Galley v Highway Stabilisers Pty Ltd

[2011] VCC 1505

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION

GENERAL DIVISION

Case No. CI-09-04778

MICHAEL GALLEY	Plaintiff
v
HIGHWAY STABILISERS PTY LTD	First Defendant
HIGHWAY STABILISERS (A FIRM)	Second Defendant
VACUUM OIL CO PTY LTD	Third Defendant
CSR LIMITED	Fourth Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2011
DATE OF JUDGMENT:	18 November 2011
CASE MAY BE CITED AS:	Galley v Highway Stabilisers Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2011] VCC 1505

REASONS FOR JUDGMENT

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Catchwords: LIMITATION OF ACTIONS – Transport Accident – s.23A Limitation of Actions Act 1958 – specific and general prejudice to defendants – delay in bringing serious injury application.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC with	Hounslow & Associates
Mr M J Walsh
For the First and Second	Mr D McWilliams	Moray and Agnew
Defendants
For the Third and Fourth	Mr A D Clements	McCabe Terrill
Defendants  HIS HONOUR:

Preliminary

1 This is an application pursuant to s.23A of the Limitation of Actions Act 1958 (“the Act”) for leave to extend the period within which the plaintiff’s statement of claim may be issued,

2          On 16 December 2002, the plaintiff was riding his motorcycle along Boneo Road, Flinders, when he lost control and the motorcycle ran off the road and struck an embankment. As a result, he suffered injury to his left shoulder, left leg, neck and lower back. He says the cause of the accident was unstable bitumen which had been recently laid upon the road surface, either by or under the direction of the first and second and/or third and fourth defendants.

3          Pursuant to the relevant provisions of the Act, any claim for damages must be issued within six years of the cause of action, namely by 16 December 2008. The accident was a “transport accident” within the definition of the Transport Accident Act 1986, and as such, before proceedings at common law could be issued, the plaintiff was required to satisfy the “serious injury” requirements of s.93 of the Transport Accident Act. A “serious injury” application was made to the Transport Accident Commission (“TAC”), and on 18 August 2009, the Commission issued a “serious injury certificate” pursuant to s.93(4)(c).

4          The plaintiff’s Writ alleging negligence against the defendants was issued on 7 October 2009. The plaintiff’s Writ is thus out of time. By Summons dated 9 December 2010,[1] the plaintiff sought an extension of time pursuant to s.23A of the Act within which to bring the proceeding. Each of the first and second, and third and fourth defendants pleaded the time limitation defence.[2]

[1]             Joint Court Book (“JCB”) 16

[2]             JCB 12, 14

5          By agreement, the parties tendered a Joint Court Book which stood as the evidence in the application. No oral evidence was called.

Relevant Legislation

6 Section 93(4) of the Transport Accident Act 1986 provides that a person injured in a transport accident may not bring proceedings to recover damages at common law unless and until:

(a)	the TAC has determined the person has suffered a degree of impairment as a result of injury pursuant to s.46A, s.47(7) or s.47(7A) of at least thirty per cent; or
(b)	the TAC is satisfied that the person has suffered a serious injury and issues a certificate to that effect; or
(c)	a court, on application of the person, gives leave to bring proceedings.

7 The mechanics of the bringing of proceedings to seek leave are set forth in s.93.

8 In granting an extension of time within which a proceeding seeking damages for injury suffered in a transport accident, may be brought, pursuant to s.23A(2) of the Act, a court may grant leave extending the time if it determines it is “just and reasonable so to do”. Pursuant to s.23A(3), in exercising the discretion, the Court –

“shall have regard to all the circumstances of the case including … 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)	…
(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.”

The Transport Accident and the Involvement of the Defendants

9          According to the plaintiff’s Amended Statement of Claim,[3] the transport accident occurred on 16 December 2002 in the following circumstances:

“The plaintiff’s motorcycle, whilst travelling along Boneo Road, came into contact with a patch of liquid bitumen situated on the roadway, causing the plaintiff to lose control of his motorcycle.”

[3]             JCB 6-10

10        The plaintiff alleges that at the time the first and/or second and/or third and/or fourth defendants were responsible for the performance of repair work upon the roadway, alternatively, were responsible for the control and maintenance of repair work on the roadway.

11        It is convenient to refer to the first and second defendants as the one entity and the third and fourth defendants as the one entity.

