was critical in assessing this component of Mr Foxley’s application. I record that on inspection of the right leg it looked puffy and swollen. In addition, the indentations, where the external fixature was attached, were very pronounced and in my opinion, extremely ugly. The scars were very noticeable by reason of their length and prominence along the right leg. In clinical terms Dr Crock, a plastic surgeon describes the scarring of his lower right leg in the following terms:[65]
“In relation to his scars he had a Z shaped scar on his right leg with 90 degree angles with the Z. The superior limb is 5 cm and horizontal and the vertical limb was 25 cm. The inferior limb was 5 cm and slightly above horizontal and meeting the vertical scar at approximately 80 degrees.”
[64] Transport Accident Act 1986 (Vic), s 93(17)(b)
[65] PCB 322
45I record that on the view of the left leg, there was a noticeable wide scar on the outside of the left leg. As Mr Foxley walks, it flexes noticeably. It runs a very substantial portion of the outside of the left lower limb, from below the knee towards the ankle. Dr Crock describes it in the following manner:[66]
“On the left leg he has two scars, one on the medial side which was a 20 cm vertical surgical scar that was soft, supple and non-adherent to the underlying tissue, showing no evidence of ulceration.
On the lateral aspect of the left leg he had a 30 cm x 3 cm skin grafted area that was excoriated in a number of places with some minor ulceration. The grafted area was adherent to the deep tissues but for the most part was stable.”
[66] PCB 322-323
46It was uncontested that Mr Foxley treats the scars daily with moisturising cream but the scars on both legs remain periodically itchy. For example, he does scratch the scars to relieve the itch, but they are sensitive and scratching them causes them to break down in very small areas. This appears to have been the consistent course since the surgery. This is a very considerable period of time that Mr Foxley has had to live with this condition. There is no suggestion that further surgery is necessary or can alleviate this condition. For a young man having to tolerate the situation now for over 20 years with a significant life ahead of him, this is a substantial factor.
47Mr Foxley gave evidence that ever since the accident, he has hated the appearance of his legs and sought to cover them up to deal with the embarrassment. This caused some issues at school but even as an adult he intensely dislikes the appearance of his legs and so covers them up even on the hottest days. This is not a situation such as in Transport Accident Commission v Garcia,[67] where the scars were obviously visible on the upper torso and arms which might be more readily revealed and cause embarrassment. The Defendant here submits that because the scars are essentially always covered, they do not and cannot meet the test of being a serious injury. In Garcia,[68] at paragraph [27], the Court stated:[69]
“By the same reasoning process as applies in paragraph (a) cases, a psychological consequence of permanent disfigurement may also be taken into account when assessing seriousness in a paragraph (b) case.”
[67] Transport Accident Commission v Garcia (2015) 72 MVR 224
[68] Ibid
[69] Ibid at [27]
48Whilst there is a value judgement concerning the appearance of the scar which I am required to make, I must also, consistent with the Court in Garcia,[70] relying on the judgement in Baker,[71] take into account the consequences of the scarring. That involves a consideration of the mental element or mental consequence that Mr Foxley relies upon. I have considered the fact that he is required to moisturise the scars consistently to deal with the frequent itching. The scars do break down regularly. The scar on the left-hand leg is adherent to underlying structures and this leads to a degree of restriction in the flexion of the leg, which I witnessed during my view. He deposes in his last affidavit, that the scarring continues to be a significant problem.[72] This means the scars are tender to touch. He received advice from Mr Barmare, orthopaedic surgeon, that surgery was possible to have further skin grafted into the site but he decided not to have such surgery. He deposed that he is conscious of the scars and seeks to hide them from public view. This is supported by his long-term psychological counsellor, Mr Gough who has seen him on numerous occasions over the last four years. He records that the disfigurement has had a large impact on his self-esteem.[73] Taking into account all those matters as to consequences, as well as my own judgement of the scars on both legs, individually and in combination, I find that they do constitute serious permanent disfigurement.
