Hassan v Noa (No 2)

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2017 00417

ZAHRA HASSAN BY HER ADMINISTRATOR STATE TRUSTEES	Plaintiff
v
DAVID NOA	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2021
DATE OF RULING:	17 June 2021
CASE MAY BE CITED AS:	Hassan v Noa (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 339

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LIMITATION OF ACTIONS – Transport accident – Personal injuries – Application for extension of time during which action may be brought – Delay – Delay between accrual of cause of action and application – Reasons for delay – Prejudice – Whether extension of time should be granted – Limitation of Actions Act 1958 (Vic) ss 5(1)(a), 23A – Transport Accident Commission v Murdoch (2020) 92 MVR 1 – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. D. B. Ingram QC with Ms M. Pilipasidis	Slater & Gordon Ltd
For the Defendant	Mr C. J. Blanden QC with Ms A. Bannon	Transport Accident Commission

TABLE OF CONTENTS

Evidence............................................................................................................................................... 1

Background......................................................................................................................................... 6

Plaintiff’s submissions................................................................................................................... 13

Length of and reasons for the plaintiff’s delay....................................................................... 13
Prejudice....................................................................................................................................... 14
Other circumstances................................................................................................................... 16
Submissions in reply................................................................................................................... 16

Defendant’s submissions............................................................................................................... 17

General prejudice of delay......................................................................................................... 17
Specific prejudice of delay......................................................................................................... 18
Causation...................................................................................................................................... 19
Duration of disability................................................................................................................. 20
Whether there was prompt action by the plaintiff................................................................. 22
Prejudice to the plaintiff is irrelevant....................................................................................... 22

Applicable principles...................................................................................................................... 23

Analysis.............................................................................................................................................. 24

Length of and reasons for the plaintiff’s delay....................................................................... 24
Prejudice to the defendant......................................................................................................... 25
Extent the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to her cause of action.......................................................... 30
Duration of any disability of the plaintiff arising on or after the date of accrual of the cause of action................................................................................................................................... 30
Extent to which the plaintiff acted promptly and reasonably once she knew the acts or omissions of the defendant, to which her injuries were attributable, might be capable at that time of giving rise to an action for damages............................................................................... 31
Steps, if any, taken by the plaintiff to obtain medical, legal or other advice and the nature of the advice he received............................................................................................................. 32
Other circumstances................................................................................................................... 32
Synthesising competing considerations.................................................................................. 32

Conclusion......................................................................................................................................... 33

HER HONOUR:

The plaintiff’s life has been very challenging. She has suffered from homelessness, illness and addiction issues. The plaintiff was injured in a transport accident in 2005. She did not take any steps to obtain legal advice until almost nine years’ later. Legal proceedings were then instituted on her behalf. The plaintiff wants to pursue an action for damages. However, the period in which she could do so expired almost ten years ago. The plaintiff has now made an application to extend time so that she can pursue her damages claim. The defendant opposes the application, chiefly on the ground that he has been prejudiced by the plaintiff’s delay in bringing her application.

The issue for determination in this ruling is whether time should be extended pursuant to s 23A of the Limitations of Actions Act 1958 (‘LAA’). I find that it should for the following reasons.

Evidence

The plaintiff relies on:

(a) her affidavits sworn on 16 April and 26 September 2019 and 17 February 2021; and

(b) affidavits of her solicitor, Ms Betty Alexopoulos, sworn on 21 December 2017 (‘Alexopoulos 21 Dec 17 affidavit’), 31 January 2018, 21 November 2019 and 11 February 2020.

The plaintiff filed written submissions on 1 October 2019, supplementary submissions on 26 April 2021 and submissions in reply on 10 May 2021.

The defendant relies on affidavits of his solicitors:

(a) Ms Simone Leith, sworn on 21 May (‘Leith 21 May 19 affidavit’), 9 September (‘Leith 9 Sept 19’) and 19 November 2019 (‘Leith 19 Nov 19 affidavit’) and 28 November 2019 (‘Leith 28 Nov 19 affidavit’); and

(b) Mr Nick Tsongas, sworn on 7 May 2021 (‘Tsongas 7 May 21 affidavit’).

For completeness, the Leith 21 May 19 affidavit exhibits an affidavit of the plaintiff sworn on 28 October 2015. The plaintiff did not seek to rely on that affidavit for the purpose of this application.

The defendant filed an outline of submissions on 25 May 2019 and a further outline of submissions on 26 April 2021.

Although he had been expected to do so, the defendant did not present for cross‑examination. His solicitors did not seek to rely upon his affidavit sworn on 18 December 2020. It is inadmissible for the purposes of this application.

Further, the parties agreed that paragraphs 7–10 of the Leith 9 Sept 19 affidavit ought not be admitted into evidence. Those paragraphs refer to the defendant’s supposed recollection of events. Those paragraphs are inadmissible for the purposes of this application.

Additionally, the plaintiff objected to the following paragraphs. I shall now address each objection, with my ruling immediately following.

(a) Paragraph 28 of the Leith 21 May 19 affidavit and exhibit ‘SL-10’ to that affidavit, being the Transport Accident Commission (‘TAC’) claim form. This paragraph refers to the TAC claim form and cites part of it. The parties agree the form is a business record of the TAC. The plaintiff says the TAC is not a party to the proceeding and so the claim form should not be admitted as a business record. The plaintiff says that the defendant cannot be cross-examined on the claim form and given that it is untested as to its veracity, it is of so little weight that it is not admissible here. On the other hand, the defendant says the TAC claim form is admissible as a business record and can be tendered on that basis. It is a matter of how much weight it should be given. There is not such little weight that it should not be accepted. The defendant’s memory is untested.

I disallow the plaintiff’s objection to paragraph 28 and Exhibit ‘SL-10’. Section 48(1)(e)(i) of the Evidence Act 2008 provides that parties may adduce evidence of the contents of a document by tendering a document that ‘forms part of the records of or kept by a business’. Business is defined widely in the Evidence Act and may encompass the TAC.[1]
[1]A reference to a ‘business’ in the Evidence Act 2008 includes activities engaged in by a person or body exercising power under an Australian law, begin an activity engaged in or carried on in exercise of the power (otherwise than in a private capacity): see cl(1)(d), pt 2, Dictionary, Evidence Act.
There are circumstances where an exception to the hearsay rule applies to a document forming part of the records kept by an organisation, in the course of its business, and where that document contains a representation recorded in the course of the business: see s 69(2) of the Evidence Act. It matters not that the TAC is a non-party. A business record can include routine record-keeping including information supplied to a business by its customers.[2] In Charan v Nationwide News Pty Ltd,[3] J Forrest J referred to the breadth of records that may be covered:
[2]Lin v Tasmania [2012] TASCCA 9, [83]-[97].
[3][2018] VSC 3.
…the distinction between ‘product’ and ‘records’ is problematic. It does not appear in s 69(1) [of the Evidence Act]. The language used in the provision is broad and appears to encompass any documents kept by a person, or body or organisation ‘in the course of, or for the purposes of, a business’. To exclude documents that are part of the records of an organisation, however generated and for whatever purpose under this provision (as opposed to a subsequent discretionary exclusion under s 135) involves, I think, an artificial distinction not covered by the wording of the section.[4]
[4]Ibid [463] (citation omitted). See also Tran v Nominal Defendant (2011) 58 MVR 462 where a diagram drawn by a constable investigating a motor vehicle accident was held to be a business record.