12        The third and fourth defendants held the head contract with VicRoads to carry out road repairs, including to the relevant area of Boneo Road.[4] The third and fourth defendants then subcontracted the actual maintenance and repair work to the relevant area of Boneo Road to the first and second defendants.[5] The work on the road was completed on 4 December 2002.[6] There is nothing to suggest the first and second defendants are not still in existence as viable corporate entities.[7] The first and second defendants retained an engineering expert, Mr Bob Munn, in January 2011 to investigate the circumstances of the transport accident, and to provide an opinion.[8] According to that report, he states:

“I have been instructed that the bitumen spillage resulted from leakage

from a bitumen tank normally maintained at 180 degrees Celsius. … .”[9]

[4]             JCB 160

[5]             JCB 160

[6]             JCB 160

[7]             See generally the affidavit of Priscilla Spyridis at JCB 160-163

[8]             JCB 167-196

[9]             JCB 175

13        The corporate structures and the involvement of the third and fourth defendants is somewhat more complex. According to the affidavit of Julia Ruth Cornock, sworn 4 April 2011,[10] the third defendant, Vacuum Oil Company Pty Ltd, and the fourth defendant, CSR Limited, were in partnership in a pavement and road surfacing business known as “CSR Emoleum”. CSR Emoleum had a separate existence from each of the third and fourth defendants and had its own workforce, plant, equipment and premises.[11] In February 2003, the partnership changed its name and partners as part of a CSR corporate group restructure. The new partnership name changed to “Emoleum”.[12] It continued as a pavement and road surfacing business. One of the partners of Emoleum at this time was a subsidiary of Holcim (Australia). That company’s holding company was Rinker Group Limited, now known as Holcim Participations (Australia) Pty Ltd. In 2006, Downer EDi Works Pty Ltd acquired the Emoleum partnership by acquiring the two partners and the Holcim (Australia) Special Purpose subsidiary, then called “Readymix Emoleum Road Services Pty Ltd”.[13]

[10]           JCB 197

[11]           JCB 254

[12]           JCB 254

[13]           JCB 254

14        Thus the involvement of the third and fourth defendants in the Emoleum business ceased in 2006.

15        It is not clear from the evidence available as to the nature and extent of the involvement of the third and fourth defendants in the work carried out to the relevant portion of the asphalt surface of Boneo Road at the time of the transport accident, save that it held a head contract with VicRoads and subcontracted the work out to the first and second defendants.

The Plaintiff’s Injuries

16        The plaintiff was born on 2 March 1968. According to the submissions made on his behalf, the injuries sustained in the transport accident followed a somewhat convoluted course which is said, in part, to explain why there was a significant delay in the bringing of proceedings. It is thus necessary to examine the injuries sustained and their treatment.

17        Generally, the injuries sustained and their treatment are described in the plaintiff’s affidavit, sworn 5 March 2011.[14] Following the transport accident, he was admitted to the Frankston Hospital and diagnosed as suffering a fracture to his left scapula. Surgery was performed on 20 December 2002 by Mr Andrew Webber, orthopaedic surgeon.[15] The fracture was secured by wires and screws. During 2003, it would appear the plaintiff suffered ongoing problems with the shoulder, and on 27 August 2003, Mr Webber performed a manipulation and hyrdrodilatation under general anaesthetic.[16] The fracture was found to be anatomically aligned and stable. In May 2004, the plaintiff complained of persistent left shoulder pain and restriction, and altered left hand sensation.[17] In 2004, the plaintiff complained to Mr Webber of problems with his lower back and pain in the left knee.

[14]           JCB 20-22

[15]           JCB 64

[16]           JCB 65

[17]           JCB 66

18        According to a report from his general practitioner, Dr Wise,[18] he treated the plaintiff over 2003 and 2004 for his fractured scapula, low-back injury and left knee pain. According to Dr Wise:

“With his return to work – he is expected to proceed slowly and be severely limited in heavy lifting, and overhead work. The prognosis is for continued gradual recovery – as shoulder pain and stiffness settle and muscle strength and coordination return. This will take many months.”

[18]           JCB 63

19        By his further report of August 2007,[19] Dr Wise said the plaintiff suffered significant and persistent symptoms to his low-back, left shoulder and neck pain, all of which limited his work as a painter. He set out a range of treatment he had undertaken.

