Hogan v Transport Accident Commission (Ruling)

[2016] VCC 933

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-05008

SCOTT WILLIAM HOGAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2016
DATE OF JUDGMENT:	7 July 2016
CASE MAY BE CITED AS:	Hogan v Transport Accident Commission (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VCC 933

RULING
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Subject:  LIMITATION OF ACTIONS

Catchwords: Application pursuant to s23A of the Limitation of Actions Act 1958 for an extension of time

Legislation Cited: Limitation of Actions Act 1958; Transport Accident Act 1986

Cases Cited:Davies v Nilsen [2015] VSC 584; Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541; Burk v Commonwealth of Australia [2002] VSC 464; Millard v State of Victoria [2006] VSCA 29; Bell v SPC Ltd [1989] VR 170; Delai v Western District Health Service [2009] VSC 151; Tsiadis v Patterson (2001) 4 VR 114; Andresakis and Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Millard v State of Victoria [2006] VSCA 29; Clark v McGuiness [2005] VSCA 108

Ruling: Plaintiff be granted an extension of time within which to commence a proceeding to recover damages for personal injuries.                

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin QC with Ms J Frederico	Maurice Blackburn
For the Defendant	Mr G Lewis QC with Ms J Clark	Solicitor to the Transport Accident Commission

HIS HONOUR:

1 By an Amended Originating Motion dated 9 October 2014, the plaintiff seeks an order pursuant to s23A of the Limitation of Actions Act 1958 extending the time within which he can bring a claim for damages for personal injuries he sustained in a transport accident that occurred on 10 November 2002.

2       If this application is successful, the plaintiff also seeks leave pursuant to the Transport Accident Act 1986 (“the Act”), to commence a proceeding to recover damages for pain and suffering and loss of earning capacity. The application for an extension of time is preliminary to that application, another Judge of this Court having earlier directed the s23A application proceed as a preliminary point.

3       The application for extension of time is supported by two affidavits.  The first is an affidavit of the plaintiff sworn 31 May 2016 which also has 22 documents exhibited to it.  The second affidavit is sworn by Katerina Patras on 28 June 2016.  That affidavit has 19 documents exhibited to it.

4       There is an affidavit in opposition to the application that has been sworn by Nicole Sharlene Carter, a solicitor employed by the defendant. That affidavit was sworn on 27 June 2016.  It has 32 documents exhibited to it.

5       Apart from the plaintiff, none of the other deponents was called for cross-examination.  The Court can accept as accurate the facts established by the evidence set out in the affidavits and the exhibits.  In deciding this application, I act on all of that evidence.

6       The plaintiff was injured when struck by a moving motor vehicle in a car park at the Matthew Flinders Hotel.  At the time, he had gone to the aid of another pedestrian and in that process was struck by the motor vehicle which reversed at speed and, then accelerated forward, striking and injuring him.[1]  The circumstances of the motor vehicle accident also gave rise to an application by the plaintiff for Crimes Compensation.[2]

[1]Exhibit SH-22

[2]Plaintiff's affidavit, paragraph [37]

7       There is no dispute between the parties as to the occurrence or, the circumstances of, the transport accident.  Having regard to the way the preliminary point was argued by the parties, the central issue for me to decide in this application is whether, having regard to the delay of nearly fourteen years, the defendant would suffer prejudice such that the application should not be granted.

8       It is necessary to have full regard to the factual matrix disclosed by the evidence.

9       The plaintiff completed a Claim for Compensation form on 14 November 2002.[3] The defendant accepted the Claim for Compensation on 18 November 2002.[4]

[3]Affidavit of Nicole Carter, paragraph [7]

[4]Affidavit of Nicole Carter, paragraph [8]

10      The plaintiff deposed that he instructed a solicitor, Paul Simon (“Simon”), to act on his behalf “in around 2006”.[5]  A file note made by one Andrea Hackwill of the defendant records the plaintiff’s solicitor phoning her on 2 October 2006. According to the file note, the defendant’s file at that time was numbered “02/65055”.  The note also records “we discussed the claim and it became apparent he wants to put in a SI request under the protocols”.[6]

[5]Plaintiff's affidavit, paragraph [22]