I am satisfied that the TAC claim form is a ‘business record’ and that s 69(2) of the Evidence Act is applicable. The TAC claim form is titled ‘general claim for compensation under the Transport Accident Act 1986’ and contains a series of typed questions. The defendant is the claimant. The answers to questions regarding the name of the claimant, vehicle registration number, date and location of accident are typed, as is the first sentence describing the accident and part of the description of injuries. Many of the answers are handwritten. The form includes a declaration that is signed by the defendant, witnessed and dated. I am satisfied that the defendant made the representations on the claim form as a person who ‘had or might reasonably be supposed to have had personal knowledge of the asserted fact’. Here, the unavailability of the defendant to be cross-examined affects how the evidence is to be weighed, not whether it is inadmissible. I accept there is a TAC form with the defendant as a claimant in existence. However, given the defendant’s unavailability, despite being on notice, I do not accord the answers on the TAC claim form any weight at all.

(b) Paragraph 5 of the Leith 9 Sept 19 affidavit refers to the solicitor’s conversation with the defendant and what the defendant says about his memory of events. The plaintiff says that as the defendant did not present for cross‑examination, the paragraph is in admissible. The defendant says it has been 13 years and 10 months since the accident and the paragraph appears to be more of an assessment by the deponent than a recounting of the defendant’s evidence. I will allow the objection. Paragraph 5 contains hearsay evidence. It is inadmissible.

(c) Paragraph 6 of the Leith 9 Sept 19 affidavit refers to paragraphs 25‑30 of the Leith 21 May 19 affidavit. The plaintiff says paragraph 6 is inadmissible because it includes reference to paragraph 28 of the Leith 21 May 19 affidavit. The analysis above applies. As paragraph 28 is admissible, the plaintiff’s objection on that basis is disallowed.

(d) Paragraph 12 of the Leith 9 Sept 19 affidavit contains an opinion of the solicitor that the defendant is likely to be prejudiced and refers to the defendant’s memory of events. The plaintiff says that the paragraph is inadmissible for the same reason, namely the defendant is not available to give evidence. The defendant accepts it is a matter of weight but does not accept that it is of so little weight that it should not be accepted. I will allow the objection. Paragraph 12 contains hearsay evidence. It is inadmissible.

(e) Paragraph 13 of the Leith 9 Sept 19 affidavit refers to the defendant’s memory. The plaintiff objects to this paragraph as the defendant is not available to give evidence. The defendant says it is an assessment by the deponent of the affidavit not an assessment of evidence.

I will allow the objection. Paragraph 13 contains an opinion as to the defendant’s evidence. It appears to be at least partly based upon a telephone conversation with the defendant. The substance of that conversation is not in evidence. Additionally, even if it was admissible, it could not be accorded any weight given that there is no admissible evidence in respect of the substance of the telephone conversation between solicitor and defendant.

(f) The first sentence of paragraph 4 of the Leith 28 Nov 19 affidavit. This sentence refers to a telephone conversation with the defendant. The plaintiff says that it is inadmissible as the defendant is not available to give evidence. The defendant says this sentence does not contain the substance of the conversation but deposes to a straightforward matter, being the telephone conversation.

I disallow the plaintiff’s objection. Here, the solicitor is deposing to having spoken to the defendant by telephone on a certain date. That evidence is admissible.

(g) The second sentence of paragraph 4 of the Leith 19 Nov 19 affidavit is similar to the sentence in paragraph 9, discussed immediately below. The same analysis applies. The objection is disallowed. The evidence is admissible.

(h) Paragraph 9 of the Leith 19 Nov 19 affidavit. The solicitor deposes to having a telephone conversation with the defendant. The solicitor deposes that despite having spoken with the defendant on one occasion, the defendant is likely to be prejudiced. The solicitor deposes that despite many attempts, the defendant is now unable to be contacted. The plaintiff says it is inadmissible as it is based upon one telephone conversation. The defendant says that this is a timing issue. [There is later affidavit evidence regarding contact with the defendant.]

I allow the plaintiff’s objection. The same analysis applies as above. The solicitor’s opinion appears at least partly based upon a telephone conversation with the defendant. The substance of that conversation is inadmissible. The objection is allowed. Additionally, even if it was admissible, it could not be accorded any weight given that there is no admissible evidence in respect of the substance of the telephone conversation between solicitor and defendant, and, moreover, the defendant’s solicitors later filed evidence regarding contact with the defendant.

(i) Paragraph 3 of the Tsongas 7 May 21 affidavit refers to evidence in the defendant’s affidavit. The plaintiff objects to it on the basis that it imports that evidence and the defendant is not able to be cross-examined to verify the contents of the information. The defendant says it is just referring to another affidavit.

I allow the plaintiff’s objection. This paragraph contains hearsay evidence. It refers to the defendant’s evidence in his affidavit. That affidavit is not admissible.

Background

On 13 November 2005, the plaintiff sustained injuries in a transport accident (‘the accident’).[5] The plaintiff deposes that she was taken from the scene by ambulance to the Alfred Hospital and had surgery for a fracture to her left humerus.[6] The plaintiff deposes she also sustained injuries to her left leg, abdomen and a head injury. On 17 November 2005, the plaintiff was discharged from hospital.[7]
[5]Plaintiff’s affidavit sworn on 16 April 2019, [4] (‘plaintiff’s 16 Apr 19 affidavit’).
[6]Plaintiff’s 16 Apr 19 affidavit, [5].
[7]Ibid [6].

On 14 November 2005, the plaintiff completed a claim for TAC benefits which the defendant received on 16 November 2005.[8] The plaintiff deposes:

During my time in hospital I recall being asked by a social worker from the hospital to sign a Transport Accident Commission claim form, which I understood was lodged by the hospital on my behalf with the Transport Accident Commission (“the Commission”). It was my understanding that the paperwork submitted to the Commission was to enable the Commission to pay the cost of my hospitalisation and for my medical treatment following the accident. At no stage when I completed the claim form did I speak to a lawyer or receive any legal advice, and I did not have any understanding of my entitlements to compensation other than that the Commission would pay for my medical treatment.[9]

[8]Affidavit of Simone Leith sworn on 21 May 2019, [4] (‘Leith 21 May 19 affidavit’); Exhibit ‘SL1’ to the Leith 21 May 19 affidavit.

[9]Plaintiff’s 16 Apr 19 affidavit, [7].

On 27 November 2005, the plaintiff returned to the hospital with severe abdominal pain.[10] The plaintiff deposes that she understands she had a large pelvic abscess which required drainage and a laparotomy that day. The surgery left a large scar over her abdomen. On 4 December 2005, the plaintiff was discharged from hospital.
[10]Ibid [8].

By letter dated 1 December 2005, TAC wrote to the plaintiff advising her of the TAC’s acceptance of her claim for medical and other reasonable expenses arising from the accident.[11] The defendant’s solicitor deposes:

The defendant funded ambulance expenses incurred on 13 November 2005 as a result of the transport accident.
The defendant also funded Alfred Hospital expenses in respect of the plaintiff’s admission between 13 November 2005 and 17 November 2005.
The plaintiff did not claim, and the defendant did not fund any further treatment between 17 November 2005 and 2015.[12]

[11]Leith 21 May 19 affidavit, [7]; Exhibit ‘SL2’ to the Leith 21 May 19 affidavit.