[19]           JCB 112

20        The plaintiff was referred by his solicitors to Mr Schofield, orthopaedic surgeon, first in November 2004, and then on a number of occasions through to November 2010. In 2004, Mr Schofield noted that given the severity of the shoulder injury, there had been very slow improvement. He said that the plaintiff’s low-back problem remained largely undiagnosed and that the plaintiff required an MRI scan.[20]

[20]           JCB 73

21        By 2005,[21] Mr Schofield said the plaintiff had a permanent disability as a result of the fracture to the left shoulder and would always have some limitation of movement. He noted that there had been no MRI scan undertaken to the lower back.

[21]           JCB 99

22        In November 2010, Mr Schofield noted that the plaintiff had spinal surgery in December 2009 which had not been particularly successful. He said the plaintiff complained of restricted use of the left shoulder, and persistent pain in the area, with referred pain into the arm and fingers. He said he was not fit for his pre-injury occupation as a painter.

23        In his final report of December 2010,[22] Mr Schofield arranged a further MRI scan of the lumbar spine which he said reported a recurrent disc extrusion at the L5 level compressing the L5 nerve root, evidencing a recurrent disc prolapse at L4-5. He considered the prospect of a further decompression and spinal fusion at L4-5. He noted the plaintiff continued to suffer problems with his left shoulder.

[22]           JCB 143

24        In June 2005, the TAC arranged for the plaintiff to be examined by Mr Robert Carey, orthopaedic surgeon.[23] As a result of the left shoulder fracture, he noted the plaintiff suffered residual stiffness and intermittent pain in the shoulder. He also believed he had suffered a disc injury at L4-5 with some referred symptoms in the left leg. He took the view the plaintiff’s work capacity was reduced as a result of his injuries. He said the left shoulder problems would persist indefinitely and that he would continue to have troublesome symptoms in his lower back.

[23]           JCB 75-80

25        In June 2007, the plaintiff was referred to Dr Clayton Thomas, rehabilitation specialist.[24] Dr Thomas diagnosed a lumbar disc injury at L4-5 which, at the time, he noted as the plaintiff’s “primary problem”. He said that his ability to perform work as a painter/decorator was limited and noted that although he had remained self-employed, he had others doing the physical work for him.

[24]           JCB 108-111

26        The plaintiff was also examined by Dr David Weissman, psychiatrist, in June 2005.[25] He diagnosed the plaintiff as suffering a mild Post-Traumatic Stress an Anxiety Syndrome, together with a moderate Adjustment Disorder with depressed and irritable mood, as a reaction to his physical injuries. He assessed the plaintiff as suffering a whole person psychiatric impairment of 18 per cent.

[25]           JCB 81

27        In October 2005, the plaintiff was examined at the request of his solicitors by Dr Michael Epstein, consultant psychiatrist.[26] He diagnosed the plaintiff as suffering a Post-Traumatic Stress Disorder and, as a result of physical injuries, an Adjustment Disorder with depressed mood. He assessed the plaintiff as suffering a whole person impairment on psychiatric grounds of 12 per cent.

[26]           JCB 101

28        Prior to the transport accident, the plaintiff had worked with a partner, Sean Morton, operating a painting business called “Hailwood Painting”. About six months before the transport accident, he commenced a painting business under his own name, “Southview Painting Company”. At one stage he said he had six to eight subcontractors working for him.[27]

[27]           JCB 119

29        After he recovered from the shoulder surgery, he returned to work as a self- employed painter. Because of difficulties in carrying out the work, he resumed his partnership with Mr Morton in Hailwood Painting in about June 2005.[28] He said that the partnership was not viable as there was insufficient profit to be shared, and in September 2006, he resumed work for himself under the name Southview Painting Company.

[28]           JCB 124

30        According to his affidavit sworn 8 January 2009 (shortly after the expiration of the limitation period), the plaintiff continued to suffer difficulties in his work as a painter. He considered obtaining alternative employment. He had difficulties riding his motorcycle. He continued to suffer pain in the left shoulder and lower back, with referred pain into the left leg. He said he was restricted in a range of domestic, recreational and social pursuits as a result of his injuries.[29]

[29]           JCB 123-125

Steps Taken by the Plaintiff and his Solicitor to Prosecute his Common Law Action

31        On 1 January 2003, the plaintiff wrote to VicRoads complaining of the bitumen surface which he alleged had caused him to lose control and crash his motorcycle.[30] On or about 4 February 2003, he retained his solicitor, Mr Andrew Hounslow, to act on his behalf in relation to the transport accident. On 6 February 2003, he received a letter from CSR Emoleum Road Services.[31] The letter was signed by “Garry Millgate, contract manager” and said:

“I wish to advise that CSR Emoleum is responsible for the maintenance of roads on the Mornington Peninsula and VicRoads has forwarded your letter regarding the incident that occurred on 16th December to me for our attention.

