Haritos v Transport Accident Commission (Ruling)
[2018] VCC 949
•2 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-01461
| JOHN HARITOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 August 2017 | |
DATE OF RULING: | 2 July 2018 | |
CASE MAY BE CITED AS: | Haritos v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 949 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time within which to bring action – serious injury claim – exercise of discretion
Legislation Cited: Limitation of Actions Act 1958, s23A
Cases Cited:Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Incorporated v ADC [2016] HCA 37; Bell v SPC Ltd [1989] VR 170; Bell v SPC Ltd [1988] VR 123; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service & Anor [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Tsiadis v Patterson [2001] 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Holcombe v Hunt [2018] VSC 55
Ruling: Application for extension of time granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr J Valiotis | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr R H Stanley | Transport Accident Commission |
HER HONOUR:
The application
1 The plaintiff applies for an extension of time in which to bring a common law claim for damages in respect of the injury he alleges he suffered as a result of a transport accident on 16 April 2006. The applicable limitation period was six years from the date of the accrual of the action, and therefore expired on or about 15 April 2012.
2 The plaintiff asserts that as a result of the transport accident, he is suffering from injuries relating to his head, ankle and spine.
3 The defendant says the plaintiff’s application should be dismissed on three grounds.
(a) First, there has been delay on the part of the plaintiff in bringing his application;
(b) Secondly, there is likely to be prejudice to the defendant, both specific and general;
(c) Thirdly, that once the plaintiff knew of the act or omission by the defendant which gave rise to the damage, the defendant alleges the plaintiff did not act promptly.
Statutory framework
4 The Court has power under s23A of the Limitations of Actions Act 1958 (“the Act”) to extend the limitation period if it decides that it is just and reasonable to do so,[1] having regard to all of the circumstances of the case, including the matters listed in s23A(3).
[1]Section 23A(2) of the Act
5 Under s23A(3) of the Act, the 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.”
Relevant principles
6 Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[2]
[2]Per Beach JA in Marceta v Efandis [2016] VSC 265 at paragraph [11]; per Forrest J in Sparkes v Hylemit Pty Ltd [2016] VSC 453 at 333
7 In the High Court decision in relation to an application for extension of time of Brisbane South Regional Health Authority v Taylor[3] (“Brisbane South”), the majority determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[4]
“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Even where the cause of action relates to personal injuries,23 it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[5]
[3]Supra
[4](supra) at 552
[5]Supra
8 In the most recent case of Prince Alfred College Incorporated v ADC,[6] the High Court reaffirmed the significance of the two fundamental propositions established in its decision in Brisbane South. In a passage extensively footnoted to Brisbane South, the plurality recorded:
“First an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time ….
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case.”
[6][2016] HCA 37
9 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
·The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff;[7]
[7]Bell v SPC Ltd [1989] VR 170 at paragraphs [174]-[175]; Brisbane South (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]
·If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice;[8]
[8]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South (supra) at 547
·The competing considerations referred to in s23A of the Act are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period;[9]
[9]Bell v SPC Ltd (supra) at paragraph [125]; Tsiadis v Patterson [2001] 4 VR 114 at 123 and Delai v Western District Health Service & Anor (supra) at paragraphs [21]-[22]
· The question to be decided by the Court “requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them …”;[10]
[10]Per Booking J in Bell v SPC Ltd [1988] VR 123 at paragraphs [125]-[126]; cited with approval by Buchanan JA in Tsiadis v Patterson (supra) at paragraph [33]
·The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[11]
·The Court can take into account prejudice –
§ which comes about by reason of a lapse of time involved in that period of delay;[12] and
§ which can be established by the defendant;
·An inordinate delay may be taken as evidence of prejudice;[13]
·The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant;[14]
·In considering the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (“Gordon”),[15] Forrest J said:
“…In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’ ... .”
[11]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]
[12]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[13]Tsiadis (supra) at 123-124; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South (supra) at 551
[14]Brisbane South (supra) at 554-555
[15][2007] VSC 517 at paragraph [79]
The evidence
10 The plaintiff relied upon affidavits sworn by the plaintiff on 18 November 2015, 27 March 2017 and 18 August 2017, and the plaintiff’s solicitor’s affidavit dated 5 April 2017. The plaintiff was cross-examined.