[12]Ibid [8]–[10].

The plaintiff deposes as to intervening events leading to an admission at Box Hill Hospital for complications associated with deep vein thrombosis (‘DVT’) in 2010.[13] The plaintiff deposes:

In order to feed my addiction I broke the law and found myself in trouble with the police. The father of one of my children, [name] (“Rick”) tried to assist me with my police matters. It was during this period that Rick suggested that I may have compensation rights given the extent of my injuries and ongoing problems from my injuries, and it was then that I contacted Slater & Gordon Lawyers in or about December 2014. I first spoke to Ms Joanne Panagakis by phone on 16 December 2014 and she told me that I had common law rights and that there is a 6 year limitation period to pursue such rights. I then instructed Slater & Gordon Lawyers to act on my behalf and to pursue my rights to compensation and damages at common law.

I understand that I have the right to pursue damages at common law but because of the limitation period I need leave to commence proceedings. Until I spoke to Ms Panagakis I did not know that I had rights to common law damages. It was my understanding that the extent of any assistance from the Commission was for medical treatment. I did not know that I could pursue damages.[14]

[13]Plaintiff’s 16 Apr 19 affidavit, [12].

[14]Ibid, [17]–[18].

The parties agree that the limitation period expired on 13 November 2011.

On 5 December 2014, the plaintiff approached Slater & Gordon and a phone appointment was scheduled with Ms Joanne Panagakis on 8 December 2014. On 15 December 2014, Ms Panagakis twice unsuccessfully attempted to contact the plaintiff by phone. The plaintiff was not contactable.[15]
[15]Affidavit of Betty Alexopoulos sworn 21 Dec 17, [4] (‘Alexopoulos 21 Dec 17 affidavit’).

By letter dated 16 December 2014, Ms Stephanie Chung, solicitor at Slater & Gordon, wrote to the plaintiff to confirm her appointment at 3.00pm on 23 December 2014 at their office.[16]
[16]Ibid [5]; Exhibit ‘BA-1’ to the Alexopoulos 21 Dec 17 affidavit.

By letter dated 22 December 2014, Ms Chung informed the TAC that the plaintiff intended to lodge a serious injury application with an impairment application (‘the 22 Dec 14 letter’).[17] The TAC was placed on notice that the common law statute of limitation period had expired. The TAC was requested to inform the plaintiff whether it was prepared to resist from alleging further prejudice in respect of the common law period. The defendant received that letter on 6 January 2015.[18]
[17]Ibid [6]; Exhibit ‘BA-2’ to the Alexopoulos 21 Dec 17 affidavit.
[18]Leith 21 May 19 affidavit, [11]; Exhibit ‘SL3’ to the Leith 21 May 19 affidavit.

On 23 December 2014, the plaintiff attended the offices of Slater & Gordon and formally signed a conditional costs agreement instructing it to act.[19]
[19]Alexopoulos 21 Dec 17 affidavit, [7].

On 6 January 2015, Ms Chung signed instructions to the registration clerk to file an originating motion in the County Court of Victoria in order to preserve the plaintiff’s rights with respect to pursuing an application in accordance with s 93 of the Transport Accident Act for the injuries the plaintiff sustained in the accident.[20]
[20]Ibid [9]–[10].

On 6 January 2015, the plaintiff filed an originating motion in the County Court.By letter dated 16 January 2015, Slater & Gordon served the originating motion on the TAC.[21]
[21]Leith 21 May 19 affidavit, [12]; Exhibit ‘SL4’ to the Leith 21 May 19 affidavit.

By letter dated 4 February 2015 in response to the 22 Dec 2014 letter from the plaintiff’s solicitor, the TAC wrote to Ms Chung that it was unable to agree to the request.[22] That is, the TAC did not agree that it would suffer no further prejudice from that date, being 22 December 2014.
[22]Alexopoulos 21 Dec 17 affidavit, [10]; Exhibit ‘BA-3’ to the Alexopoulos 21 Dec 17 affidavit. Leith 21 May 19 affidavit, [13]; Exhibit ‘SL5’ to the Leith 21 May 19 affidavit. The letter contains a typographical error in date of the plaintiff’s letter, it should read 23 December 2014.

A series of medico-legal appointments were then arranged with Mr Moran on 20 July 2015, Mr Stapleton on 20 July 2015, Ms Mullaly on 21 July 2015, Dr Serry on 21 July 2015, Mr Gerschman on 28 July 2015 and Professor Starke on 28 September 2015.[23]
[23]Alexopoulos 21 Dec 17 affidavit [11].

By letter dated 24 February 2015, the TAC wrote to Slater & Gordon enclosing ‘proposed consent orders to vacate the hearing date for an administrative mention in 3 months’ time to allow further time for the parties to try and resolve this matter pursuant to the protocols’.[24]
[24]Ibid [12]; Exhibit ‘BA-4’ to the Alexopoulos 21 Dec 17 affidavit.

On 14 July 2015, a conference was arranged with the plaintiff. She failed to attend.[25] Unsuccessful attempts were made to contact the plaintiff. On 17 July 2015, contact was made with the plaintiff’s former partner who advised that she was in hospital with deep vein thrombosis (‘DVT’). He requested the appointment details be arranged through him.
[25]Ibid [13].

By email dated 21 July 2015, details of further appointments arranged with Mr Moran, Mr Stapleton and Dr Serry and were sent to the plaintiff’s former partner.[26]
[26]Ibid [14].

On 21 September 2015, the plaintiff failed to attend an office appointment at Slater & Gordon’s office.[27] The plaintiff’s former partner was contacted and a further appointment was rescheduled for 28 October 2015. The plaintiff also failed to attend a medico-legal appointment with Mr Paul Desmond, gastroenterologist.
[27]Ibid [15].

On 28 October 2015, the plaintiff conferred with Ms Yagmur Sabedin, solicitor, at the offices of Slater & Gordon.[28] The plaintiff deposed an affidavit in support of the plaintiff’s application pursuant to s 93 of the Transport Accident Act. That affidavit is contained in exhibit ‘SL-14’ to the Leith 21 May 19 affidavit. The plaintiff instructed Ms Sabedin to amend the originating motion to include relief under s 23A of the LAA.
[28]Ibid [16].

By letter dated 16 November 2015, from Ms Jane McCullough, associate at Slater & Gordon, to Ms Simone Leith at the TAC, the plaintiff proposed consent orders to amend the originating motion to include relief pursuant to s 23A of the LAA.[29]
[29]Ibid [17]; Exhibit ‘BA-5’ to the Alexopoulos 21 Dec 17 affidavit.

On 2 December 2015, Slater & Gordon received signed consent orders to amend the originating motion from the TAC.[30]
[30]Ibid [18].

By letter dated 22 February 2016, Ms McCullough wrote to the TAC seeking to lodge an application for a serious injury certificate with the TAC.[31] An impairment benefit determination was requested.
[31]Ibid [19]; Exhibit ‘BA-6’ to the Alexopoulos 21 Dec 17 affidavit. Leith 21 May 19 affidavit, [14]; Exhibit ‘SL6’ to the Leith 21 May 19 affidavit.

On 26 February 2016, the County Court made orders amending the originating motion to include relief pursuant to s 23A of the LAA.[32] The amended originating motion was served on the TAC.[33]
[32]Ibid [20].
[33]Leith 21 May 19 affidavit, [15]; Exhibit ‘SL7’ to the Leith 21 May 19 affidavit.