We will be investigating the matter fully and I would ask you to supply the video and photographs that you have to assist in our assessment. … .”

[30]           JCB 29

[31]           JCB 30

32        The plaintiff supplied photographs and a video which he had taken at some point after the transport accident.

33        He received a further letter from Mr Millgate dated 23 February 2003.[32] That letter said:

“I wish to advise that CSR Emoleum has carried out an investigation into the alleged incident has (sic) established that our subcontractor, Highway Stabilisers, was the company carrying out pavement works at the above-mentioned site. I have contacted the owner, Mr Steve Hey, and provided him with all correspondence to (sic) relating to the matter. He can be contacted at … All future correspondence relating to this matter should be directed to Mr Steve Hey of Highway Stabilisers.”

[32]           JCB 31

34        In February 2003, the plaintiff submitted a claim to the TAC in relation to his injury. The claim was accepted and he received payment for medical expenses and loss of wages.

35        In August 2003, Mr Hounslow wrote to Highway Stabilisers seeking payment for the cost of repairs to the motorcycle the plaintiff was riding at the time. After negotiation, the claim was resolved and the plaintiff signed a release and was paid an amount of $2,500.[33]

[33]           JCB 32, 33, 34 and 55

36        There was no further communication by the plaintiff or his solicitors to the first or second defendants until 23 December 2008 notifying them of the plaintiff’s intention to pursue a common law damages claim.[34] Further, there was no further contact between the plaintiff or his solicitors and the third or fourth defendants until Mr Hounslow wrote to “CSR Emoleum Road Services” on 24 September 2009, which letter was returned, marked “return to sender”.[35]

[34]           JCB 39

[35]           JCB 40

37        By letter dated 20 August 2009, the TAC advised Mr Hounslow it was satisfied the plaintiff had suffered a “serious injury”, and a certificate to that effect was issued. The plaintiff’s Writ was issued on 7 October 2009.

38        Over the interim period between 2003 and 2009, Mr Hounslow arranged for the plaintiff to be examined by a number of consultant practitioners, obtained medical reports from treating practitioners and corresponded with the TAC on a number of occasions seeking an impairment assessment, and eventually a serious injury certificate.[36] Further, he obtained financial information in relation to the plaintiff’s claimed loss of earnings as a result of his injury and eventually, in November 2010, obtained an actuarial report from Cumpston Sarjeant.[37] That report assessed the plaintiff’s loss of earnings at something between $247,000 and $425,000, depending upon the scenario undertaken to assess the loss.

[36]           See affidavit of Mr Hounslow at JCB 37-39

[37]           JCB 151

39        In October 2005, the TAC assessed the plaintiff’s whole person impairment at 19 per cent.[38] However, it was not until 8 December 2008 that Mr Hounslow submitted a serious injury application, together with various medical reports in support, which commenced the process to obtain serious injury certification either by the TAC or by a court pursuant to s.93(4).[39] This was undertaken presumably on the basis that the plaintiff had not reached the required 30 per cent whole person impairment according to the various medical opinions. Of significance is a letter from Mr Hounslow of 4 December 2008 to the TAC.[40] The letter said:

“We are instructed to proceed with a serious injury application and we enclose a draft of that application herewith. We will forward a signed copy together with all supporting medical evidence shortly. Please confirm in the circumstances that your waiver policy will apply.”

[38]           JCB 97

[39]           JCB 114

[40]           JCB 113

40        The waiver policy referred to is a policy of the TAC that, providing a serious injury application is brought before the end of the six-year limitation period, the Commission would not subsequently rely upon a limitation defence in common law proceedings. What Mr Hounslow had not turned his mind to was that a common law claim against any one or all of the four defendants did not involve the TAC. As such, any waiver policy of the Commission was irrelevant. This is significant as, according to the plaintiff’s submissions, it was reasonable for Mr Hounslow to delay the bringing of the serious injury application in circumstances where there was uncertainty as to whether the injuries had stabilised, in particular, the lower back injury. In fact surgery to the lower back was not undertaken until November 2009. Further, according to Mr Jewell in submission, an examination of the plaintiff’s taxation returns did not show any significant financial loss over the years until 2009.

