Hayes, Calvin v TAC (No 2)
[2009] VCC 943
•3 August, 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01477
| CALVIN HAYES | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 April 2009; 27 & 28 July 2009 |
| DATE OF JUDGMENT: | 3 August, 2009 |
| CASE MAY BE CITED AS: | Hayes, Calvin v TAC (No 2) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0943 |
REASONS FOR JUDGMENT
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Catchwords: Application under s.23A Limitation of Actions Act 1958; issued 17 years after transport accident; whether drug dependency or imprisonment a “disability” under sub-para 23A (3)(d), or reasonable excuse for delay in bringing proceedings; current solicitor acting for plaintiff for several years before issuing proceedings but after limitation period already expired; whether just and reasonable in all the circumstances to extend time.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | MW Law |
| Mr J Sala | ||
| For the Defendant | Mr M Klemens | TAC |
1 Mr Calvin Hayes applies for an extension of time in which to bring a common law claim for damages in respect of injuries he alleges he suffered as a result of being struck by a taxi on 29 November 1991. The applicable limitation period was six years from date of accrual of the cause of action[1], and therefore expired on 28 November 1997. However, his common law right of action, although commencing on the date of the transport accident, was conditionally (or wholly) extinguished until he could satisfy the gateway requirement under s 93 of the Transport Accident Act 1986[2] of establishing that he had suffered a “serious injury”. No steps were taken or proceedings issued to obtain a finding of “serious injury” to revive his cause of action during the limitation period.
[1] Section 5(1) (a) Limitation of Actions Act 1958 before amendment effective November 2002.
[2] Wilson v Natrass (1995) 21 MVR 41; Swannell v Farmer [1999] 1 VR 299; Millard v State of Victoria [2006] VSCA 29 at para 33
2 In September 2004 an Originating Motion was issued in this court, by his current solicitor, for leave to issue proceedings by seeking a finding that he had suffered a “serious injury”[3]. A hearing set for November 2005 was adjourned, not relisted until late 2007, and it was not until the second day of the hearing of that application, 15 April 2008, that an application was issued for an extension of the limitation period[4]. On 19 December 2008, I handed down a decision that an injury to his cervical spine suffered in the 1991 transport accident constituted a serious injury[5]. The hearing of the application for extension of the limitation period was adjourned to enable affidavit material going to its issues to be filed, and adjourned after a half day of hearing[6] to enable the plaintiff to file further affidavit material.
[3] Leave from the court sought under s 93(4) (d) Transport Accident Act 1986. No application was included for an extension of time under s 23A Limitation of Actions Act 1958
[4] This was done by the filing of a fresh Originating Motion rather than application to amend the existing one or Summons as specified in sub-section 23A(5).
[5] Exhibit 2
[6] 6 April 2009
3 The Transport Accident Commission (“TAC”) opposes an extension of the limitation period, as it did the finding of “serious injury”.
4 The material before the court on this application consisted of affidavits and their respective exhibits, of the plaintiff, his current solicitor, and a legal practitioner in the defendant’s employ, as listed in the attached schedule of exhibits. In addition, the defendant tendered the Reasons for my decision on the plaintiff’s “serious injury” application, and the parties agreed that I could take into account those findings.
5 Neither party sought to cross-examine any of the deponents of the affidavits filed in the present application. They agreed that I could, and the defendant argued should, take into account my general impressions and findings as to the plaintiff’s credibility and reliability as a witness when considering the content of his affidavits filed in the current application. The plaintiff’s counsel conceded that my impressions of his general credibility and reliability made in the earlier case could be applied in the present application, but argued that as there had been no cross-examination on the content of the most recent two of his affidavits, I could not make a finding against his credit on those although I could draw inferences from inconsistencies between the content of his earlier evidence and of the more recent affidavits. [7]
[7] T 108 line 11 to T 110 line 15
Findings as to relevant circumstances
6 Mr Hayes is now aged 44. He claims to have been injured in the early hours of 29 November 1991 when struck – he alleges deliberately – by a taxi with whose driver he had just had a fare dispute. He was taken by ambulance to Royal Melbourne Hospital where radiology revealed either one or three fractured cervical vertebrae[8]. His pain was sufficient for the hospital to administer morphine and pethidine, and he was advised that movement could cause paraplegia or quadriplegia. His behaviour became aberrant – he alleges this was due to the morphine reviving his previous addiction to heroin (about which he had not informed hospital staff) - and he absconded from the hospital five days later, without any medical referral or prescriptions. He set about self-medication, including reverting to heroin use from which he claims to have abstained for the previous 3 months.
[8] Paragraph 19, Exhibit 2
7 About six weeks later he was sentenced in the Magistrates Court to three months’ imprisonment, for past offences. Prison medical records record his complaining of neck pain, and being referred for a neck x-ray on 28 February 1992, which confirmed at least one fractured vertebra at C5. He was prescribed panadeine[9] while in prison.