[6]Exhibit SH-1

11      The plaintiff deposed that he instructed Simon to lodge a serious injury application with the defendant on his behalf and this was done on 21 May 2008 when Simon, who was then a practitioner with Mulcahy Mendelson Round & Darling, filed an application for a serious injury certificate in this Court.[7]  On its face the application provided a number of medical reports, pay records and, taxation returns relating to the plaintiff.  The application was supported by an affidavit of the plaintiff sworn 21 May 2008.  It was a brief document containing minimal information relating to the nature of the plaintiff’s injuries and the consequences of those injuries.[8]

[7]Exhibit SH-2

[8]Exhibit SH-3

12      The plaintiff’s serious injury application dated 21 May 2008 and his affidavit in support were served upon the defendant, which acknowledged receipt of the documents by letter dated 2 June 2008.[9]  That letter pointed out that the documents referred to in the affidavit had not been served but the defendant did have copies of medical reports from doctors Grossbard and McCaffery.  The defendant wrote a further letter two days later, on 4 June 2008, which acknowledged receipt of a letter from Simon dated 3 June 2008 and, that letter had enclosed information relating to the plaintiff’s employment at the Matthew Flinders Hotel, a medical report from Dr Edward Cole dated 15 September 2004 and, a note from Mr Rehfisch dated 28 November 2002.[10]

[9]Exhibit SH-4

[10]Exhibit SH-5

13      On 18 June 2008, the defendant wrote to Simon confirming a telephone conversation. The letter confirms the defendant’s view that the medical evidence provided on the plaintiff’s behalf at that time was over four years old. The letter also records that the defendant’s payment system indicates that no payment has been made for medical treatment to the plaintiff by the defendant since 2003. The letter requested clinical notes up-to-date from any treating doctors.[11]

[11]Exhibit SH-6

14      A further letter from the defendant to Simon dated 31 July 2008 made a similar complaint and stressed that the defendant was unable to properly assess the plaintiff’s serious injury application until up-to-date medical evidence had been provided.[12]

[12]Exhibit SH-7

15      On 1 August 2008, the defendant wrote to Simon.  The letter referred to the previous correspondence and also warned in the following terms:[13]

“As you will no doubt be aware, the six-year limitation period is soon to expire (November 2008).”

[13]Exhibit SH-8

16      The plaintiff has deposed that he was not provided with a copy of the defendant’s letter dated 1 August 2008 and, nor did he discuss it with Simon.[14]

[14]Plaintiff's affidavit, paragraph [23]

17      On 17 October 2008, Simon wrote to the defendant.  His letter advised that arrangements had been made to have the plaintiff medically examined to obtain up-to-date opinion and assessment of his injuries. The letter requested the defendant to consent to an extension of the limitation period. It provided as follows:

“We would be grateful if you could seek your client’s instructions to consent to an extension on limitations (sic) period to enable this to be done, noting that we would undertake to issue an Originating Motion within 28 days of the date of any determination to refuse our client’s application.  We look forward to hearing from you.”[15]

[15]Exhibit SH-9

18      The plaintiff has deposed that he was not informed of the undertaking referred to in his solicitor’s letter or, of the applicable timelines.[16]  On 31 October 2008, the defendant replied by letter confirming “that the common-law waiver policy will apply in this matter”.[17]

[16]Plaintiff's affidavit, paragraph [27]

[17]Exhibit SH-10

19      Approximately nine months later, on 3 August 2009, the defendant wrote to the plaintiff’s solicitor responding to the plaintiff’s request for a serious injury certificate said to be “in accordance with the Transport Accident Commission common law protocols (the protocols)”.[18]  The defendant advised that having considered the plaintiff’s application for a serious injury certificate and reviewed all relevant material in its possession, it was unable to grant a serious injury certificate.  The letter further advised that the defendant considered that the plaintiff had not sustained a serious long-term impairment or loss of a body function with respect to his left wrist and lower back.  It also advised that the defendant did not consider the plaintiff suffered from any severe long-term mental or severe long-term behavioural disturbance or disorder.  The letter also enclosed a medical report and other documents gathered by it.  The letter was silent on the issue of the limitation period having expired.

[18]Exhibit SH-11

20      The plaintiff has deposed that he was not informed by Simon of the rejection of his serious injury application.[19]

[19]Plaintiff's affidavit, paragraph [29]

21      Simon did not lodge an Originating Motion seeking an extension of time within which to commence proceedings within 28 days of 3 August 2009 or at all.  The plaintiff deposed, as I have said earlier, that he had no knowledge that Simon had given an undertaking to do so and he did not instruct him to give such an undertaking.