11 The plaintiff’s evidence is that on 16 April 2006, he arrived late at a campsite where he met friends. He was the last to arrive, arriving after dark. Some of the other campers had been there a few days. After dinner the plaintiff recalled two men approached the campsite. They sought assistance with a broken down vehicle. Matthew Dunn volunteered to assist the men. Manny Kouzoukas said he would join them. The plaintiff agreed to go just in case there was trouble. The plaintiff was in the front passenger seat, Manny was seated behind the plaintiff and Matthew drove the vehicle. They travelled from the campsite to the broken down vehicle. Matthew was experienced with vehicles. He alone repaired the vehicle. On the return trip, Matthew’s driving was erratic. The plaintiff and Manny asked him on several occasions to slow down. Matthew lost control of the vehicle and collided with a concrete water tank. As a result of the collision, the plaintiff suffered injuries, including a loss of consciousness; facial injuries; a fracture of his left ankle, which required the insertion of pins; a fracture of his left eye socket, requiring a titanium plate, which was performed later at the Epworth Hospital; a fracture of the lower left side of his jaw and a fracture of the L4 vertebra. The plaintiff was taken to the Ballarat Hospital, where he underwent surgery. The plaintiff was off work for three to four months.
12 On 21 May 2006, the plaintiff lodged a Claim Form with the Transport Accident Commission (“the TAC”) for no fault benefits arising from the transport accident.
13 The TAC rejected his requests for treatment for his back. He was unsure how the system worked.
14 The plaintiff’s evidence was that he had been dealing with the TAC directly about his treatment and entitlements. He had never previously made a TAC claim, nor had he made a WorkCover claim. He did not understand he could sue the TAC for common law damages, nor was he aware that there was a six-year limitation period on such an action.
15 On 5 June 2012, the plaintiff consulted Mr Damian Lynch of Maurice Blackburn Lawyers in connection with payment of outstanding accounts and a letter he had received from the TAC dated 29 May 2012.[16] The plaintiff’s understanding from the letter was that he needed to act quickly in order to challenge the TAC’s refusal to pay his medical expenses. At the initial consultation with Maurice Blackburn, he was told he could challenge the TAC’s refusal to pay medical expenses at VCAT. The plaintiff was also provided advice in relation to pursuing an impairment benefit claim and a serious injury certificate for the purposes of a common law claim.
[16]Affidavit of plaintiff sworn 18 August 2017 at paragraph 8 (states date as 29 March 2012; however, it was agreed between the parties as 29 May 2012 and the letter annexed to affidavit is dated 29 May 2012)
16 Following the initial consultation with Mr Lynch, the plaintiff was provided with an initial letter of advice confirming the advice given in the conference. This letter was comprehensive – five pages long – and outlined:
· The plaintiff’s instructions in relation to the circumstances of the accident, his injuries and his treatment;
· The plaintiff’s instructions to challenge the TAC’s decision dated 6 June 2011 to refuse physiotherapy and any other treatment for his back injury, and enclosed a number of documents to sign;
· Provided advice to the plaintiff as to his entitlements arising from the transport accident;
· The six-year statute of limitations to bring a common law claim for damages had expired and advised an extension of time to bring proceedings could be sought. The letter outlined that the safest approach was to issue court proceedings requesting an extension of time and confirmed that this would involve a filing fee of $700 to be paid by the plaintiff. Further, if the plaintiff was unable to pay this amount, a letter could be written to the TAC putting it on notice that he would be requesting a serious injury certificate. The letter outlined that it was unclear whether the letter would be seen as sufficient to stop time from running if TAC refused to extend time;
· The plaintiff’s instructions to investigate his entitlement to an impairment benefit and serious injury certificate and confirmed a letter would be sent to the TAC putting it on notice that he was seeking to make these claims.
17 The plaintiff’s evidence was that he found it difficult to understand. He left matters in Mr Lynch’s hands and understood that Mr Lynch would pursue the case on his behalf.
18 The defendant conceded that the plaintiff had no prior understanding of the six-year limitation period before consulting with Mr Lynch at Maurice Blackburn on 5 June 2012.