[9] Paragraph 20, Exhibit 2
8 On release from prison Mr Hayes says he reverted to heroin use, committed further offences, and was sentenced to a further term in prison later in 1992. In December 1992 he was injured by another prisoner, possibly aggravating his neck injury. In January 1993 he wrote to the TAC asking for confirmation that on his release from prison payments from the TAC would resume upon presentation of medical certificates that he was unfit for work[10]. In May 1993 he was assessed while still in prison by a psychiatrist, Dr Barnes, retained by Mr Hayes’ then solicitors, for the purposes of a Crimes compensation claim. Dr Barnes’ assessment and report included a quite detailed history of the 1991 transport accident and injuries, as well as of injuries from an August 1990 accident, and concluded that he was suffering from a significant psychiatric disability and was quite disordered in his thinking. Dr Barnes’ report dated 5/5/93 remains available and was tendered in the “serious injury” application[11].
[10] Exhibit 1 - Affidavit of David O’Brien – Ex “DOB3”
[11] Paragraphs 49 – 51, Exhibit 2, and listed as Exhibit F on schedule.
9 In November 1993, Mr Hayes was medically examined by Mr William Heape, consultant orthopaedic surgeon, at the behest of the TAC for the purpose of the statutorily required impairment assessment. Mr Heape provided a report in December 1993 which remains available and was tendered in the “serious injury” application[12].
[12] Paragraph 22, Exhibit 2, and listed as Exhibit 1 in schedule
10 There are no further reports of physical examination of the plaintiff until September 2000[13].
[13] There was no medical material tendered in support of the serious injury application as to physical examination of the plaintiff between December 1993 and the year 2000 (para 23- Exhibit 2), and no further material tendered in support of this application discloses any.
11 During the six years following December 1993, Mr Hayes returned to his family – his de facto wife and twin daughters - and to various jobs as a car salesman, interspersed between further prison sentences, some of which were for older offences and others for offences committed after the 1991 incident. He moved to Deniliquin NSW where between 1995 -1997 he was a successful car salesman, and to Sydney in 1998-1999 where he worked for McGrath Mitsubishi, but then underwent another prison sentence. He says that he had a drug addiction throughout this time.
12 By January 2000 Mr Hayes and his family had returned to Melbourne, where he claims to have suffered further injury when attacked by a drug user at Hanover Welfare Services. He has not worked at all since January 2000, and claims to have remained free from heroin use, but on a long-term methadone program. He has served two or three further prison sentences since.
13 On 30 January 2000 he first consulted Mr Paul Simon, a solicitor who has acted for him ever since. The initial consultation was in respect of a Crimes Compensation application, but it is conceded that the 1991 incident and injuries were raised.
14 On 7 April 2000 Mr Simon wrote to the TAC seeking an assessment of Mr Hayes’ degree of impairment, and at common law –“pursuant to s 93(17)(a). No evidence by way of an affidavit of the plaintiff or any medical report accompanied that letter. The TAC responded by letter of 25 May, 2000[14], that an impairment assessment had been made in December 1993, enclosing a copy of its letter at that time and of the report of Mr Heape on which it had relied. Another request for a serious injury certificate was included in a letter from Mr Simon to the TAC Freedom of Information officer, again without any further accompanying material. In any event by letter dated 6 June 2000[15] the TAC advised that it was not satisfied on the evidence in its possession that there was a “serious injury”, refused to consent to the bringing of proceedings and also noting that the matter was statute barred (wrongly quoting s23A as the basis).
[14] Exhibit E - Affidavit of Paul Simon 2/4/09 – Ex “PGS-3”
[15] Exhibit 1; paragraph 7 of Exhibit F - Affidavit of Paul Simon of 13/5/09 – Ex “DOB8”
15 According to Mr Simon it was at that stage that he formed the view that there would need to be medical evidence gathered in support of Mr Hayes’ claim to have suffered “serious injury”, and he requested a medico-legal report which was delayed through Mr Hayes failing to attend the first appointment. Mr Hayes seems to have commenced another term of imprisonment in late 2000, which both he and Mr Simon say made communication more difficult.
16 By late 2001 Mr Simon was pursuing claims for Mr Hayes from what was then called the Victims of Crime Assistance Tribunal (“VOCAT”). A forensic psychologist’s report from Ms Perrett-Abrahams had been obtained, setting out the basis of serious psychological conditions, and this and other reports were forwarded. The two claim numbers for those are 1992 and 1996, leaving me unsure for which incidents they were submitted. However, in a letter dated March 27, 2002[16] Mr Simon requested for his client from VOCAT loss of earnings for a two year period from 29/11/91 to 29/11/93, and he deposes that on 7 June 2002 Magistrate Betts made an award for Mr Hayes’ application concerning the transport accident the subject of this proceeding, and also an incident which occurred whilst the plaintiff was attacked in jail in 1995[17].
[16] Exhibit F - Affidavit of Paul Simon of 13/5/09 – Ex “PGS -1h”
[17] Paragraph 9, Exhibit E
17 During 2003 an application for further payments from VOCAT of pharmacy accounts was sought. On 21 July 2003 “the proceeding against Hanover Welfare Services settled”[18].