Prejudice to the Third and Fourth Defendants

41        Mr Clements, on behalf of the third and fourth defendants, argued there is very significant prejudice to his clients as a result of the delay in bringing the proceeding. In this regard, various affidavits filed on behalf of the third and fourth defendants attest to the enquiries made as to the transport accident, the personnel from the Emoleum partnership who were involved at the time and any documents in existence either as to the works carried out by the third and fourth defendants or the first and second defendants, or as to any contractual arrangements at the time as between the parties, including VicRoads. Various affidavits were filed as to the investigations made.[41] In my view, the investigations undertaken have been extensive and, as a result, I am satisfied as to the following:

[41]           See affidavits of Julia Cornock, sworn 4 April 2011 – JCB 197; Angela Wilkinson, sworn 25 March 2011 – JCB 237; Frazer Gill, sworn 30 March 2011 – JCB 253; Debbie Schroeder, sworn 21 April 2011 – JCB 261; and further affidavit of Julia Cornock, sworn 29 July 2011 – JCB 267

• Garry Millgate, said to be the contract manager of CSR Emoleum Road Services in February 2003, and who corresponded with the plaintiff around that time, cannot be located. The evidence does not establish whether Mr Millgate played any active role in the work undertaken on Boneo Road, but it is clear from the letters of 6 and 23 February 2003 that he made an investigation into the transport accident and contacted a representative of the first and second defendants;

• No documents have been located after investigation of all of the various corporate entities involved in the Emoleum partnership either to confirm what work was undertaken, or to evidence the contractual relationship between the various parties, including VicRoads;

• The enquires have failed to uncover any other personnel who might have been involved at the time, or who could throw light upon the extent to which the third and fourth defendants were involved in the road repairs, or were responsible for supervision, inspection, or maintenance of the works.

42        Mr Jewell, on behalf of the plaintiff, was critical of the investigations made by the third and fourth defendants, and the attempts to locate relevant personnel and documentation. He submitted:

• No search had been undertaken to determine whether a death certificate had issued in respect of Mr Garry Millgate;

• There had been no newspaper advertisements placed seeking to identify any persons involved in work carried out to Boneo Road at the relevant time;

• While Mr Millgate was involved in an investigation at the outset, there was no evidence to suggest that he was involved in the laying of the bitumen or any of the other relevant circumstances relating to the transport accident, and thus his absence from the proceeding would not be of significance;

• There were two sources of enquiry remaining open, Mr Ken Graham, an employee of Downer EDi[42] and Mr Keith Carew, senior executive of Holcim, and a former member of the CSR Emoleum management committee.[43]

[42]           JCB 198-199

[43]           JCB 255

43        However, I have concluded that the investigations and enquiries made by and on behalf of the third and fourth defendants were reasonable and adequate in the circumstances. While Mr Millgate may not have been an eye-witness to the road works carried out in December 2002, it would appear clear from the correspondence that he made an investigation of the circumstances close to the transport accident. He would thus be an important witness as to what those investigations revealed. I do not see the failure to place advertisements in the newspapers as a matter of any significance. While it is possible, in retrospect, to say that not every avenue of enquiry was pursued, I am of the view that every reasonable step was taken to attempt to locate relevant personnel and documentation. As a result, I am of the view the third and fourth defendants are significantly prejudiced in being able to respond to the claim made by the plaintiff. There is no documentation which can be located to determine the extent to which the third and fourth defendants had an obligation to supervise the first and second defendants in the performance of their subcontracting duties. That is an issue which would have clear relevance as to liability.

44        Further, a lack of any personnel available from the Emoleum partnership effectively prevents the third and fourth defendants from calling any evidence as to the nature and extent of the involvement of the third and fourth defendants in the bitumen repairs which took place in December 2002. Such a person might, for example, give evidence that every reasonable step as supervising contractor (if indeed that is what they were) was taken to ensure the work was properly carried out. While undoubtedly the onus lies with the plaintiff to prove the negligence of the third and fourth defendants, nonetheless absent any relevant evidence, either by former employees or as evidenced in documentation, leaves the third and fourth defendants in a difficult position in contesting the plaintiff’s allegations against them.

45        Further, I am of the view that with the lapse of time, the third and fourth defendants also suffer general prejudice of the type referred to by McHugh J in Brisbane South Regional Health Authority v Taylor.[44] His Honour referred to the deterioration in the quality of justice which may not even be recognisable by the parties.