19 The following steps were taken by Maurice Blackburn to pursue the plaintiff’s claim:
· On 6 June 2012, an application for review was lodged in relation to the TAC’s decision dated 6 June 2011 denying payment of physiotherapy treatment and liability for the plaintiff’s lumbar spine injuries.
· By letter dated 6 June 2012 to the TAC, it was put on notice of the plaintiff’s intention to pursue a common law claim in relation to his injuries.
· On 7 June 2012, a freedom of information request was made to the TAC.
· By letter dated 13 June 2012, the TAC wrote to the plaintiff’s solicitors requesting to know whether Maurice Blackburn will be formally requesting a serious injury certificate and whether the request will be made under Protocols.
· On 14 June 2012, a second freedom of information request was made to the TAC.
· On 14 June 2012, the plaintiff’s physiotherapy dispute application was sent to the TAC.
· On 16 July 2012, the plaintiff attended Mr Jonathan Hooper, orthopaedic surgeon, at the request of the TAC.
· On 25 July 2012, Maurice Blackburn, in response to a request from the TAC, informed it of its intention to proceed under the TAC Protocols and further, that the plaintiff’s serious injury claim would be assessed upon the receipt of further medical evidence.
· On 2 August 2012 by a written decision, the TAC advised it accepted liability for the plaintiff’s lumbar spine claim but still maintained their position in relation to the denial of physiotherapy treatment.
· On 7 January 2013, a request was made to the Victoria Police Freedom of Information Officer.
· On 14 February 2013, a letter was sent by the Freedom of Information Coordinator of the Victoria Police Freedom of Information Office, referring to a redaction of personal information in the Police brief of evidence.
· On 15 March 2013, a letter was sent to the Office of the Freedom of Information Commissioner requesting a review of the decision of 14 February 2013. On 16 April 2013, further information was released.
· On 30 April 2014, the TAC confirmed that the dispute in relation to physiotherapy treatment for the back injury had settled.
· As per the file note of Mr Lynch dated 20 June 2014, the plaintiff was advised that a costs agreement relating to the serious injury application would be on its way to him.[17] On 24 September 2014, the plaintiff confirmed that he had received the costs agreement for the serious injury application. On 9 June 2015, a signed copy of the costs agreement was received by the plaintiff’s solicitor.
[17]Affidavit of Canda Glanville dated 19 April 2017 at paragraph [86]
· On 10 December 2015, the plaintiff’s serious injury application pursuant to the Protocols was lodged.
· By letter dated 14 January 2016, the TAC rejected the plaintiff’s serious injury application.
· An Originating Motion was filed on behalf of the plaintiff on 13 April 2016.
· On 27 February 2017, a prehearing conference was held, during which the TAC granted the plaintiff a serious injury certificate.
20 I shall refer to the plaintiff’s evidence in the Analysis section of these Reasons. In short, I consider the plaintiff to be generally a reliable and credible witness. He told the Court he suffered from anxiety on occasions, which meant that he had difficulty processing the information he was receiving from his solicitors. On occasions, his brother-in-law, Mr Kipp, corresponded with the plaintiff’s solicitors on his behalf and attended conferences with the plaintiff and his solicitor. The plaintiff’s evidence was that he was a poor student at school. He completed Year 12 at Brighton Secondary School. In Year 12, he failed four subjects and passed one subject and received 22 out of 100 for his English exam. I formed the view that the plaintiff was easily overwhelmed and found it difficult to manage matters outside of his everyday experience. There was no attack as to the plaintiff’s credibility.
Analysis
21 Counsel for the plaintiff argued that it would be just and reasonable to extend the limitation period in all of the circumstances of the case.
22 The defendant relied upon s23A(3)(a), (b) and (e). I shall consider each of those subsections in turn.
(a) The length of and reason for the delay on the part of the Plaintiff
(i)The length of the delay
The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time. Given the plaintiff’s cause of action arose on 15 April 2006 and his Originating Motion was filed on 12 April 2016, the delay is ten years.
(ii)The reason for the delay
The TAC accepted that the plaintiff had no prior understanding of the six-year limitation period before consulting with Maurice Blackburn on 5 June 2012.