[18] Paragraph 34, Exhibit E
18 On 30 July 2004 Mr Simon wrote to the TAC again requesting a “serious injury certificate”, this time enclosing an affidavit of the plaintiff[19], which was of two pages addressing briefly the delay in bringing proceedings. In September 2004 the Originating Motion seeking a “serious injury” finding was issued but not accompanied by any further affidavit of the plaintiff in support. In August 2005 a further affidavit of the plaintiff was filed[20], consisting of less than three pages. In November 2005 the hearing of the application due to commence was taken out of the list by Judge Holt on the plaintiff’s application, on the basis that he was awaiting knee surgery, payment for which was unresolved with the TAC[21].
[19] Exhibit A
[20] Exhibit G
[21] As run before me the serious injury application did not include a claim in respect of either knee.
19 Correspondence in the second half of 2007 indicates that the TAC was still urging that the s23A application be joined with the serious application and heard together[22].
[22] Exhibit 1 - “DOB-10”
The law to be applied
20 The court has the power under s.23A of the Limitation of Actions Act 1958 (“the Act”) to extend the limitation period if it decides that it is just and reasonable to do so[23], having regard to all of the circumstances of the case. including the matters listed in sub-s.23A(3). The question to be decided by the court – “requires consideration of the conduct and position of both parties,
[23] S.23A(2)
including the effect of the outcome of the application on each of them… .”[24].
[24] Per Brooking J in Bell v SPC Ltd [1988] VR 123 at 125-6; cited with approval by Buchanan JA in Tsiadis v Patterson (2001) 4 VR 114 at para 33
The role of the court in determining an application is to apply the discretion taking into account all relevant circumstances of the case and not simply by weighing such matters against each other;
“Rather, the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the [plaintiff] bears the onus of persuading the court that it is just and reasonable to extend the limitation period.”[25]
[25] Tsiadis v Patterson (2001) 4 VR 114 at 123 per Buchanan JA, para 33
21 The specific (albeit not exclusive) matters to which the court must have regard under s.23A(3) are:
“(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.”
Considerations under ss 23A(3)
(a) Extent and reasons for the delay
22 The delay to be considered is the delay from the accrual of the cause of action to the making of the application for extension of time[26]. In this case the delay between accrual of the cause of action, and the application for extension of time, is over 16 years. The delay between accrual of the cause of action and the issue of the first court proceedings (in which this application could have been joined) was almost 13 years. Both such periods are more than double the applicable limitation period[27], and I regard them as very long delay.
[26] Repco Corporation Ltd v Scarmaglia [1996] 1VR 614 at 625
[27] More than 4 times the limitation period as it now applies, but I have throughout assumed, as did both
23 The alleged reasons for the delay can be summarised as –
(i)
ignorance of his legal rights for at least 8 years, that is until consulting Mr Simon on 30 January 2000;
(ii)
periods of imprisonment and drug addiction and consequent incapacity for much of the period before and after the limitation period expired;
(iii)
having instructed Mr Simon in January 2000, believing his case would be competently handled by his solicitor.
Was delay due to the plaintiff being ignorant of his legal rights?
24 During the six year limitation period Mr Hayes engaged three firms of solicitors. He states that the firm of McKean & Parke was engaged in around 1993/1994 and that he believes they were looking after his Crimes Compensation Tribunal application and his police offences, and “I do not recall mentioning to them at this early stage of any motor vehicle injury I had suffered in 1991”.28 In contradiction of that statement, his own letter to the TAC in January 200329 refers to advice of his solicitors as to his being entitled on release from prison to further payments from the TAC arising from this transport accident. Further, a medical report from Dr Barnes, psychiatrist, who assessed him at the request of his then solicitors, while he was in prison in May 1993, for the purposes of a Crimes Compensation Tribunal claim, took a description of two motor vehicle accidents and injuries suffered in them, including the one when he was hit by a taxi, collected by ambulance from the security room outside the showgrounds, and taken to Royal Melbourne Hospital.30
parties, that the comparison should be with the 6 year limitation period as it stood throughout the
1990s.
Paragraph 6, Exhibit C - Plaintiff’s affidavit sworn 4 March 2009
Exhibit 1 – Ex “DOB3”
See paragraphs 49 and 50, Exhibit 2
25
I am satisfied that Mr Hayes had informed McKean and Parke of the event of the 1991 transport accident and his wish to preserve or pursue at least his “no-fault” rights in respect of his injuries.
26
He subsequently retained Ms Mirella Lattanzio to act as his solicitor, in relation to criminal offences which he said included offences such as fraud and obtaining money by deception from the TAC in respect of the motor vehicle accident on 1991[31]. He says that Ms Lattanzio did not tackle the issues with respect to the motor vehicle accident but “indeed, she advised me that it was not worthwhile proceeding with but to concentrate on my criminal offences which at this time included my dependence on methadone and the fact that I was regularly being charged with such drug offences”. The only other evidence of her role is a copy obtained by the TAC of a letter by her for medical records from the Royal Melbourne Hospital requested in March 1996 for “a medical report which may be submitted to the Crimes Compensation Tribunal” in relation to his treatment at the Royal Melbourne Hospital after having been assaulted by an inmate whilst serving his sentence in prison in October 1995.