22      There is no letter or other document from Simon to the plaintiff advising him that the defendant had rejected his application.  There is a letter on 10 November 2009 (the seventh anniversary of the transport accident) enclosing a fee waiver document.[20]

[20]Exhibit SH-12

23      On 10 November 2009, Simon wrote to the Court enclosing a Writ and, a request to enter a list and, an application for waiver of payment of fee.[21]

[21]Exhibit SH-13

24      Almost another year passed before there is any further recorded action by Simon on the plaintiff’s behalf.  On 5 November 2010 (five days before the eighth anniversary of the transport accident), Simon wrote to the Court enclosing an Originating Motion and, a request to enter a list and, a cheque for $517.40.[22]  The plaintiff has deposed that he was not aware of this and, he had thought that his application was ongoing.[23]

[22]Exhibit SH-14

[23]Plaintiff's affidavit, paragraph [31]

25      The plaintiff has also deposed that from the time of the filing of his application in May 2008, he regularly phoned Simon seeking advice as to progress with his application.  He said that Simon was difficult to reach but, when he did speak with him, Simon would advise him that his claim was “ongoing”.  Importantly, the plaintiff says:

“Mr Simon never said to me that there was a time limitation or that we needed to do anything by a particular date.  He often said that he was calling the TAC to ‘chase them up’ about my claim.”[24]

[24]Plaintiff's affidavit, paragraph [32]

26      The evidence shows that between May 2011 and November 2011, Simon continued to correspond with the defendant on behalf of the plaintiff.  On 8 November 2011, he wrote, enclosing a further medical report, and asked the defendant to “reconsider” the plaintiff’s application.[25]  On 21 December 2011, the defendant wrote to Simon advising “that the decision to deny your client’s serious injury application will remain unchanged”.[26]

[25]Exhibits SH-15 to SH-18 inclusive

[26]Affidavit of Nicole Carter, paragraph [18]

27      The plaintiff has deposed that he was unaware of this correspondence and as far as he was concerned, Mr Simon was taking the necessary steps to further his application.[27]  By this time nine years had elapsed since the transport accident.

[27]Plaintiff's affidavit, paragraph [33]

28      The plaintiff became frustrated because he could not contact Simon and because of lack of progress with his claim.  On 23 July 2012, he telephoned the defendant direct and was told that it had no contact with Simon for “years”.[28]

[28]Plaintiff's affidavit, paragraph [34], and Exhibits SH-19, SH-20

29      In October 2013, the plaintiff retained his current solicitors, Maurice Blackburn. That firm wrote to the defendant in October and November 2013 and an Originating Motion was lodged with the Court on 9 October 2014.

30      Between about October or November 2012 and October 2013, Maurice Blackburn have attempted to obtain the plaintiff’s file from Simon and/or to construct a file based on documents supplied by the defendant.[29]  On 8 November 2013, Ms Patras wrote to the defendant advising that Maurice Blackburn was then unable to ascertain whether the defendant had made an impairment assessment determination.  They requested that the impairment assessment process commence, and put the defendant on notice in respect of the plaintiff’s potential common law claim for damages.  The letter included the following:

“We understand that an application for a serious injuries certificate was made by Mr Hogan’s previous solicitors, but are presently unable to ascertain whether, and if so how, that application progressed.

Please advise whether a serious injury application was made pursuant to the protocols, and if so, how this application was dealt with.”[30]

[29]Affidavit of Katerina Patras, paragraphs [1] to [13]

[30]Exhibit KP-8

31      On 21 November 2013, the defendant responded.  It enclosed copies of medical reports from Mr Garry Grossbard dated 25 February 2004, and from Dr Edward Cole dated 15 September 2004 and, from Mr Geoffrey Littlejohn dated 7 July 2009.  The letter stated that based upon the information in those reports, as well as all of the information on file, the defendant was unable to consider the plaintiff’s request because it considered the plaintiff unlikely to be entitled to an impairment benefit.  The letter invited Maurice Blackburn to provide any further information in its possession that may indicate that the plaintiff is entitled to an impairment benefit.[31]  By a separate letter of the same date, the defendant advised Maurice Blackburn that the plaintiff’s application for a serious injury certificate was denied on 3 August 2009.[32]

[31]Exhibit KP-9

[32]Exhibit KP-10

32      From November 2013 until September 2014 Maurice Blackburn was unable to contact the plaintiff.  The plaintiff had been working in outback Queensland and that explained the difficulty in contacting him.  On 3 October 2014, the plaintiff confirmed his instructions to Maurice Blackburn to proceed with his case.[33]  The Originating Motion was issued six days later.