By letter dated 27 June 2016, the TAC granted the plaintiff a serious injury certificate pursuant to s 93 of the Transport Accident Act.[34]
[34]Alexopoulos 21 Dec 17 affidavit, [21]; Exhibit ‘BA-7’ to the Alexopoulos 21 Dec 17 affidavit. Leith 21 May 19 affidavit, [16]; Exhibit ‘SL8’ to the Leith 21 May 19 affidavit.

By letter dated 11 July 2016, the TAC enclosed proposed consent orders that a directions hearing be vacated and the matter be otherwise dismissed.[35] The consent orders were signed on behalf of the plaintiff on the same day and returned to the TAC by email.[36]
[35]Alexopoulos 21 Dec 17 affidavit, [22]; Exhibit ‘BA-8’ to the Alexopoulos 21 Dec 17 affidavit. Leith 21 May 19 affidavit, [18].
[36]Alexopoulos 21 Dec 17 affidavit, [22].

On 22 July 2016, the County Court made orders vacating the administrative mention listed on 25 October 2016 and dismissing the plaintiff’s proceeding CI‑15‑00069 with no order as to costs.[37] The defendant’s solicitor deposes:

Throughout its dealings with Slater & Gordon in relation to this matter, the defendant has maintained the position that the plaintiff’s claim is statute barred and has advised that it would rely upon the Limitation of Actions defence.[38]

[37]Leith 21 May 19 affidavit, [19].

[38]Ibid, [17].

On 13 September 2016, an application was lodged with the Victorian Civil and Administrative Appeals Tribunal to appoint the plaintiff’s son, Hashim Hassan, as the plaintiff’s administrator.[39] On 25 October 2016, the application was heard by Member Sharkie and the matter was adjourned to allow further information to be received from the plaintiff’s treating general practitioners. Further clarification from Dr Serry was sought.
[39]Alexopoulos 21 Dec 17 affidavit, [23].

By letter dated 5 January 2017, Mr Jason Williams of the TAC, wrote to Slater & Gordon, denying liability on the grounds that the common law proceedings were statute-barred and enclosed Verifact Reports dated 20 April and 2 May 2016 (‘5 Jan letter’).[40] Mr Williams advised there was clear prejudice and the TAC would not participate in a TAC common law protocol conference.
[40]Ibid [24]; Exhibit ‘BA-9’ to the Alexopoulos 21 Dec 17 affidavit.

By phone call on 18 January 2017, Ms Alexopoulos discussed Mr Williams’ 5 Jan 17 letter with him.

I explained there were delays caused by the recent VCAT hearing on foot to appoint an administrator and request[ed] the matter be conducted in accordance with the TAC common law protocol conference. Mr Williams, at that stage, invited the [p]laintiff to issue a writ.[41]

[41]Ibid [25].

Later that day, namely 18 January 2017, Ms McCullough wrote to Mr Williams confirming the discussions.[42]
[42]Ibid [26]; Exhibit ‘BA-10’ to the Alexopoulos 21 Dec 17 affidavit.

By letter dated 23 January 2017, Mr Williams informed Slater & Gordon that the plaintiff’s claim was statute barred, the TAC was prejudiced in defence of the claim and it was not prepared to hold the conference until leave of the Court was obtained.[43]
[43]Ibid [27]; Exhibit ‘BA-11’ to the Alexopoulos 21 Dec 17 affidavit.

On 8 February 2017, a writ was filed in this Court commencing common law proceedings.[44]
[44]Ibid [28]; Exhibit ‘BA-12’ to the Alexopoulos 21 Dec 17 affidavit. Generally endorsed writ filed on 8 February 2017.

On 17 May 2017, a statement of claim was filed.[45]
[45]Ibid [29]. Statement of claim filed on 17 May 2017.

The plaintiff’s solicitor deposed:

The Plaintiff was not permitted by law to commence proceedings until the serious injury certificate had been granted to her by the Transport Accident Commission. The Plaintiff was not aware of her rights to pursue common law damages until she first conferred with Slater and Gordon solicitors by phone on 16 December 2014.
Further, the Plaintiff had amended her originating motion in the County Court to include an application for leave to commence proceedings by extending time in accordance with section 23A of the Limitations of Actions Act. The proceeding was dismissed by consent by both parties by correspondence received from the Transport Accident Commission with consent orders prepared by the Transport Accident Commission on 11 July 2016. In light of the consent orders filed with the County Court, the Plaintiff was of the belief that the Defendant would not raise the Limitation of Actions defence given that it prepared the consent orders dismissing the entire proceedings including the section 23A application.[46]

[46]Ibid [30]–[31].

On 10 January 2018, the plaintiff filed a summons in this Court seeking to extend the time. An amended summons was filed on 23 March 2018.

By a further amended summons filed on 6 September 2018, the plaintiff seeks to extend the time for the proceeding to be heard.

Plaintiff’s submissions
Length of and reasons for the plaintiff’s delay

The delays in the plaintiff’s case are appropriately explained by the difficulties that she encountered. The plaintiff experienced issues prior to the accident in November 2005 and her life has derailed since then. From the latter part of 2005, the plaintiff was in Odyssey House for two and a half years. Further, it is common ground that the plaintiff was in Odyssey House during 2007‑8.

After staying at Odyssey House, the plaintiff developed heroin and amphetamine issues lasting over a number of years. The plaintiff was a not a person in control of her life and has, at stages in this litigation, had a litigation guardian. Although, she has moved on in some aspects of her life, she still has an administrator.

As the plaintiff deposes, she only sought legal advice because the father of one of her children suggested she do so in about 2014. That led her to consult with Slater & Gordon on 16 December 2014. Prior to that, the plaintiff was not in any condition to seek legal advice.

The plaintiff foreshadowed a serious injury application by the 22 Dec 14 letter. A serious injury application has only one purpose. It is a precursor to a common law claim. By the 22 Dec 14 letter, the TAC was on notice that a common law claim was being pursued. The TAC says it received the 22 Dec 14 letter on 6 January 2015.

The plaintiff continued to encounter problems in the period after the 22 Dec 14 letter. Her affidavits depose to this. The plaintiff was on a community corrections order for drug use in 2018. There was a failure to comply with that which resulted in her being detained in Dame Phyllis Frost Corrections Centre for seven months in 2018. This caused some delays in the prosecution of this case.

Delays throughout 2018‑20 were in relation to the location and service of the defendant and those matters appear on the Court file and in affidavits.

Prejudice

The issues of prejudice are turned on their head by the events on the day of hearing. The fact of the matter is the defendant has been located. There should be no evidence of any weight before the Court that there is any lack of recollection on the part of the defendant. As is now known, he has deliberately taken the course of making himself unavailable for his evidence to be tested. That is a telling matter. By his own actions, an adverse inference must be drawn.

The plaintiff has sworn that in the immediate aftermath of the accident the defendant pulled on her arm to flee the scene in order to evade police. The plaintiff will give evidence at trial that it was the defendant who was seeking to evade police and, of his own volition, drove in a manner which led to the accident. The defendant’s actions were causative of the accident.