27
Although Mr Hayes implicitly acknowledges that there was some discussion with Ms Lattanzio about any prospective claim with respect to the injuries in the motor vehicle accident, I accept that she in fact only acted for him in relation to criminal offences and a crimes compensation claim in relation to an alleged assault whilst in prison in October 1995. Whether she actually advised him that it was not worth pursuing any claim in respect of the transport accident I am unable to find, as there is no evidence of that apart from what the plaintiff says which is unreliable and not specific as to whether it included any mention of a common law claim as opposed to the no-fault benefits he had been pursuing.
28
Finally, in this period the plaintiff retained Buller McLeod. He states that they were organised by his mother whilst he was in jail and he never met any of the lawyers nor did anyone come to him seeking information concerning his motor vehicle accident of November 1991[32]. However, a copy letter to the TAC dated 17 February 1997 from Buller McLeod[33] states that they were acting on behalf of Mr Hayes, and requested a copy of the TAC records in relation to payments made to or on behalf of Mr Hayes arising out of the hit and run incident involving a taxi on 29 November 1991. Documents described as coming from the file obtained from Buller McLeod [34] include a copy of a TAC investigator’s report, and of a hand written letter from Mr Hayes to the TAC about his injuries which appears to be date-stamped September 1992. It is apparent that they had some instructions in relation to his having suffered injuries in that motor vehicle accident. There is nothing to indicate any follow- up to the request from Buller McLeod prior to expiry of the limitation period or indeed after it.
29
There is nothing to indicate any consultation by Mr Hayes with solicitors between February 1997 and January 2000 when he apparently first consulted Mr Paul Simon, then of McPherson & Kelley.
30
In considering what to conclude about his state of knowledge of his legal rights, I conclude that none of the first three firms of solicitors in fact pursued the preliminaries to a common law claim for him in respect of the 1991 transport accident, but the real question is why they did not, and whether that failure is to be held against the plaintiff.
31
At no stage does Mr Hayes state on affidavit that he had no knowledge of having a potential right to claim damages or compensation (or a “common law action”) for his alleged injuries from the 1991 accident. He does state that he did not know that he needed to prove a serious injury before he could make any claim for damages[35], and that he had never been advised, and did not know prior to consulting Mr Simon, that there was a six year limitation period for a claim for damages for his injuries[36]. His generally unreliable memory, but also the specific indications already outlined that while he says he does not recall mentioning the 1991 incident or those injuries to the first or third firm, it is clear that they knew of them, lead me to put little weight on his statements in this regard.
32
Even accepting that he might not have known of a limitation period, the omission of a firm statement as to his knowledge of a potential right to claim damages is, in my view, a relevant omission, given that he was, over the period, consulting solicitors in respect of matters which clearly touched on his having suffered injuries in a motor vehicle accident on 29 November 1991 and seeking compensation – at least through the TAC’s no fault system and also apparently by way of crimes compensation in respect of those injuries.
33
The defendant argues that I should also note the failure of the plaintiff’s case to produce confirmation from any of those earlier solicitors that they did not advise him as to his common law rights, and draw an adverse inference from that omission. There is no evidence to explain the omission of any such confirmation of their advice or limited instructions from any of the three solicitors firms who previously acted, albeit a long time ago.
34
Ultimately, I cannot draw any inferences as to what those solicitors may have advised him in relation to a common law claim, but the lack of any such material or explanation for not obtaining it, and the failure through Mr Hayes’ affidavits to ever state that he had no knowledge of having a potential right to claim damages, and his description of what those firms did or did not discuss with him when compared with other material, causes me to give only minimal weight to his statements in his affidavits that the earlier three firms gave him no relevant advice in relation to potentially bringing a claim or that he had no knowledge to at least prompt him to seek such specific advice.
35
I am not satisfied that his various periods of imprisonment form a reasonable excuse for Mr Hayes not to have pursued his common law rights much sooner than he did. First, he was not imprisoned for all of the time, and although his family and work during the late 1990s may have taken a higher priority on each release, his very long inaction is not explained by imprisonment alone. Further, apart from having contact with solicitors for his criminal cases, he would have been able to communicate with other solicitors if he had sought to do so – indeed even in 2001 it is clear that he could contact Mr Simon to advise that he was being moved to Sale. Communication with lawyers from prison is no doubt more awkward than for someone at liberty in the community, but imprisonment does not explain the very many years of delay both before and after consultation with Mr Simon.
36
I am also not satisfied that drug addiction over the period up to January 2000 is a reasonable explanation or excuse for the delay. It did not stop him moving his family interstate, or maintaining quite remunerative work as a car salesman, when not in prison. This indicates that he was capable of taking some control of his own life and affairs, even if he were as he says still affected by a heroin addiction. It did not prevent him from contacting solicitors during that period.
37
The stronger argument is that his mental or psychological state, even if at least partly self-induced through drug abuse, caused him to be incapable of attending to or concentrating on his legal rights. In May 1993 he was assessed by Dr Barnes as suffering a severe post-traumatic anxiety neurosis with a significant depressive element and characterised by paranoid and irrational attitudes. Dr Barnes considered that he had become quite disordered in his thinking and was showing quite distinct defects in recent memory function. He said that from the psychiatric point of view there would be some measure of improvement and hopeful stabilisation in the future[37].