Counsel for the defendant relied upon the delays the plaintiff incurred in failing to sign and return various costs agreements throughout the various stages of the proceedings to his solicitors which delayed the process of proceedings. I was informed by counsel for the plaintiff that there were four costs agreements: for the Victorian Civil and Administrative Tribunal proceedings, the impairment benefit claim, the serious injury application and the Originating Motion process. There was a delay of sixteen months between the date the plaintiff was forwarded a costs agreement on 15 April 2013 in relation to the impairment benefit claim and the date the TAC received the impairment benefit claim on 27 August 2014.
There was a further delay caused by the plaintiff failing to sign and return the serious injury costs agreement of ten months, and a delay of three months in the plaintiff failing to sign the costs agreement relating to the Originating Motion, which was filed on 12 April 2016.
23 The plaintiff said that he recalled being contacted for a follow up in relation to returning the costs agreements but he felt overwhelmed by it all.
24 In relation to the delay in signing and returning the impairment benefit claim costs agreement, the plaintiff said:[18]
“… at the time I was just paralysed with indecision, there was a lot going on in my life so it was an extra burden, just another decision to make. So - I was going through a rough time at the time.”
[18]Transcript 32, Lines 14-18
25 The plaintiff gave evidence that he did not understand all the implications of not returning the signed costs agreements and that the documentation, including the costs agreements, were large documents.[19]
[19]Transcript 34, Lines 9-10 and Lines 2-27
26 I accept that there were delays by the plaintiff in returning some of the costs agreements. However, the delays must be considered in context. The TAC accepted that the plaintiff had no knowledge of the limitation period until June 2012. The TAC was notified on 6 June 2012, two months after the expiration period, that there was at least a prospect of a serious injury application that will be pursued according to the TAC’s Protocols.
27 According to the TAC’s Protocols at the time of the plaintiff’s accident, a serious injury application cannot be commenced until the impairment benefit claim has been commenced. The impairment benefit claim cannot be commenced until the relevant injuries have been accepted. On 2 August 2012, the TAC accepted liability for the plaintiff’s lumbar spine injury but maintained their position in relation to the denial of treatment for the spinal injury. The dispute was settled on 30 April 2013. I accept that the TAC did not accept both injuries until 30 April 2013.
28 I accept that the plaintiff could not have commenced an impairment benefit claim prior to the TAC accepting both of his injuries, which was on 30 April 2013.
29 Given the nature of the plaintiff’s injuries, time was required to investigate whether or not there was a closed head injury. The plaintiff was provided with a costs agreement in relation to the impairment benefit claim on 15 April 2013. The plaintiff’s solicitor made several attempts to follow up with the plaintiff, the last of which was on 20 June 2014[20] with regards to the impairment benefit costs agreement. Ultimately the plaintiff provided his solicitor with a statement necessary for his impairment benefit claim on 18 August 2014, and an impairment benefit claim was received by the TAC on 27 August 2014, a delay of sixteen months.
[20]PCB 90M
30 The serious injury application was lodged on 10 December 2015. By 14 January 2016, the TAC rejected the serious injury application. On 12 April 2016, the plaintiff’s solicitor filed an Originating Motion. At a pre-hearing conference on 27 February 2017, the TAC granted a serious injury certificate.
31 Between June 2012 and December 2015, the plaintiff’s solicitor took the following steps:
· A Notice of Application for Review was forwarded to the Victorian Civil and Administrative Tribunal;
· An Application for Dispute Resolution was served on the TAC in relation the TAC’s decision of 6 June 2011;
· Requested the plaintiff attend medical appointments arranged by the TAC;
· Obtained medical evidence to progress the plaintiff’s claim for the purposes of the impairment benefit claim;
· Requested information from the TAC to follow up dispute application material.
(b)The extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
32 Counsel for the defendant submitted that it was prejudiced because the driver of the motor vehicle, Mr Matthew Dunn, died in November 2013 and the police file relating to the transport accident has been destroyed.