[70] Transport Accident Commission v Garcia (2015) 72 MVR 224
[71] Baker v Transport Accident Commission & Anor [1997] 1 VR 622
[72] PCB 36, at paragraph [9]
[73] PCB 71
49Having made that finding, it is not strictly necessary to go further and consider the other bases upon which the Plaintiff seeks a determination of serious injury. However, given the requirements of the Civil Procedure Act 2010 (Vic) and the fact that these matters were put before the Court thoroughly, I will consider each of the applications briefly.
50Pursuant to section 93(17)(a),[74] Mr Foxley claims serious long-term impairment or loss of body function in respect of:
(a) the right lower limb;
(b) ABI.
[74] Transport Accident Act 1986 (Vic), s 93(17)(a)
51The application in respect of there being serious injury arising from injury to the right lower limb was not pressed strongly by the Plaintiff. It appeared rather in name only. It was not the subject of any detailed affidavit material despite Mr Foxley swearing three affidavits. Rather, it appeared simply as a location for pain. There was no detail provided in the affidavit material as to the impairment consequences said to flow from injury to the right leg. No evidence was elicited from Mr Foxley in the witness box about the impairment consequences associated with the right leg. The report of Mr Kossmann notes that there is sharp pain in his shins and both of his knees.[75] He was recorded as being able to walk up to 10kms. However, he noted that Mr Foxley only stopped working due to pain issues in his back and his mental state. In the report of Mr Barmare, under the heading of current symptoms, he records the current symptomatology in the knees and low back pain.[76] He did not have any recording of leg pain. These medical reports are the most relevant given that they are from orthopaedic specialists. I rely on them. There were no radiological examinations which were said to demonstrate ongoing pathology in the right lower limb. Given this paucity of evidence identifying the exact ongoing injury to the right lower leg and its ongoing impairment consequences, I am unable to make a finding as to what injury the Plaintiff currently complains of other than identifying that injury as the fractures to the right lower limb sustained in 1998. It is entirely unclear what the impairment consequences of that injury are as at the date of trial. For these reasons, I am not able to make a finding that the Plaintiff has sustained a serious injury in respect of the right lower limb.
[75] PCB 214
[76] PCB 306
52Turning to whether or not the Plaintiff has sustained an ABI as a result of the motor vehicle accident. The Plaintiff’s application at this point is heavily reliant on the opinion of Dr Dowling. It will be recalled that Dr Dowling diagnosed an organic brain injury in January 2018. That opinion was based on two criteria. The first is:[77]
“However his parents make no mention of anxiety as being manifested by him in the first few months after the accident. What they noticed was irritability or a vulnerability to angry outbursts, which are common sequelae of traumatic brain injury.” (My emphasis)
[77] PCB 88
53The second feature, that in Dr Dowling’s opinion supported the presence of an ABI, is Mr Foxley’s loss of memory for his life events prior to the accident.
54This diagnosis is not supported by Ms Vernieux,[78] Dr Szmulewicz[79] or Dr Stark[80].
[78] PCB 166-209
[79] PCB 121-126
[80] DCB 4-8
55There are a number of matters which undermine the opinion of Dr Dowling. First, Dr Dowling does not appear to have been armed with Dr Rosengarten’s opinion from 2002. This does in fact record some history of anxiety, though this is several years after the accident. Dr Rosengarten specifically recalls the reason for Mr Foxley’s presentation as being rising anxiety in a situation of his parents welcoming boarders to their house. There is no mention of vulnerability to angry outbursts or even anxiety and irritability associated with the motor vehicle accident. It could be assumed that if his mother was so concerned by rising anxiety to take Mr Foxley to Dr Rosengarten 2002, she would also have provided a history of rising vulnerability to angry outbursts from the time of the motor vehicle accident. I consider that Dr Rosengarten’s opinion and recordings may very well change Dr Dowling’s opinion.