38
However, there is no psychological report of his mental state between then and July 2000 when Dr Belinda MacDonald became his family GP. She confirms that he was suffering from depression, and diagnosed post traumatic stress disorder, and was of the view that he obsessed over his difficulties, including difficulty gaining access to superannuation, legal and medical assistance, and over his ability to control his temper and not be physically aggressive, and about his injuries and the events that caused them[38].
39
The opinion of Ms Perrett-Abrahams, in December 2001, was that he was suffering from post traumatic stress disorder with symptoms of chronic depression, memory loss, sleep dysfunction, social withdrawal, agitation and headaches, with bouts of anger and episodic suicidal ideation, and was also under duress from methadone addiction. That would explain a failure to give instructions or make important decisions at that time, but I am not convinced given some of his other activities that it should be regarded as applying to his mental or emotional capacity for the entire delay of 13 or 16 years.
40
The report of neuro-psychologist Professor Simon Crowe (September 2004) indicates that Mr Hayes performed tests at a lower level than expected for visuo-spacial memory but not verbal memory, and on working memory functions, and demonstrated significant compromise on tests of planning and other functions. He found a degree of impairment of complex integrated cerebral functions but did have the ability to carry out most activities of daily living as well as before onset of this condition, and that there was mild to moderate emotional disturbance under ordinary stress. The tests and opinions were based on some history that is subject to challenge, and noted “some elements of less than genuine effort in some aspects of his performance on the assessment”, Mr Hayes having performed in an abnormal way on one of four tests of symptom validity raising some concern about less than genuine effort, but Professor Crowe regarded that as not having a powerful influence on his presentation.
41
The difficulty with the use of the report of Professor Crowe to explain and excuse the plaintiff’s failure to promptly prosecute his claim is that to the extent that it supports the view that Mr Hayes was significantly impaired in functioning, including as to memory, this report is almost exactly contemporaneous with the timing of the eventual issuing of the first Originating Motion. For that reason it does not sit consistently with the plaintiff’s mental or psychological condition being a reasonable explanation for the delay in his giving instructions.
[31] Paragraph 11, Exhibit C - Plaintiff’s affidavit of 4 March 2009
[32] Paragraph 11, Exhibit C - Plaintiff’s affidavit 4 March 2009
[33] Exhibit 1 and paragraph 9, Exhibit 1 - Affidavit of David O’Brien sworn 26 March 2009 – Ex “DOB5”
[34] Exhibit D – Ex “CH-3”
[35] Paragraph 5, Exhibit A - Plaintiff’s affidavit of 16 July 2004
[36] Paragraphs 4 and 5, Exhibit A - Plaintiff’s affidavit of 16 July 2004
[37] Paragraph 51, Exhibit 2
[38] Paragraph 52, Exhibit 2
The extent of likely prejudice to the defendant from the delay
42
There is no specific prejudice shown by the TAC by reason of the delay, and the plaintiff’s counsel argue that the more general effect of the delay is no more harmful to the defendant than the plaintiff and the detriment to the plaintiff if his claim is not allowed to proceed is far greater in that he loses a right to claim damages for what the court has found to be a ”serious injury”.
43
As to the issue of liability in the potential common law claim, the vehicle was never sufficiently identified to enable it or its driver to be located. There is a statement of an observer of the incident – Mr Jacobs, a security guard at the gate at the showgrounds - and no attempt has been made in the interim by either party to try to locate that witness. From the statement of that witness he would support the plaintiff’s version that he was hit by a taxi which immediately drove away, without any meaningful identification being obtained, but he would be unable to shed light on whether the incident resulted from a deliberate running down, and/or from any actions or provocation by Mr Hayes which might go to issues of contributory negligence, or other defences if assault or assault and battery were pleaded. In these circumstances, I find that it is unlikely that the delay in bringing proceedings has caused prejudice to the defendant in defending the issue of liability in the prospective claim.
44
There is much authority[39] for the proposition that general prejudice inevitably results from long delay, and it is impossible to know what evidence (including more accurate memory) may have been available but has been lost through the delay.
45
The active memory of Mr Hayes has been shown to be vague and unreliable, whether due to the long delay or Mr Hayes’ drug addiction or mental state. It may well be that he would have been no more reliable in his memory if his claim had been issued within the limitation period, but that is not the question I am to consider.
46
There are large gaps in medical evidence available, including there being no contemporaneous medical information in the period from November 1993 and July 2000.
47
In a statement to TAC investigators in May 1992 Mr Hayes stated that he went to see Dr Peter Marsh in Napier Street, Strathmore for medication for his neck pain and also attended another clinic where he saw different doctors and spoke of having not seen the private specialist as yet but being due to get a CT scan and that they may need to insert a pin in his neck. There was also mention of a Dr Dunne as a GP. No evidence by way of a medical report or clinical file has been produced from these clinics, nor any evidence as to any attempts to trace the doctors or their clinical records.