(i)The death of the driver of the vehicle, Mr Matthew Dunn
33 The plaintiff’s claim is based on an allegation of negligent driving of the proposed defendant, Mr Matthew Dunn. Mr Dunn is now deceased, having passed away on 15 November 2013. This was fifteen months after the TAC was on notice of the likely common law claim and seven months after the injuries were accepted by the TAC.
34 The circumstances of the accident suggest that negligence is unlikely to be in dispute. The plaintiff was a passenger in the deceased’s vehicle; there was no other vehicle involved in the accident. The deceased driver was prosecuted for recording a blood alcohol reading in excess of 0.05 per cent. I refer to the affidavit of the plaintiff as to the circumstances of the accident, the contemporaneous police brief of evidence and the statement of Mr Manuel Kouzoukas, a passenger in the vehicle, at the time of the accident. These statements suggest there is minimal prejudice from any lack of precision of recollection of the accident circumstances from an independent source.
35 Counsel for the defendant submitted that if the proceedings had been issued earlier, for example in February 2013 when the plaintiff was aware of the time limitation following the advice he was given by his solicitor, Mr Dunn was still alive and he may have been able to provide evidence of a volenti non fit injuria/contributory negligence defence based on the possible knowledge by the plaintiff of the driver’s excessive alcohol consumption before the plaintiff got into the car. However, if Mr Dunn were alive, he could only give evidence of his knowledge of the circumstances surrounding the incident; he would not be able to give evidence in relation to the plaintiff’s alleged knowledge.
36 Further, the plaintiff’s evidence is that he was the last to arrive at the campsite, and arrived after dark. He set up his campsite and cooked dinner. Mr Dunn drove to assist the travellers with their vehicle and it was Mr Dunn who was able to get the travellers’ vehicle started. The evidence of both the plaintiff and Mr Kouzoukas is that they were unaware and noticed nothing amiss. Mr Kouzoukas said he would not have got into the vehicle if he considered Mr Dunn was affected by alcohol.
37 Further, in June 2012, the plaintiff’s solicitors notified the TAC of a possible serious injury application. On 30 April 2013, the TAC accepted liability for both injuries. The serious injury proceedings could not have been commenced earlier, as the TAC Protocols require the impairment benefit claim to be commenced prior to pursuing a serious injury certificate and the impairment benefit claim could not be commenced until the TAC accepted all of the plaintiff’s injuries, which was on 30 April 2013.
(ii)The absence of the complete police file
38 The other specific prejudice relied upon is the absence of the complete police file. This was a situation where the police did not attend the scene and their principal involvement was a prosecution of Mr Dunn following statutory reporting of a hospital blood alcohol reading in excess of .05 per cent.
39 In January 2013, the plaintiff’s solicitor made an application to Victoria Police under the Freedom of Information Act. The Freedom of Information Coordinator of Victoria Police responded, releasing some documents in full, denying some documents in part and denying some documents in full. On 15 March 2013, the plaintiff’s solicitor requested a review of the 14 February 2013 decision. On 16 April 2013, further information was released by the Freedom of Information Commissioner following the request for review.
40 The submission of the defendant assumes that it would have been successful on challenging the decision to obtain the remaining documents. There was no reasoning to support this submission. Further, from the documents contained in the Defendant’s Court Book, it is apparent that the TAC has obtained a statement of the Senior Constable. Further, the TAC has engaged Maurice J Kerrigan & Associates, who have obtained statements from people who were camping in the area at the time, including the other passenger in the vehicle, Mr Kouzoukas.
41 For the above reasons, I do not accept that there is significant prejudice to the defendant as a result of the absence of Mr Dunn’s evidence and the lack of the complete police file.
(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.
42 The plaintiff has always done as advised. He commenced to receive advice from his solicitor in June 2012 and continued to receive advice in relation to several matters involving his TAC claim, including the dispute in relation to the payments for physiotherapy treatment and all treatment relating to the back injury, the impairment benefit claim, the serious injury application and the originating motion process. I accept that the plaintiff has acted on the advice of his solicitors; however, he has experienced difficulty in promptly providing requested documents. The plaintiff did not experience difficulty in acting on his solicitor’s advice where he was required to attend appointments. The plaintiff did however experience difficulty in comprehending lengthy and complex paperwork such as costs agreements. Forrest J, in Davies v Nilsen,[21] said:
“… it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. … .”