[33]Affidavit of Katerina Patras, paragraph [20]

33      According to the affidavit of Katerina Patras, in November 2014, Maurice Blackburn requested medical records from treating doctors and, joint medico-legal examinations were arranged with the defendant for the purposes of re-determining impairment and assessing serious injury.[34]  Since then, the plaintiff has undergone joint medical examinations with Mr Rodney Simm[35] and with Dr Nigel Strauss.[36]

[34]Paragraph 22

[35]Affidavit of Katerina Patras, paragraph [24]

[36]Affidavit of Katerina Patras, paragraph [27]

34      On 22 July 2015, Maurice Blackburn served a copy of the Originating Motion on the defendant. On 15 October 2015, Maurice Blackburn wrote to the defendant enclosing an application for serious injury certificate.[37]

[37]Affidavit of Nicole Carter, paragraph [22], and Exhibit NSC-14

35      The defendant has not responded to the plaintiff’s further request for a serious injury certificate.  According to the affidavit of Nicole Carter, this was because “it had previously denied” the plaintiff’s earlier application on 3 August 2009.[38]  The defendant advised Maurice Blackburn on 13 April 2016 that it intended to rely on the statute of limitations defence.[39]

[38]Affidavit of Nicole Carter, paragraph [24]

[39]Exhibit NSC-16

36      On 26 October 2015, Ms Patras wrote to the defendant requesting that an impairment determination be made.  That letter enclosed an affidavit in support of the plaintiff’s application dated 14 October 2015 and referred to thirteen other medical reports already in the defendant’s possession.  The names of the various doctors and the dates of the reports are set out in the letter.[40]

[40]Exhibit KP-14

37      In her affidavit, Miss Carter deposes that the defendant has been generally prejudiced by the effluxion of time since the transport accident.  In particular, she deposes that the defendant is prejudiced in its ability to properly assess quantum if a serious injury certificate were to be granted giving the plaintiff leave to issue common law proceedings for the recovery of damages.  She contends that the defendant is prejudiced in its ability to assess pecuniary loss damages due to its inability to obtain full financial records relating to the plaintiff.[41]  She refers to a number of previous known employers of the plaintiff and the fact that they hold no records relating to his employment.  She also refers to attempts made by the defendant to obtain financial information from his accountant who is now deceased.[42]

[41]Affidavit of Nicole Carter, paragraphs [26] to [27]

[42]Affidavit of Nicole Carter, generally paragraphs [28] to [38]

38      The plaintiff was called to give evidence.  He swore that the contents of his affidavit sworn 31 May 2016 were true and correct.[43]  He was cross-examined by Mr Lewis QC, Senior Counsel for the defendant.  He agreed he may have discussed with his previous solicitor, Simon, the need to claim a serious injury certificate but he cannot now remember whether or not he did.  He said that he did not discuss with Simon the six-year time limit for bringing an action.[44]  He said he became aware of the six-year time limit when he discussed the matter with his new solicitors, Maurice Blackburn, in 2012.[45]

[43]T7

[44]T8

[45]T8

39      The plaintiff gave evidence of his frustrations with attempts by him to contact his previous solicitor, Simon, which led eventually to him going to Maurice Blackburn.[46]  He agreed that there are no taxation returns or other financial statements relevant to his earnings available for the years 2011 to 2015.  He said a lot of documents had gone missing from his home.  He said he had been able to retrieve bank statements.[47]  The plaintiff gave evidence he had operated his own business as a truck driver for about six years from 2004 and that he has no accurate recollection of his earnings.[48]

[46]T9

[47]T10

[48]T11

40      In re-examination, the plaintiff said he blocked his telephone number so that his previous solicitor would not recognise it when he called in an attempt to have Simon take his call.  He said Simon would never take his call and all he was doing was trying to find out from his solicitor what was going on with his claim.[49]

[49]T11

41 Section 23A of the Limitation of Actions Act provides the Court with a general discretion, if it decides it is just and equitable to do so,[50] to extend the time within which a cause of action may be brought in cases where the plaintiff claims damages for personal injuries. In making its decision, the Court must have regard to all of the circumstances of the case, including a number of factors found set out in s23A(3).