48
In his 4 March 2009 affidavit[40], Mr Hayes states that when he was released from prison in late 1995 he returned to his family doctor, Dr Diner, who constantly treated him for both neck pain and also for his methadone treatment. Mr Simon deposes to having written twice to a Dr Diner in early 2003 requesting medical records and reports of his treatment as a general practitioner of the plaintiff[41] but there is nothing further said or produced in relation to Dr Diner and I infer that there was no positive response to those requests.
49
The next material from a treating general practitioner comes from Dr Belinda McDonald who reported being Mr Hayes’ treating general practitioner for most matters except methadone prescription from July 2000.[42]
50
I infer that there is likely to be a lack of any evidence of medical treatment of the plaintiff between February 2002 (prison records) and July 2000 when he commenced to see Dr MacDonald, whether for injuries arising from the 1991 transport accident, various prison assaults alleged, or for drug addiction.
51
Apart from the medico-legal report of Mr Heape in November 1993, the next medico-legal report is in September 2000 from Dr Paul Grimwald.
52
I am satisfied that the absence of evidence of Mr Hayes’ medical condition from any source other than his own vague, variable and often unreliable memory, is likely to cause prejudice to the defendant in its defence of a common law claim by him, in particular because several other incidents causative of both neck pain and psychological distress occurred during the long period of delay so that causation and contributing causes are likely to be real issues.
[39] High Court in Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 at 549-50 per Toohey and Gummow JJ, as followed and adapted to the Victorian legislation since.
[40] Paragraph 11, Exhibit C
[41] Paragraphs 29 and 32, Exhibit F - Affidavit of Paul Simon sworn 13 May 2009
[42] See paragraph 46, Exhibit 2
(d) Duration of any disability
53
It was submitted that both the plaintiff’s time in prison, and the effects of his drug addiction, should be regarded as disabilities under sub-paragraph 23A(3)(d) – so that I should take their duration into account in considering “the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action”. I am not satisfied that either should be regarded as a “disability” under that sub-paragraph. While the definition in s3 (2) – “For the purposes of this Act a person shall be deemed to be under a disability while he is a minor or of unsound mind” - appears to be inclusive rather than exhaustive, I am not convinced that it includes imprisonment or drug addiction. Not only are both self-induced, they are not in any usual legal sense [43] a disability. In a practical sense they may impair ability to perform some tasks, in that imprisonment prevents freedom to attend an appointment with a lawyer or doctor, and drug addiction may impair sensory skills, but such impairments are not total when compared with minority or unsoundness of mind. Further, in the present case the evidence although incomplete indicates that Mr Hayes was not imprisoned for the whole of the relevant periods, while in prison was able to communicate with lawyers, and even be medically examined by an outside consultant. The periods when he claims to have been addicted to heroin included some of his maintaining full-time employment, resettling his family in new towns, and probably still in contact with solicitors (Buller McLeod in February 1997).
[43] Except possibly so far as imprisonment is a disqualification for voting
(e) Extent to which the plaintiff acted promptly and reasonably once he knew
of his potential claim
54
Mr Hayes in his affidavit of 16 July 2004[44] deposes that he did not know of the six year limitation period before consulting Mr Simon, nor that he had to prove a serious injury before he could make any claim for damages. Mr Simon deposes[45] that although his first consultation with the plaintiff was on 30 January 2000 and he commenced to act on his behalf in respect of a potential common law claim for damages in respect of the motor vehicle accident – in addition to a crimes compensation claim and a claim for the injury at Hanover Welfare Services in early 2000 – it was not until 2001 that he informed the plaintiff that there was a limitation period by then long-expired. It is clear that Mr Simon would have known of the limitation period himself, or, if he did not immediately, it was drawn to his attention by the response from the TAC in June 2000.
55
Mr Simon’s letters to the TAC in April and June 2000 were sent without the gathering of any medical reports. Prompt communication with the TAC to ascertain the position of any possible claim may well have been justified without waiting for medical reports, but those letters were sent some months after the first consultation.
56
Mr Simon says that he then decided to commission some medico-legal reports in relation to the plaintiff’s condition. I note that there was no affidavit from the plaintiff to the TAC until July 2004 – and it spoke more to the s.23A issue than the consequences of his injuries to the plaintiff.
57
It appears that from time to time medical reports obtained on behalf of the plaintiff were forwarded to the TAC during 2002 and 2003 but Mr Simon says that he was having difficulty contacting the plaintiff, that the plaintiff was at times in prison and at times refused to leave his home due to psychological problems, and also that his client instructed him to concentrate on crimes compensation applications. Indeed, by June 2002 it would appear that an award of crimes compensation was obtained for the plaintiff for events including the motor accident in question.[46] Mr Simon deposes that the plaintiff’s medical condition made obtaining instructions from him difficult and there was a period of time when he simply refused to leave his home and as a consequence missed medical and other appointments,[47] and also that the medical evidence was complicated because of the number of incidents involved and that there did not appear to be any medical evidence obtained in relation to the transport accident other than the Royal Melbourne Hospital report.[48]
58
He states that after the TAC refused the impairment assessment the plaintiff was concerned to proceed with the criminal injuries compensation claim and the claim against Hanover Welfare Services (the latter settled in July 2003)[49] and asserts that having adduced the medical evidence he concluded that it was appropriate to seek a serious injury certificate from the TAC and did this by forwarding on 30 July 2004 a further request for a serious injury certificate and the affidavit of the plaintiff sworn 16 July 2004.[50] The TAC refused to grant the certificate and an Originating Motion in the County Court was issued in September 2004 – seeking a finding of serious injury under s.93 of the Transport Accident Act.