[21][2015] VSC 584 at paragraph [106]
43 The plaintiff is a man with limited education and no understanding of the legal process in such claims. Whilst I accept counsel for the defendant’s submission that the plaintiff’s solicitor used simple language when corresponding with the plaintiff, it does not take away from the fact that legal costs agreements are complex and difficult documents for a lay person with no legal knowledge to understand. In addition, in this case, the plaintiff was required to sign a number of costs agreements which, in any view, would have been confusing for a person with limited education, particularly one who suffered from anxiety on occasions. Further, I take the view that managing such correspondence is outside the plaintiff’s everyday experience.
44 In relation to the delays in returning the various costs agreements, the plaintiff said that he understood there were considerable delays, but believed they were caused by the TAC contesting his case on all points. I accept that the delays in returning the various costs agreements were due to the plaintiff’s conduct and was not caused by the TAC contesting the case. I take the view from the plaintiff’s evidence that he found it difficult to differentiate between the different aspects of his claim, each with their own costs agreements, namely the dispute for physiotherapy treatment at VCAT, the impairment benefit claim, the serious injury application and the originating motion process.
45 The plaintiff attended all medical appointments he was required to, upon both the request of his solicitors and the TAC.
Conclusion
46 I accept that the plaintiff was not aware of any statutory time limitation in relation to a common law claim for damages until consulting Mr Lynch of Maurice Blackburn Lawyers on 5 June 2012, and had not sought any legal advice in relation to this transport accident which occurred on 16 April 2006.
47 I accept that the plaintiff caused delays in signing and returning the various costs agreements, which ultimately caused a delay in the serious injury proceedings. In particular, the plaintiff caused delays in signing and returning the costs agreements relating to the impairment benefit claim and the serious injury application.
48 What is in issue is whether there is significant prejudice to the defendant, and whether an acceptably fair trial can be had if the plaintiff is granted leave to bring his claim for common law damages out of time.[22] However, as Dixon J said in Holcombe v Hunt,[23] the Court is required to synthesise the material considerations when determining whether it is reasonable to extend the period of time.
[22]Gordon (supra) at paragraph [79]
[23][2018] VSC 55 at paragraph [42]
49 Whilst the plaintiff did not commence this application until 12 April 2016, the defendant was on notice that the plaintiff sought a serious injury certificate as of 5 June 2012, which was two months after the expiration of the statutory time limitation.
50 In my view, whilst there were considerable delays caused by the plaintiff after 5 June 2012, the process of pursuing a serious injury certificate for the purposes of common law damages was followed by the plaintiff. The plaintiff was cooperative in attending all medical appointments scheduled for him by both his solicitor and the defendant. The plaintiff had difficulty with understanding the complex nature of the costs agreements provided to him, and I accept that he was not able to distinguish between the various aspects of his claim.
51 The claim by the plaintiff against the defendant is based on an allegation of negligent driving by the proposed defendant, Mr Dunn. The plaintiff’s allegations of negligence are relatively simple and straightforward, relating to an accident involving one vehicle in which he was a passenger. Another passenger in that vehicle is alive and has provided a statement, and a contemporaneous police brief is available. This is a situation where the police did not attend and their principal involvement was a prosecution of Mr Dunn following statutory reporting of a hospital blood alcohol reading in excess of 0.05 per cent.
52 Further, I take the view that although not all of the documents from the police brief are now not available, there is sufficient documentation which the defendant has sought, and the documents which have now been destroyed do not cause a significant prejudice to the defendant.
53 In relation to the submission that the driver of the vehicle, Mr Dunn, is no longer able to give evidence in relation the circumstances of the accident, the defendant is not significantly prejudiced by this, as the defendant has been able to obtain statements in relation to the circumstances of the accident from other witnesses camping nearby and from the other passenger in the vehicle, Mr Kouzoukas.
54 Taking into account all of this material, I am satisfied that if the limitation period is extended, the defendant will receive a fair trial.
55 Synthesising all of the materials required to be taken into account by s23A of the Act, I formed the view that it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relied for bringing a claim against the defendant.
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