[50]Section 23A(2)

42      In Davies v Nilsen,[51] Justice J Forrest dealt with an application for an extension of time pursuant to s23A(2) of the Limitation of Actions Act.  At paragraphs 43 and 44, in his customary helpful style, his Honour set out the relevant legal principles that a court must apply in deciding an application under the section.   He said as follows:

[51][2015] VSC 584

“Applicable principles

43Ms Davies’ claim is statute barred by the Limitation Act.  The principles applicable to an application for extension of time are well known[52] and it is not necessary to recite them in any detail.  It suffices to say the following:

[52]See, for instance, Jeremy Ruskin, ‘Extension of Time Limits under the Limitation of Actions Act 1958’, (1979) 53 Law Institute Journal, 178.

A claim arising out of a transport accident is statute-barred six years after the date of accrual of a cause of action – invariably the date of the accident.[53]

[53]Limitation Act s5(1)

A limitation period is imposed by the legislature for good reasons of public policy and should not be regarded as a mere signpost.[54]

[54]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-553; Clark v McGuiness [2005] VSCA 108, [51]

Having said that, since 1973, in this State, the legislature has seen fit to enable a claimant, in a case where it is just and equitable to do so, to apply for an extension of time to bring their claim.[55] The provision, s 23A, is beneficial and provides the Court with a wide discretion as to whether an extension of time ought to be granted.

[55]Limitation Act s23A(3)

Whilst the primary consideration in a s 23A application is whether it is ‘just and reasonable’ to extend the period in which to bring a claim,[56] the legislature has identified six non-exhaustive criteria to be considered by a court in such an application –

[56]Limitation Act s 23A(2)

(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.[57]

The Plaintiff carries the onus of establishing that it is just and reasonable to grant an extension of time.[58]

The right of a Plaintiff to bring a case against a former solicitor for failing to initiate a proceeding within time is a relevant consideration in determining whether to grant an extension of time.[59]  The weight to be given to this consideration depends upon the circumstances of the case.[60]

44.The task of the trial judge in determining such an application is not unlike that of the imposition of a sentence in a criminal trial: the synthesis of competing considerations underpinned by the proposition that the Plaintiff bears the onus of persuasion.[61]

[57]Limitation Act s 23A(3)

[58]Bell v SPC Ltd [1989] VR 170, 174-175; Delai v Western District Health Service [2009] VSC 151, paragraph [21]

[59]Tsiadis v Patterson (2001) 4 VR 114, [27]-[28]. See also Andresakis and Skouteris v Alexus Holdings Pty Ltd (2006) 68 NSWLR 507

[60]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517, paragraph [86]

[61]Tsiadis v Patterson (supra), [33]; Millard v State of Victoria [2006] VSCA 29, paragraph [42]; Clark v McGuiness [2005] VSCA 108, paragraphs [38]-[40]

43      In deciding this application, I have applied the relevant principles as enunciated so clearly by Justice Forrest in Davies.

44      In his submissions opposing the application, Mr Lewis relied upon the general prejudice caused to the defendant by the passage of time since the occurrence of the transport accident.  About thirteen-and-a-half years have passed and there can be no doubt that there is a general prejudice to the defendant caused by the passage of time.  Mr Lewis relied upon the principles enunciated by the High Court in Brisbane South Regional Health Authority v Taylor[62] and Burk v Commonwealth of Australia,[63] per Justice Bongiorno.

[62](1996) 186 CLR 541

[63][2002] VSC 464

45      Mr Lewis referred to the likelihood of a claim by the plaintiff for damages for past and future economic loss.  He submitted that in addition to general prejudice, the defendant suffers specific prejudice caused by the delay post November 2008.  He submitted that the defendant could no longer make enquiries to find out the nature of the work that was undertaken by the plaintiff in the years after 2008 for which there is no documentary trail as to the nature of the work he was performing.  He submitted that there were two issues involved here.  Firstly, there was the prejudice occasioned to the defendant in either calculating or, testing the amount claimed by the plaintiff for damages for past or future economic loss.  Secondly, there was the prejudice occasioned by not being able to compare the nature of the work being undertaken by the plaintiff with the injuries he claims.  The latter prejudice also impacts upon the defendant’s ability to respond to the plaintiff’s claim for general damages for pain and suffering.

46      Mr Lewis also referred to the strength of the plaintiff’s claim against his former solicitor, Simon.  Both parties agreed here that the plaintiff’s potential claim against his former solicitor in negligence is a strong one.  Mr Lewis submitted that was a relevant factor to be taken into account by me in the exercise of my discretion and this was not disputed by Mr Tobin.  However, on this issue, relying on Millard v State of Victoria,[64] Mr Tobin submitted that the neglect of Simon (which is obvious) should not be visited upon the plaintiff.