59
60
Mr Simon deposes that it was his understanding that the application for an extension of the limitation period – now before the court – was to be heard after the serious injury application. I am not satisfied that there was an agreement or arrangement to that effect with the defendant because the clear tone of correspondence from the defendant from 2005 was to the effect that it urged that the s.23A application be joined in the Originating Motion and heard together with or immediately following the serious injury application. Indeed, a backsheet to counsel from Mr Simon in early 2005 is consistent with his believing that a s.23A application was before the County Court at that stage. I also note that the affidavit of the plaintiff prepared by Mr Simon and sworn by the plaintiff 16 July 2004 [51] has a County Court heading indicating anticipation of an application in the County Court for an extension of time under s.23A.
61
I do not regard Mr Simon’s delay in filing an application for an extension of time as justified, as it could have been joined in the same Originating Motion as the serious injury application, albeit needing to await the outcome of the “serious injury” finding. However, I am satisfied that that aspect of the delay should not be attributed to Mr Hayes personally, as there is nothing to indicate that he had any information about or input into the decision as to whether or not to issue it earlier or join it in the same Originating Motion. Further, I am satisfied that no prejudice beyond the cost of a further proceeding and hearing has resulted to the defendant, and in particular no significant prejudice to its ability to defend a common law action of the plaintiff if allowed to be brought.
62
Mr Morfuni argues that even if I consider that there was fault on Mr Simon’s part for delay (which he submits I should not), then that fault should not be attributed to Mr Hayes as he was entitled to believe that his claim was in the hands of competent solicitors, and also because his ability to handle his own affairs and make rational decisions was seriously compromised by his ongoing dependence on medication and his overall psychiatric condition.
63
On the evidence as it stands, and without hearing either the plaintiff or Mr Simon cross-examined as to the reasons for the delays between January 2000 and September 2004, or April 2008, I am satisfied that there was unreasonable delay but cannot conclude on the balance of probabilities whether it was wholly or partly the fault of Mr Hayes personally or Mr Simon.
[44] Exhibit A
[45] Paragraph 8, Exhibit E
[46] Paragraph 9, Exhibit F - Affidavit of Paul Simon sworn 13 May 2009
[47] Paragraph 35, Exhibit F - Affidavit of Paul Simon sworn 13 May 2009
[48] Paragraph 36, Exhibit F - Affidavit of Paul Simon sworn 13 May 2009
[49] Paragraphs 34 and 37
[50] Paragraph 39, Exhibit A
[51] Exhibit A
(f) Steps taken by plaintiff to obtain medical or legal advice and the nature of
any such advice.
64
As already outlined, the plaintiff had solicitors acting for him at various times between early 1993 and 1997. I am unable to make any finding on the evidence as to what advice he sought from them nor what advice he was given in relation to a potential common law claim for damages.
Other considerations Possible claims against solicitors
65
As already outlined, it is clear that three firms of solicitors acted for Mr Hayes during the limitation period. There is evidence that each of those solicitors knew that he claimed to have suffered injury when hit by a taxi in November 1991. There is no evidence that any of them advised him as to his common law rights in respect of the relevant transport accident. There is no evidence of why none of them did so. I disregard the plaintiff’s account of not telling the first or third of them of the incident – correspondence contradicts that. I give only little weight to his statements that he had not been advised by any of them of the need to prove a serious injury or of the existence of a limitation period. However, I am unable to speculate as to what advice the plaintiff in fact sought or was given, or what limits there were on his instructions to them. At least the first two firms had ceased to act for him well within the limitation period, and it is unclear whether Buller McLeod had also, as the last evidence of their involvement is a letter of February 1997 to the TAC.
66
In these circumstances I am unable to make any finding as to the likelihood or otherwise of any potential right of his to recover from former solicitors for his lost chance in having the limitation period expire before proceedings were issued on his behalf.
67
As to the role of Mr Simon, the limitation period had expired more than two years before he commenced to act for Mr Hayes in late January 2000, so the prospect of a recovery action against him for negligence is of an entirely different quality from those where a solicitor may have allowed the client’s limitation period to expire without taking due care to preserve or protect the client’s interests. I agree with Mr Morfuni’s submission that I should not treat as relevant any potential right of recovery by Mr Hayes against his current solicitor, Mr Simon.
68
I have already dealt with a number of aspects of the conduct of the plaintiff’s case since January 2000 relevant to how promptly and reasonably the plaintiff acted after becoming aware of his potential cause of action (assuming he was either unaware or partially so before consulting Mr Simon).