To the extent the medical records exist, they have been obtained and made available. There were periods of time when the plaintiff did not receive medical treatment. The defendant asserts prejudice because records are missing. The plaintiff disagrees. Further, even if it were true, the prejudice is to the plaintiff, not the defendant. That is, if the plaintiff cannot prove she has injuries or that they are connected with the accident, damages will be reduced. That is not a prejudice to the defendant. There is no prejudice established, not even general prejudice, because it cannot be confirmed whether there was any loss of memory by the defendant or not. If there is any prejudice, then it is prejudice which the plaintiff will suffer, not the defendant.

Other issues relevant to the question of prejudice follow.

(a) There is an absence of the two police officers in an unidentified vehicle. In one of the Leith affidavits, the solicitor deposes the police officers may have witnessed the accident. It cannot be determined whether they witnessed the accident or not. The Victorian Police LEAP Instant Summary Report, however, records the defendant attempting to avoid apprehension at the time of the accident. It records: ‘statements from witness have been taken & also from the victim. Noa attempting to avoid apprehension @time of accident @ observed driving recklessly’. Even if the police officers are unavailable, what was recorded is available and will make up for that gap in evidence. It is a business record that the plaintiff can rely upon to prove it was the actions of the defendant that caused the accident. The absence of the police officers is neither here nor there. The critical document exists.

(b) A witness named Mr Zane Walker who is said to be living in Copenhagen, Denmark, is absent. There is no indication that any investigation has been taken through the Australian Embassy in Copenhagen to identify an Australian resident of that name.

(c) In relation to the nephew of the defendant, which appears as two different names in the materials, it is said that he has not been located. The defendant’s mother has been located. It would be inconceivable that she would not know where her son is. That is not a matter of prejudice.

The totality of the issue of prejudice is not one of magnitude. A fair trial can be held on all the issues in this case. To the extent, there is anything missing, it will be prejudicial to the plaintiff in establishing her case, not the defendant.

Other circumstances

In relation to sub-s 23A(3) subparagraphs (c) to (f), the plaintiff says the following.

(a) Subparagraph (c), steps taken by the defendant, is not critical in this case. After the TAC made contact with the defendant, it declined to accept service on his behalf.

(b) Subparagraph (d), the duration of disability, is a matter of medical evidence. The plaintiff has continued to encounter difficulties with her conditions which are significant, as outlined above. There is a bevy of medical reports which will be updated for the trial. Medical experts’ opinions as to causation of her injuries will be in evidence.

(c) Subparagraph (e), the extent to which the plaintiff acted promptly and reasonably once she knew of the act or omission of the defendant, is addressed above. The plaintiff was not aware that she may have an action in damages until December 2014. Within a matter of days, the TAC was notified that she was making a serious injury application.

(d) Subparagraph (f), the plaintiff attended medical examinations for the purposes of evidence being procured relevant to her injuries. There were some non‑attendances. One non-attendance was due to the plaintiff receiving treatment for DVT. Another was due to a period of detention at Dame Phyllis Frost Centre.

Submissions in reply

In reply to the defendant’s submission,

(a) that it was first aware of the claim on 10 January 2018: the TAC was notified by the 22 Dec 14 letter for the purpose of the serious injury and medical examinations. There were no issues of causation at the time those examinations were being conducted in 2015.

(b) on the unreliability of memories 15 years after the accident: there is objective evidence in the police report. That report is a reliable source.

(c) on the volenti non fit injuria defence: the plaintiff has deposed that she was not heavily intoxicated and she has not been cross-examined on that.

(d) on any joint illegal enterprise: the plaintiff deposed the defendant pulled her arm as he sought to flee the scene in order to evade the police and she has not been cross-examined on that.

Defendant’s submissions

Delay is from the time of the accrual of the cause of action. The delay in question is delay of 12 years, one month and 28 days until the summons of 10 January 2018 was issued. That is the relevant stopping of the expiration of time. It is accepted that the delay here is largely explained by the plaintiff in terms of the material set out in her affidavit. It is, nonetheless, a significant delay.

General prejudice of delay

The cause of action arose on 13 November 2005. The limitation period expired on 13 November 2011.

The summons seeking an extension of time was issued on 10 January 2018. The statement of claim was finally issued on 27 March 2018. The extent of the prejudice is the substantial basis on which the defendant objects to an extension of time. The defendant has now been located in a different country. His memory is effectively 15 years’ old in relation to the accident. It would make it difficult for the participants [in the accident] to recall what occurred. That is, because as the plaintiff says in her own affidavits, they had been drinking throughout the evening before the accident and drinking quite heavily at various venues. It is a matter of reasonable inference that the defendant might have difficulties with his memory. The defendant is generally prejudiced by the inordinate delay in the plaintiff bringing her cause of action and the recognised prejudice to a fair trial that flows from the passage of time.

The defendant has led evidence of potential prejudice that would be occasioned by granting an extension of time in regard to the various matters that are set out in the affidavits. It is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice. The onus shifts to the plaintiff.

In Tsiadis v Patterson,[47] Buchanan JA stated:

[t]he lapse of time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss...[48]
[47](2001) 4 VR 114 (Buchanan JA, Ormiston and Callaway JJA agreeing) (‘Tsiadis’).
[48]Ibid 123 [32] (citation omitted).

Specific prejudice of delay

On specific prejudice of the delay, there are a number of live issues:

(a) the nature and extent of the plaintiff’s knowledge of the [defendant] driver’s intoxication;

(b) the extent of the plaintiff’s intoxication;

(c) whether there were drugs in the vehicle and what, if any, role drugs may have played in the happening of the transport accident;

(d) whether the transport accident was caused or contributed to by another vehicle colliding with the [defendant] driver’s vehicle;

(e) whether or not the plaintiff was wearing a seatbelt.

If the plaintiff is granted an extension of time, the defendant will lose the benefit of the limitation defence, which is an undoubted prejudice. The lapse of time means that the defendant would be likely prejudiced in the proper defence of the proceedings due to the:

(a) unavailability of the known witness to the transport accident, Mr Walker;

(b) inability of the defendant to identify two police officers who were witnesses to events in the lead up to the transport accident and who may have witnessed the transport accident; and

(c) loss of statements, notes and photographs held by Victoria Police relevant to the accident circumstances.

The evolution of time and the difficulty in getting instructions in relation to these matters, given the destruction of the police file and the absence of witnesses, means that it is difficult now to explore the following defences properly.

(a) Alcohol is relevant but difficult at this distance to be explored properly. It may give rise to a volenti non fit injuria defence. It is difficult to know.

(b) There could be a seatbelt defence. The plaintiff says in her affidavit that she does not know how she got into the defendant’s vehicle.

(c) There could be a joint illegal enterprise defence.

Causation

On causation, the plaintiff’s injuries, apart from the fracture to her arm, are not clear-cut. There were pre-existing injuries. The defendant did not have an opportunity to arrange a medical examination of the plaintiff between 2005–15. That is a period of 10 years. For example, the claim for DVT arises five or six years after the accident. The prejudice is to the defendant because he has to meet this claim and is required to provide an answer to it. The difficulties with the medical evidence and the gaps in the reporting of the plaintiff’s condition give rise to great difficulty on the defendant’s part in answering those claims.

The plaintiff says she had various pre-existing issues, including depression, and what is claimed is an exacerbation or worsening of the condition. If we do not know what the condition was at the start, then it cannot be ascertained what the exacerbation has been later on. It is not an answer for the plaintiff to assert to a medical examiner that they were good or bad or indifferent at the time. If there was information available from contemporaneous medical reporters or treaters it would enable a proper assessment of the nature and extent of any exacerbation.