56Second, most importantly, it does not appear that Dr Dowling has a correct history of Mr Foxley’s loss of memory. In Court, Mr Foxley stated that he has no memory of matters before the age of 14. This directly contradicts Dr Dowling’s history that he has no memory of matters prior to the accident. The loss of memory that Mr Foxley deposed to, however, directly contradicted by the history that he gave to Ms Vernieux where he set out in some detail the actual circumstances of the accident. Similarly, this does not accord with Dr Dowling’s opinion that there is a period of episodic retrograde amnesia.
57These two matters are sufficient to undermine acceptance of Dr Dowling’s opinion. It is to be noted that there is some support for this position from Mr Paoletti, who states “[h]owever, there are strong indicators of an organic involvement, as well”.[81] However, to this I would add that, it is an opinion directly contradicted by Ms Vernieux, Dr Szmulewicz and Dr Stark. Their opinion also accords with the CT and MRI brain scanning which reports no abnormality was detected. These opinions are consistent and I prefer and accept them to that of Dr Dowling and those who rely on his opinion, such as Mr Gough and Dr Nzegwu.
[81] PCB 159
58Alternatively, even if I was satisfied that there was an organic brain injury, neuropsychological testing by Dr Dowling, Ms Vernieux and particularly Dr Gibbs[82] show that Mr Foxley does not appear to have any cognitive impairment.[83] It is then difficult to ascribe any impairment consequences to the organic brain injury. On the basis of the neuropsychological testing which appears very thorough, I find that there is no organic deficit which would lead to impairment consequences that could be considered serious. For the above reasons, I would deny the Plaintiff’s application for a determination that he has sustained a serious injury by reason of an ABI.
[82] DCB 9-28
[83] PCB 101; PCB 204; DCB 26
59Pursuant to section 93(17)(c),[84] Mr Foxley claims severe long-term mental or severe long-term behavioural disturbance or disorder, being a mood disorder precipitated by an ABI, an anxiety disorder and depressive disorder or in the alternative that he has a psychiatric injury but it is not founded on an ABI.
[84] Transport Accident Act 1986 (Vic), s 93(17)(c)
60The starting point is that the Plaintiff must establish what injury has been sustained as a result of the motor vehicle accident.[85] From there it must be determined whether that injury is serious in the defined sense.
[85] Rowe v Transport Accident Commission [2017] VSCA 377 at [82]
61I have set out above, briefly, Mr Foxley’s diagnosis and treatment course for his psychological problems. In his submissions, Mr Foxley submits that he has a mood disorder, anxiety disorder and depressive disorder arising from the accident.[86]
[86] Plaintiff’s submissions at paragraph [19(c)]; T6, L29 – T7, L2
62Given my finding that he does not suffer from an ABI, I do not accept his first argument that he has a psychiatric injury resulting from an ABI.
63Turning to his alternative argument, which is that he had a psychiatric injury resulting from the motor vehicle accident. Such an argument seems broadly accepted by the medical practitioners who have opined in this case. Most notably the opinions of Mr Paoletti[87] and also Dr Strauss[88] in this regard.