Other circumstances and considerations
69
The plaintiff’s counsel submitted that the detriment to the plaintiff if this application is refused is very great, as he would lose the right to recover damages for what I have found to be a “serious injury”. My findings on that issue were that his claim might not be as great as he alleges, in particular as to whether he could prove relevant causation of prolonged loss of earnings, or indeed of drug addiction, but I bear in mind that my findings would not bind a future judge or jury in his common law claim. The loss of that right is certainly considerable, as it is when an individual claiming to have suffered long term disability from an injury faces such a prospect. Although the TAC as an institutional defendant is not going to feel the same detriment, I should not ignore that it administers funds from the whole community and to deny it the defence of the statutory limitation period has the detriment of drawing from those funds. The decision I need to make is a synthesis of many considerations, as outlined, and in my view the detriment to the plaintiff in this case is not such as to override or outweigh all of the other factors.
70
The defendant’s counsel argued that the court should hesitate to allow Mr Hayes the indulgence of an extension of time where some of the delay he attributes to time in prison which was for fraud and obtaining benefits by deception from the TAC in respect of the 1991 accident. In other words he seeks the extension of time to enable him to sue the TAC from which he obtained some benefits fraudulently, and for which he blames the resultant prison sentence as contributing to his delay in bringing proceedings.
71
This argument may have arisen from my questioning of the plaintiff’s senior counsel as to whether there was any role for consideration of public policy in considering delay due to imprisonment or drug abuse. On reflection I have avoided addressing the issue of delay in that light. The statutory test is whether it is “just and reasonable” to extend time. I regard as ironic that the plaintiff relies for part of the reason for his delay in bringing proceedings that he was in prison for defrauding the potential defendant. However, that part of the excuse for his delay is relatively small in time, and would not of itself convince me that the limitation period should not be extended if other considerations favoured the plaintiff’s application.
Conclusions
72
I am not satisfied that there is reasonable excuse for the plaintiff’s failure to bring proceedings – or to take any steps towards reactivating his common law right by seeking a finding of “serious injury” under any of the paths in s 93 Transport Accident Act - between December 1991 and January 2000. He was in contact with three firms of solicitors over that period. I cannot make any finding as to why they did not commence any common law proceedings, although I accept that they were acting for him primarily on his criminal offences and also applications for crimes compensation. I find the plaintiff’s own evidence entirely unreliable on his disclaimer of telling them about this accident, as documents indicate the contrary, and he does not even specifically state that he did not know he might have a right to claim damages, stating only that he was not aware of the limitation period or the need to prove a “serious injury”. Ignorance of a limitation period is not sufficient to explain his inaction over a period of more than eight years, especially as he was pursuing rights as to TAC no-fault payments for loss of earnings.
73
I am also not satisfied that there was reasonable excuse for the further delay between early 2000 and September 2004 when the first court proceeding was issued. While the solicitor acting was responsible for assessing how to protect his client’s interests, there were times when Mr Hayes was not in touch or otherwise not giving instructions even after knowing of the limitation period having expired. I am not satisfied that he is not at least partly responsible for that further delay.
74
The further three years before the current application for extension of the limitation period is also in my view not reasonably explained, but of itself would not be a reason to refuse the plaintiff’s application.
75
Taking into account all of the circumstances as outlined – and synthesizing rather than balancing their weight - I find that this is a case where there was long delay, many years of it without reasonable excuse, and where there is likely to be prejudice to the defendant at least through inability to obtain contemporaneous information as to medical treatment over many years, in the context of competing theories of causation of some of the consequences alleged to result from the relevant transport accident.
76
Taking all of these matters into account, I am not satisfied that it is just and reasonable for the limitation period to be extended. It follows that the plaintiff’s application is dismissed.
IN THE COUNTY COURT AT MELBOURNE
BEFORE HER HONOUR JUDGE COHEN
SCHEDULE OF EXHIBITS
Page 1 of 1
HAYES v. TAC (NO 2)
(s23A Application)
| Number and | Party | Date |
| Identifying Mark | Short Description of Exhibit | Tendering |
on Exhibit
Affidavit of David O’Brien, sworn 26/3/09 D 28/7/09 1 together with Exhibits DOB1-DOB10
Reasons for judgment delivered 19/12/08 in D 28/7/09 2 Hayes v TAC (CI-04-04293)
Affidavit of Plaintiff, sworn 16/7/04 P 28/7/09 A
Affidavit of Plaintiff, sworn 15/11/07 P 28/7/09 B
Affidavit of Plaintiff, sworn 4/3/09 P 28/7/09 C
Affidavit of Plaintiff, sworn 5/6/09 with P 28/7/09 D exhibits CH1-CH4
Affidavit of Paul Simon, sworn 2/4/09 with P 28/7/09 E exhibits PGS1-PGS5
Affidavit of Paul Simon, sworn 13/5/09 with P 28/7/09 F exhibits PGS-1a to PGS-1o and PGS1-PGS5
Copy affidavit of Plaintiff, sworn 22/8/05 P 28/7/09 G
5
0