In relation to the development of DVT, that occurred five or six years after the accident and not long before the expiration of the time period. In the ordinary course of events, if the proceedings had been issued in time, then the plaintiff would have been able to be assessed, at a time not far removed from the development of that condition. There is no evidence on which it now can be linked, or not, other than an assertion by the plaintiff that it is linked. None of the medical examiners are able to express a view one way or another about that. As it stands, no one has been able to assess the plaintiff within 10 years of that occurring. There is no comparator available for the assessment of those medical matters.

In relation to the plaintiff’s claim for loss of earnings, the submission that it is prejudicial to the plaintiff’s claim not the defendant’s, ignores the fact that the defendant is being required to meet a claim which he would not have to meet save for the grant of leave for an extension of time. There are live issues regarding the plaintiff’s claim for economic loss with no records relating to the plaintiff’s earnings prior to the financial year ending 2006.

Duration of disability

There is no evidence before the Court to support a contention that the plaintiff was a person under a disability prior to April 2017 either by reason of illegal drug use, a psychiatric disorder or otherwise.

On 24 April 2017, the plaintiff became the subject of an administration order and her son, Hashim Hassan, was appointed administrator. On 2 July 2018, due to Mr Hassan’s ill health, the State Trustees Limited was appointed as her administrator. The administration order significantly postdates the time periods with which this Court is concerned, namely from 13 November 2005 to 13 November 2011 and thereafter until the defendant was put on notice that the plaintiff intended to seek a claim for common law damages.

In paragraph 15 of the plaintiff’s affidavit deposed on 28 October 2015, she deposes to beginning to use heroin and ice while at Odyssey House. The plaintiff appears to have been an inpatient at Odyssey House between March 2006 and October 2007 for treatment for alcohol abuse. There is nothing in the report of Dr Gregory Frean to indicate that the plaintiff’s discharge from Odyssey House was other than a planned discharge. Nor is there any report of intravenous drug use while she was an inpatient there.

The plaintiff’s payment summaries for the 2008 and 2009 financial years suggest she was working for Inner Northern Group Training Limited between 11 April 2008 and 14 August 2008. The plaintiff’s address in those payment summaries is in Lalor. In the plaintiff’s more recent affidavit of 16 April 2019, at paragraph 11, she deposes to starting heroin use after dropping out of her Aged Care course at the Australian Catholic University in about 2009. The plaintiff deposes to being homeless and a user of heroin and amphetamines between 2009 and 2015.

The plaintiff’s timeline of hospital admissions, locations of home addresses and any intravenous use from 2009 are as follows.

(a) In July 2009, the plaintiff attended Box Hill Hospital complaining of left leg pain diagnosed as superficial thrombophlebitis. The plaintiff’s address was recorded in Glen Waverley which is the address recorded in her 2009 payment summary. There does not appear to be any reference to intravenous drug use in the records relating to that episode.

(b) In September 2010, the plaintiff attended Box Hill Hospital complaining of abdominal pain diagnosed as dysmenorrhea. The plaintiff’s address was recorded as in Heathmont. That is the address recorded in her 2010 payment summary. There does not appear to be any reference to intravenous drug use in the records relating to that episode, and there is a notation ‘occasional alcohol’.

(c) In October 2012, the plaintiff was treated at Sandringham Hospital with bilateral arm cellulitis caused by intravenous drug use. The plaintiff’s address was recorded as in Hampton. The plaintiff’s payment summaries for financial years 2011 to 2014 are the same address in Hampton.

(d) In November 2013, the plaintiff was treated at Sandringham Hospital for left foot cellulitis and was noted to have last used ice/heroin six months earlier. The plaintiff’s address was the same address in Hampton. There does not appear to be any reference to intravenous drug use in the records relating to that episode.

(e) The plaintiff’s affidavit sworn on 28 October 2015 records the same address in Hampton.

(f) Dr Frean’s report dated 13 December 2015 also records the plaintiff’s home address as the same address in Hampton.

Whether there was prompt action by the plaintiff

The plaintiff did not act promptly in the more than nine years between November 2005 and January 2015. Thereafter, the plaintiff has put her claims in the hands of her solicitors.

Prejudice to the plaintiff is irrelevant

The prejudice to the plaintiff is irrelevant. It might reduce damages but that is not a relevant matter for the purposes of this application.

The requirement of the defendant is that he answer the claim. The plaintiff has not shown that the defendant’s evidence does not demonstrate prejudice. On balance, there is significant effluxion of time in this case. There is a reason put forward by the plaintiff for the effluxion of time. It nonetheless does not address the specific matters that the defendant raises as giving rise to prejudice. The application for an extension of time ought be refused.

Applicable principles

The applicable principles were not in dispute.[49]
[49]Tsiadis (n 47); Prince Alfred College Inc v ADC (2016) 258 CLR 134.

Subsection 5(1)(a) of the LAA is relevant and follows.

(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued-
(a)Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;

Section 23A of the LAA is relevant and follows.

Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following-
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

(4)The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding-
(a) that-
(i)in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii)in any other case more than 6 years has expired since the cause of action accrued; or

(b)that an action in respect of such personal injuries has been commenced.

(5)An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
...

Analysis
Length of and reasons for the plaintiff’s delay

The plaintiff deposes to the reasons for delay in her affidavits. I find that the following circumstances cumulatively explain her delay. I accept her evidence that, prior to consulting solicitors in December 2014, she was unaware there was a six year limitation period within which to make a damages claim. I accept here evidence that, until she obtained that legal advice, her understanding was that the extent of any assistance from the TAC was for medical treatment.

I accept that the plaintiff had a range of significant health issues including: surgery in 2005 following the accident, hospitalisation in 2010, depression and substance addiction. The precise periods in which she suffered depression and was substance addicted will be issues for trial. I accept her evidence that she was homeless at times. I do not draw the inference that because there is evidence she used a range of home addresses, she did not experience homelessness at times. I accept her evidence that she was remanded in custody and imprisoned from August 2018 until January 2019.

The defendant rightly concedes that the plaintiff’s delay is largely explained in her affidavits.

I accept the period of delay is significant. I accept the defendant’s calculation. The delay is a few days shy of 12 years and two months. This period comprises of the initial six year period after the accident plus a further period of almost six years and two months until the application to extend time in this proceeding was made on 10 January 2018.[50]
[50]Koumorou v State of Victoria [1991] 2 VR 265, 271; Transport Accident Commission v Murdoch (2020) 92 MVR 1, 20 [83].

Prejudice to the defendant

The issue of prejudice is the central issue in dispute here. There is general prejudice due to the effluxion of time. Turning now to specific prejudice.

Firstly, the defendant could make himself available to give evidence at trial. No specific findings can be made in respect of his memory of the accident at this point. He was aware of the hearing and, although he was to give evidence, he did not attend. Neither the plaintiff nor the Court were aware of this until the morning of the hearing. No explanation for his absence was provided. Moreover, the defendant was located by his solicitors in New Zealand and in contact with them. In the absence of any contrary explanation, the inference must be drawn that he could make himself available to give evidence at trial.