[87] PCB 140
[88] PCB 297
64The first issue that the Defendant raised in respect of this matter, was the fact that there were multiple other causes for the psychiatric injury claimed and that were not relevantly separated out so that the Plaintiff could identify the injury caused by the accident. For example, it was submitted that there was a genetic predisposition to the psychiatric injury complained of. The Defendant relied on the fact that there was family history of psychiatric injury and Mr Foxley had begun presenting psychiatrically because of this naturally occurring predisposition. I do not accept that argument. Dr Strauss makes clear that the motor vehicle accident continues to be a significant factor in his psychiatric presentation. Dr Strauss’ opinion is limited in value to some degree because he only saw Mr Foxley once, but he had access to the full range of background materials and this placed him in a sound position to opine. Mr Paoletti had an advantage in this respect because he examined Mr Foxley over two occasions, separated by about 17 months. He also had access to all the background materials. He acknowledged that the formulation of the cause of the psychiatric diagnosis was difficult. He postulated that there was an organic brain injury as the basis for the current presentation or alternatively, it was a behavioural change wrought by the accident. Though the matter is difficult for these experienced practitioners, the Court at this stage of litigation is required to identify the injury caused by the accident and then make a determination of whether it is a serious injury in the defined sense. It is not sufficient to look at the final condition and make a determination of whether that overall condition is serious or not. That would fall foul of Petkovksi,[89] Skorsis[90] and Rowe[91]. Here, the evidence points to an acceptance of the Plaintiff’s submissions. This is first due to the opinions of Mr Paoletti. Second, the report of Dr Emmanuel, a treating psychiatrist found that there was no underlying bipolar condition but rather a behavioural and mood disorder secondary to ABI.[92] While the identification of an ABI was the source of the mood disorder is not a matter I accept, I consider this opinion does not gainsay Mr Paoletti’s proposition that the motor vehicle accident was the cause. It does however, contradict the Defendant’s submission of a genetic predisposition. This opinion is followed similarly by the other treating psychiatrists Dr Thomas[93] and Dr Sharif[94]. Most importantly, the opinion of Dr Tucker, where the Plaintiff has been seen over 100 times, is to the same effect. The fact that, after considering Mr Foxley’s condition on so many occasions, the treating practitioner has come to this opinion is strong support for the Plaintiff’s case. I accept that evidence and I find that as a result of the accident Mr Foxley has sustained a behavioural disturbance disorder, with anxiety and depression.
[89] Petkovski v Galletti [1994] 1 VR 436
[90] RJ Gilbertson Pty Ltd v Skorsis (2000) 12 VR 386
[91] Rowe v Transport Accident Commission [2017] VSCA 377
[92] PCB 81
[93] PCB 111
[94] PCB 113
65Turning to consider whether the injury is a serious injury in the defined sense, I find that it satisfies the test for the following reasons. First, the Plaintiff has had a prolonged course of treatment for his condition. This began sporadically with Ms Reilly in 2010[95] and then Mr Iacobucci.[96] Mr Foxley’s treating doctor put him onto mental health care plans during these times. He then came under consistent care with Dr Tucker (and saw at her practice Mr Gough, Ms Davidson and Mr Mortimer) on over 100 occasions on a self-funded basis over a 4 year period.[97] This demonstrates a real ongoing need to deal with persistent symptoms. These being anger, stress, violent outbursts in which he can strike his mother, wander off in a daze or hit things.[98] Second, he requires significant amounts of medication. In his affidavit, he deposed to taking Tegretol, Cymbalta, Voltaren and Sandomigran.[99] In his further affidavit of 25 February 2021, Mr Foxley deposes to taking Duloxetine, Risperidone, Carbamazepine and Quetiapine. Dr Sharif in his report of February 2021, provides a diagnosis and the reasons for the prescription of medications.[100] These are all prescription medications of a serious nature.[101] While these have ameliorated some of his symptoms they are still needed to control his condition. For example, prior to the medication regime he experienced severe migraine type headaches. These have dissipated but only so long as he remains on medication. As in Turner v Love,[102] this does not detract from the serious consequence of his condition. In the same vein, his sleep has improved on medication of late but he has otherwise had to endure years of constant disrupted sleep. Third, there is a very significant effect on his ability to work. Mr Foxley was unable to work at the American Hotel due to a combination of physical and psychological reasons. However, the opinion of both Mr Paoletti and Dr Strauss is to the effect that his psychiatric condition has had a significantly deleterious effect on his ability to work.[103] For a young man who is now only 30 this a significant effect.
[95] PCB 51, at paragraph [12]
[96] PCB 52, at paragraph [15]
[97] PCB 76
[98] PCB 75-76; PCB 291; PCB 203
[99] PCB 55-56, at paragraph [29]
[100] PCB 113-114
[101] PCB 291; PCB 152
[102] Turner v Love & Anor (1995) 21 MVR 314 at 323
[103] PCB 161; PCB 297
66Given these above matters, I find that Mr Foxley has a severe mental or behavioural disorder in the defined sense.
67I will make consequent orders and hear the parties on the question of costs.
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