[44] (1996) 186 CLR 541 at 551

46        For all of the above reasons, I am of the view the third and fourth defendants have suffered significant specific and general prejudice as a result of the delay.

Prejudice Suffered by the First and Second Defendants

47        The claim by the first and second defendants that they suffer specific prejudice by reason of the delay is somewhat more limited than that claimed by the third and fourth defendants. I was advised that contribution proceedings had been issued by the first and second defendants against the third and fourth defendants. Given no documents have been located by the third and fourth defendants, there is nothing to determine the nature and extent of the contractual obligations between the defendants in relation to the contractual services performed. For example, the third and fourth defendants may have been obliged to inspect the work carried out by the first and second defendants. The first and second defendants may then be able to “deflect” some blame towards the third and fourth defendants if they did not meet their contractual obligations in that regard. Mr Mc Williams submitted that would be an issue relevant not only to the principle proceeding, but the contribution proceeding.

48        The first and second defendants further point to general prejudice of the type referred to in Brisbane South Regional Health Authority v Taylor.[45]

[45]           supra

49        The first and second defendants argue for an “all in” or “all out” approach if the third and fourth defendants’ defence on the limitation point is accepted. Otherwise that would leave the first and second defendants solely liable to the plaintiff if he is able to prove his case.

50        While I am satisfied that there is prejudice to the first and second defendants given the lapse of time, I am of the view that it is in the nature of general rather than specific prejudice. There will be some prejudice to the first and second defendants in attempting to defend its actions at a time now over nine years since the occurrence of the transport accident. I am of the view that prejudice is not as significant as that suffered by the third and fourth defendants.

Conclusions

51 The most relevant matters to bear in mind in exercising the discretion to extend time pursuant to s.23A of the Act, in determining whether it is just and reasonable to do so, are:

• The steps taken, and/or the failure to take appropriate steps by the plaintiff and his solicitors to prosecute his claim;

• The prejudice suffered or likely to be suffered by the defendants as a result of the delay.

52 In respect of the first issue, the plaintiff argues that it was reasonable for the solicitor in the circumstances to wait a considerable time to determine whether the injuries suffered by the plaintiff in the transport accident would be sufficient to achieve the “serious injury” level required by s.93 of the Transport Accident Act. As Mr Jewell correctly stated the plaintiff has only one opportunity to satisfy that statutory test. The difficulties confronting Mr Hounslow were compounded, according to Mr Jewell, by the fact that the plaintiff’s lower back condition developed over a number of years and was, at least at the outset, overshadowed by the fracture to his left shoulder. There could be no doubt about the significance of the lower back injury given it led to spinal surgery in late 2009, but it developed over time and in the early years after the transport accident the shoulder was the major problem. This, said Mr Jewell, combined with the lack of clear evidence of significant loss of earnings, justified the plaintiff’s solicitor waiting for the physical injuries to stabilise before pressing the serious injury application.

53        In my view, while there is some merit in this submission, it does not take account of the fact that Mr Hounslow failed to press his client’s claim for a serious injury certificate at an earlier time. Aside from the left shoulder injury which, according to various doctors, (including Mr Carey retained by the TAC) in June 2005 caused the plaintiff to suffer stiffness and pain in the left shoulder and for his work capacity as a painter to be reduced. As early as November 2004, Mr Schofield expressed the opinion that the plaintiff had suffered an aggravation to underlying degenerative changes at L4-5 and that that condition required investigation by MRI scan. That request was repeated in his second report of October 2005. Dr Thomas was of the view the plaintiff had suffered an injury to his lumbar spine, probably at the L4-5 disc level.

54        While the lower spinal injury and the left shoulder fracture could not be combined as the one body function, at least by 2006 the injury to the left shoulder was significant, the plaintiff having undergone surgery and further procedures. While it is impossible to say whether a serious injury application launched in 2006 in respect of the plaintiff’s left shoulder, would have resulted in a serious injury certificate being granted by TAC or the Court, there ought to have been more urgency on the part of Mr Hounslow to prosecute the application. While the plaintiff’s back did not have surgical intervention until 2009 when an MRI scan showed the extent of the damage at the L4-5 disc, again had steps been earlier taken to investigate the back condition, then there ought to have been a hastening of that procedure to bring the matter before the Court. I accept the submission of Mr Jewell that the plaintiff’s loss of earnings as a result of one or both injuries was difficult to precisely quantify and even determine whether there was any loss. Nonetheless, most of the medical opinion obtained around that time was to the effect that the plaintiff’s capacity to undertake his painting work was affected.