Secondly, the police file is no longer in existence. This means the police brief, photographs and witness statements have not been produced by Victoria Police. Further, there were two police officers in an unmarked car who are said to have witnessed events leading up to the accident and may have witnessed the accident. They do not appear to be identified or available to give evidence. I accept this gives rise to specific prejudice. The defendant says there may be difficulties in exploring a number of issues he wishes to rely upon, being: the alleged intoxication of the plaintiff and the defendant, whether drugs played a role in causing the accident, whether another vehicle was involved in the accident and whether the plaintiff was wearing a seatbelt. There is however documentary evidence available including: the Victoria Police LEAP Instant Report, LEAP Court Outcomes Report and LEAP Sub Incident Summary Report. There is a detailed Police Interview Report with the police officer who attended the scene of the accident and a detailed TAC Common Law (Accident Circumstances) Report. The plaintiff is available to give evidence and be cross‑examined in relation to these issues.

Thirdly, Mr Zane Walker, a witness, is said to be unavailable to give evidence. There is some evidence he was residing in Copenhagen. The defendant’s solicitors have been unable to find him using social media and last attempted a search in 2019.[51] I accept that Mr Walker may not be available to give evidence at trial and that this gives rise to specific prejudice to the defendant.
[51]Accident Circumstances Report dated 30 October 2019, contained in exhibit ‘SL22’ to the Leith 19 Nov affidavit, 2.

Fourthly, the plaintiff is available to attend medical examinations and be cross‑examined. I reject the defendant’s submission that he is so prejudiced by gaps in the medical records or a lack of medical records contemporaneous with the accident that a fair trial cannot be held. There are medical records in evidence in respect of her alleged injuries. Shortly after the accident, and while still in hospital, the plaintiff submitted a TAC claim form.[52] The form was received by the TAC on 16 November 2005. On 1 December 2005, the defendant advised the plaintiff that it accepted her claim for medical and other reasonable expenses arising from the transport accident.[53] The TAC funded the plaintiff’s ambulance expenses and also the Alfred Hospital expenses in respect of the plaintiff’s admission between 13 November 2005 and 17 November 2005. The TAC retains records in respect of this.[54] The plaintiff’s patient records of Alfred Hospital are in evidence.[55]
[52]Plaintiff’s 16 Apr 19 affidavit, [7].
[53]Leith 21 May 19 affidavit, [7]; Exhibits ‘SL1’–‘SL2’ to the Leith 21 May 19 affidavit.
[54]Exhibit ‘SL9’ to the Leith 21 May 19 affidavit.
[55]Exhibit ‘SL21’ to the Leith 21 May 19 affidavit.

The defendant says there was no opportunity for the TAC to arrange a medical examination of the plaintiff between 2005–15. The plaintiff did not make a claim for the TAC to fund any further treatment after 17 November 2005 and until 2015. The defendant refers to the plaintiff’s medical conditions, such as depression and DVT. The defendant says the gaps in the plaintiff’s medical records give rise to prejudice with respect to answering the plaintiff’s claims. Yet there is no evidence from any of the medical practitioners who assessed the plaintiff that they are unable to opine on the extent of injuries or causation because of a lack of pre-existing medical records. Indeed, the evidence is otherwise. The defendant referred specifically to the report of a surgeon, Professor Kenneth Myers, dated 28 January 2016. Professor Myers did not have sufficient information to determine the site or extent of the DVT and its natural history ‘in terms of persistent occlusion or recanalization with destruction of valves’ and nor could he date the onset of DVT. Professor Myers is however able to provide an opinion and does so. His opinion is that ‘all disability [in the plaintiff’s left leg] results from the effect of a past [DVT] in the left leg resulting in the development of Post-Thrombotic Syndrome with pain and swelling in the leg and physical evidence of venous pigmentation and skin changes’.[56] Professor Myers arrives at this opinion after examination of the plaintiff, and also after examining the report by Dr David MacDonald of Alfred Health dated 31 March 2015.[57] Professor Myers refers to that report and notes that there is no mention in Alfred Health’s records of a diagnosis of DVT. Professor Myers does not opine that gaps in the plaintiff’s medical records prevented him from providing a diagnosis or opining as to causation. To the contrary, Professor Myers opines ‘there is a direct association between the motor vehicle accident and the subsequent alleged deep vein thrombosis and consequent Post‑Thrombotic Syndrome’.[58] He concludes that the plaintiff’s prognosis is ‘now very poor’ and that her left leg ‘will gradually worsen in the future’ with venous ulceration ‘very likely to occur within the next five to ten years’.[59]
[56]Ibid.
[57]Ibid.
[58]Exhibit ‘SL13’ to the Leith 21 May 19 affidavit, Report of Professor Kenneth Myers dated 28 January 2016.
[59]Ibid.

In addition to the report provided by Dr MacDonald of Alfred Health about treatment of the plaintiff in 2015, there is a report by Dr Gregory Frean dated 13 December 2005. He refers to the plaintiff being an inpatient at Odyssey House from 16 March 2006 to approximately 28 October 2007. Dr Frean refers to his medical assessment of her during that period and treatment during that period.[60]
[60]Exhibit ‘SL21’ to the Leith 21 May 19 affidavit, Report of Dr Gregory Frean, dated 13 December 2015.

There are records too of the plaintiff’s treatment at Eastern Health (Box Hill Hospital) in 2010[61] and Sandringham Hospital in 2013.[62]
[61]Ibid Eastern Health records.
[62]Ibid Sandringham Hospital records.

In addition to Professor Myers’ report, there are other medico-legal reports that date from mid-2015. The plaintiff’s serious injury certificate application included a report of Alfred Health dated 31 March 2015; and medico legal reports of Mr Murray Stapleton, upper limb and plastic surgeon, dated 20 July 2015; Mr Peter Moran, orthopaedic surgeon, dated 21 July and 23 July 2015; Dr Nathan Serry, psychiatrist, dated 21 July 2015; and the Myers report referred to above. Mr Stapleton refers to the accident and opines that there is no unrelated injury or condition or aggravation of a previous problem. He refers to the plaintiff’s injuries sustained as a result of the accident including a fracture of the upper part of her left humerus [bone of upper arm], and consequently a rod being inserted along her humerus, which remains in place. Mr Stapleton also refers to the surgical scars. He finds her left shoulder has a reduced range of movement and that she has a scar on it and her abdomen. Mr Stapleton finds the plaintiff’s injuries ‘so far as the scars are concerned, interfere with her activities of daily living and thus of course [affect] her domestic and leisure activities’.[63]
[63]Exhibit ‘SL13’ to the Leith 21 May 19 affidavit, Report of Mr Murray Stapleton dated 20 July 2015.

In his 21 July 2015 report, Mr Moran refers to the plaintiff’s dominant musculoskeletal injury as a fracture of the left humerus, now united.[64] In his 23 July 2015, Mr Moran refers to having reviewed x-rays of the plaintiff’s left arm injury taken at the Alfred Hospital during and subsequent to the plaintiff’s admission there. He says the images are consistent with the opinion expressed in his 21 July 2015 report.[65]
[64]Ibid Report of Mr Peter Moran dated 21 July 2015, 2.
[65]Ibid Report of Mr Peter Moran dated 23 July 2015, 1.

Dr Serry diagnoses the plaintiff with bipolar II disorder and not insignificant levels of anxiety. He opines that the bipolar II is not of itself related to the accident but that the plaintiff’s mood fluctuations are contributed to by stress. Dr Serry mentions considering a differential diagnosis of mood disorder, not otherwise specified.[66]
[66]Ibid Report of Report of Dr Nathan Serry dated 21 July 2015, 6.

There is a joint medico-legal report by Associate Professor Paul Desmond, gastroenterologist, dated 22 March 2016. He reviewed the Alfred Hospital’s clinic notes from 2005. Professor Desmond opined that it was ‘difficult to be sure as to the actual aetiology of [the plaintiff’s] abdominal abscess but it is possible that it is related to the motorcare accident and narcotic analgesics taken for pain’.[67]
[67]Ibid Report of Associate Professor Paul Desmond, dated 22 March 2016, 2.

There is a joint medico-legal report by Associate Professor Richard Stark, neurologist, dated 16 June 2016.[68] He concludes that he does ‘not believe that there is any significant neurological impairment arising from the accident by virtue of the effects of head injury and I think her poor cognitive performance can be attributed to psychiatric and drug abuse related dysfunction’.[69]
[68]Ibid Report of Associate Professor Richard Stark, dated 16 June 2016.
[69]Ibid 3.

On 27 June 2016, the TAC granted the plaintiff a serious injury certificate.[70]
[70]Exhibit ‘SL8’ to the Leith 21 May 19 affidavit.

Fifthly, there are no records relating to the plaintiff’s earnings prior to the financial year ending 2006. As the plaintiff says, it is for her to establish any loss that she claims. However, without financial records being available, the defendant loses the opportunity to test evidence given by the plaintiff with reference to financial records. On balance, I assess this factor neutrally. It has yet to be fully explored. There was no evidence as to what steps had been taken by the plaintiff to obtain any financial records from the Australian Tax Office, Centrelink or her superannuation fund.

I do not consider that the prejudice to the defendant is such that a fair trial cannot be held. There is general prejudice arising from the inordinate delay. There is also specific prejudice to the defendant including the unavailability of Mr Walker, the two potential police witnesses and the police file. However, there is other evidence available, including the contemporaneous documentary evidence identified above. The plaintiff is available to give evidence and the defendant can make himself available. Accordingly, I reject the defendant’s submission he is not able to properly explore the defences regarding the plaintiff’s contribution to the accident or her injuries.

Extent the defendant took steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to her cause of action

This is not in issue here.

Duration of any disability of the plaintiff arising on or after the date of accrual of the cause of action

There is evidence as to the plaintiff’s physical and mental disabilities prior to issuing these proceedings. There are gaps in the evidence and it is unclear whether or not there were disabilities during the whole period. The defendant refers to a four month period in 2008 which the plaintiff was working and the plaintiff’s evidence that she enrolled in a course of tertiary studies in 2008. I do not infer from this evidence that the plaintiff was not suffering from any disability during those periods. Many people living with disabilities work and study. On the whole, the plaintiff’s own evidence, together with the reports of Mr Stapleton, Professor Myers, and Dr Serry (discussed above) suggest that she has suffered from disability for a substantial part of the period since the accident.[71]
[71]Medico-legal reports contained in Exhibit ‘SL13’ to the Leith 21 May 19 affidavit.

There is another report which is suggestive of the plaintiff experiencing a disability for at least some of the period since the accident. I refer to the report of Associate Professor Gerschman, dental surgeon, dated 5 May 2017. Professor Gerschman examined the plaintiff on 29 September 2016 at which time she was edentulous (had no remaining teeth left in her mouth), ‘numerous ulcers on the maxillary and mandibular ridges on the mucosal surfaces’. The dentures she had worn were ‘difficult to wear as they were falling out and causing ulceration of the gum (mucosal tissues). The dentures were not functional and she was losing much weight’.[72] At that point eating with the dentures was ‘almost impossible and so she was eating without her dentures’.[73] This is not to say these issues were connected with the accident. Indeed, Professor Gerschman opined that the plaintiff’s dental issues to be unrelated to the accident.
[72]Exhibit ‘SL13’ to the Leith 21 May 19 affidavit, Report of Dr Jack Gerschman dated 5 May 2017, 8.
[73]Ibid 9.

The evidence, discussed in medical records referred to above, discloses that the plaintiff had periods of hospitalisation immediately following the accident and during 2010. She deposes to having substance addiction between 2009 and 2015. The defendant refers to a lack of reference to intravenous drug use in various records. I do not draw an inference that the plaintiff was not substance addicted during that time in the circumstances where she has given evidence that she was addicted and where that inference has not been put to the authors of the medical records.

Certainly by April 2014, the plaintiff did not have legal capacity. At that time, an administrator was appointed.

Extent to which the plaintiff acted promptly and reasonably once she knew the acts or omissions of the defendant, to which her injuries were attributable, might be capable at that time of giving rise to an action for damages

I accept the plaintiff’s evidence that after it was suggested to her that she obtain legal advice, she promptly did so. Further, I accept the evidence that her solicitors promptly placed the TAC on notice by foreshadowing a serious injury application by way of the 22 Dec14 letter. A reasonable inference to be drawn from the 22 Dec 14 letter is that the plaintiff intended to pursue a common law claim if her serious injury application was successful.

Steps, if any, taken by the plaintiff to obtain medical, legal or other advice and the nature of the advice he received

As discussed above, the plaintiff obtained legal advice and, following that, made a serious injury application. There were conferences that she did not attend. Some, but not all, of these non-attendances were due to hospitalisation or incarceration. The plaintiff’s solicitors initiated proceedings in the County Court on her behalf, and then later this proceeding. It is evident that, since retaining solicitors, the plaintiff has been examined for the purpose of medico-legal reports. Prior to that, in the immediate aftermath of the accident, and while hospitalised, the plaintiff received advice from a social worker to submit a TAC claim form and did so. (As discussed above, I accept her evidence that her understanding was that the extent of any assistance from the TAC was for medical treatment.) In the period after hospitalisation and before obtaining legal advice, the plaintiff was evidently suffering ill-health, as discussed above. However, other than treatment at Odyssey House, and for medical emergencies, there is no evidence of any ongoing medical treatment or advice received by her during that period.

Other circumstances

The consequence of allowing this application would be that the defendant is unable to rely upon a limitation defence.

The plaintiff has been granted a serious injury certificate by the TAC. The consequence of disallowing this application would be serious and adverse: she would be unable to pursue her common law claim in this proceeding.

Synthesising competing considerations

Taking into account all the circumstances, it is just and reasonable to extend time. I accept that there is significant delay and general prejudice occasioned by the effluxion of time. And also that there is specific prejudice due to the non-availability of police records and some witnesses (Mr Walker and two potential police witnesses). However, there is other documentary evidence available relating to the accident and the plaintiff’s injuries, and the plaintiff is available to give evidence. The defendant could make himself available to give evidence. As discussed above, the prejudice to the defendant is not such that a fair trial cannot be held. The circumstances in favour of granting the extension of time outweigh those against. These include the reasons for the delay, the plaintiff’s serious injury and the prompt action taken by the plaintiff to place the TAC on notice and initiate proceedings once solicitors were retained.

Conclusion

The plaintiff’s application is allowed. I will hear the parties on the form of orders and costs.

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Citations

Hassan v Noa (No 2) [2021] VSC 339

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Pickett v Westaff (Australia) Pty Ltd [2021] VCC 1104

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Foxley v TAC [2021] VCC 1222

Pickett v Westaff (Australia) Pty Ltd [2021] VCC 1104

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Prince Alfred College Inc v ADC [2016] HCA 37

[2021] VSC 339

17 June 2021