55        In all these circumstances, the delay by the plaintiff’s solicitor in pressing to have either a serious injury certificate issued by the TAC, or an application made to the Court, cannot be explained by waiting for the injuries to stabilise or develop. Rather the position was that the plaintiff’s solicitor mistakenly took the view that providing the serious injury application was issued within the limitation time, the TAC would adopt its “waiver policy” in any subsequent common law proceedings. The solicitor failed to take into account that the proceedings were issued against parties other than those insured by the TAC. The whole history of the claim over the years from 2003 to 2009 shows a distinct lack of timely prosecution.

56        The right of a plaintiff against his solicitor for failing to take appropriate action in a limitation case is a matter to be weighed as one of the circumstances to take into account.[46] However, in the scheme of things, I do not view the conduct of the solicitor as being a matter of great significance. I have heard no evidence as to the advice given by Mr Hounslow to the plaintiff, or whether or not the plaintiff acted in accordance with any such advice. Professional negligence proceedings against solicitors are complex and costly. I am not able to determine whether or not the plaintiff would have a valid cause of action against the solicitor. In the scheme of things, any potential action against the solicitor is not a matter which weighs heavily in the balance.

[46]           Tsiadis v Patterson (2001) 4 VR 114 at 121

57        As stated, I am satisfied there would be significant specific prejudice suffered by the third and fourth defendants were the proceeding to continue against those parties.

58        Bearing in mind the matters to which I have referred above, and the prejudice to the third and fourth defendants, in my view it is not just and reasonable to extend the time within which the plaintiff’s action may be brought against the third and fourth defendants. Accordingly, that claim will be dismissed.

59        In my view, however, the situation is somewhat different in respect of the claim against the first and second defendants. The only specific prejudice claimed is the failure to be able to locate contractual documents either between VicRoads and the third and fourth defendants. While this is a matter to be taken into account, in my view it is unlikely to cause any significant prejudice to the first and second defendants.

60        I note from the report of Mr Munn, he was provided with sufficient information to enable him to form a view about whether or not the asphalt on the road at the time of the transport accident was capable of being in the condition which the plaintiff claimed. He was provided with early correspondence, photographs of the scene and DVD footage taken by the plaintiff in December 2002. According to his report, the bitumen material came upon the roadway as a result of a leak from a tanker. If that was the case, then, in my view, it would be a relatively straightforward matter to determine whether the first and second defendants were negligent in the circumstances in allowing that leak to occur, or failing to ensure it was properly repaired. Of course, the onus would rest with the plaintiff to prove the substance on the roadway caused or contributed to his loss of control of his motorcycle. I am not convinced that the failure to have available the documentation as the first and second defendants allege, would impair their capacity to properly defend the plaintiff’s claims.

61        I am further not convinced that the first and second defendants’ submission that if the claim is dismissed against the third and fourth defendants, it should likewise be dismissed against the first and second defendants. The plaintiff bears the onus of proving negligence or breach of duty by the first and second defendants. If another party was responsible, and not the first and second defendants, then it is difficult to see how blame or responsibility by that other party could be sheeted home to the first and second defendants.

62        Again, while the passage of time will lead to some general prejudice of the kind referred to in Brisbane South Regional Health Authority v Taylor,[47] that is, in my view, not sufficient to dismiss the claim against the first and second defendants.

[47]           supra

63        I further bear in mind the failure by the plaintiff’s solicitor to prosecute the serious injury application with all due speed. However again, that is not a matter determinative of itself. It is one of the circumstances to be taken into account in judging whether to extend the time would be just and reasonable.

64        I have concluded that it is appropriate to grant an extension of time in respect of the plaintiff’s claim against the first and second defendants. Whatever the prejudice, be it specific or general, in my view it is not such as to prevent the first and second defendants from properly defending the claim brought against them. The plaintiff has an arguable case for compensation at common law for the injuries sustained in the accident. If he is able to prove those injuries were caused by improper application of bitumen on the relevant part of the road, then he would be entitled to a significant award of compensation. In my view, it is just and reasonable that an extension of time be granted against the first and second defendants.

65        I shall hear the parties as to the terms of the orders and as to costs.

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