[64]Supra

47      Mr Tobin conceded (appropriately) that there was a general prejudice to the defendant caused by the lapse of some thirteen-and-a-half years.  Addressing the issues of specific prejudice, Mr Tobin submitted the defendant was not prejudiced to any great extent.  He pointed to the fact the plaintiff had made a claim for statutory no fault benefits many years ago and this had been recognised by the defendant paying his medical expenses and loss of earnings then claimed.  He submitted there is no dispute on the evidence the plaintiff had been attending upon the defendant for a number of years.[65] 

[65]T26

48      The defendant, he submitted, had long ago investigated the injury and had paid compensation.  Indeed it had investigated and disallowed an application for a serious injury certificate for which it had obtained medical opinion.  Further, the defendant has investigated and allowed an impairment assessment for which it also obtained medical opinion.

49      As to the claim for loss of past and future earnings, Mr Tobin submitted there is no real prejudice to the defendant.  He submitted the defendant knew of the plaintiff’s earning capacity at the time of the transport accident because it had his records at that time.  Further, the defendant arranged the plaintiff’s rehabilitation after the transport accident in which he was injured and paid for his subsequent medical treatment.

50      Having considered all of the evidence submitted in this application and the arguments advanced, I have concluded that it is just and equitable to extend the time by which the plaintiff must bring an application claiming damages for personal injuries.  I accept each of the submissions advanced by Mr Tobin on behalf of the plaintiff.

51      I have read all of the plaintiff’s affidavits and I have seen him cross-examined. I have concluded that the plaintiff is a witness of truth.  I accept his evidence that he instructed Simon, a legal practitioner, to act on his behalf to recover compensation for his personal injuries.  I accept his evidence that he was not at any time advised by Simon that he must commence a proceeding within six years of the transport accident.  I accept his evidence that he had a great deal of difficulty even speaking with his solicitor and, when he did so, he was advised by his solicitor that his claim was “ongoing”.  In this regard, the plaintiff was misled.

52      In my view, the evidence clearly shows that the plaintiffs delay of nearly fourteen years was caused by the fact he was let down by his legal practitioner, Simon. Not only did Simon fail to give the plaintiff proper legal advice, but when he did speak to the plaintiff, I find that he misled the plaintiff into believing that everything was under control.  I have seen sufficient evidence on this application to conclude that Simon did not know what he was doing.  In my view, his actions are can be described as incompetent.

53      I find that the plaintiff would likely have a good cause of action in negligence against his former solicitor; however, on balance with the other evidence, I have concluded that this should not preclude the plaintiff from bringing a proceeding against the defendant.

54      Although I accept that the defendant suffers a general and specific prejudice because of the lapse of time since the transport accident, on the whole of the evidence, both the general and specific prejudice, in my view, are minimal.

55      From the evidence, I have concluded a number of matters that collectively persuade me it is just and equitable that the plaintiff be granted the relief that he seeks.  First, the plaintiff made a claim for medical and like expenses and loss of earnings to the defendant in November 2002.  The defendant accepted that claim and paid out on it.  The defendant was on notice of the plaintiff’s likely claim for damages for personal injuries from that time.  It was from that time that the defendant was aware and had evidence of the nature and extent of the plaintiff’s injuries and the likely consequences of those injuries to him.  It was also aware of the nature of the plaintiff’s employment and his likely earning capacity as a man with few skills and limited training.

56      Second, in October 2006, the defendant was advised by telephone by Mr Simon that the plaintiff would make an application for a serious injury certificate.  A request followed in writing on 21 May 2008.  The application included copies of a number of medical reports available at that time, pay records and the plaintiff’s taxation returns then available. The defendant has therefore had all of this evidence in its possession for the last eight years.

57      Third, the defendant was alert to the fact the time limit was about to run, at least in August 2008, when it wrote to Simon warning of this fact.  At this time, it had in its possession the plaintiff’s serious injury request which it was yet to determine.

58      Fourth, the plaintiff’s solicitor gave an undertaking, without the plaintiff’s instructions, to issue an Originating Motion within 28 days of the defendant rejecting the serious injury application.  At no time did the plaintiff’s solicitor advise him of the limitation period or, of the need to commence a proceeding for damages within the six-year time limit.

59      Sixth, on 3 August 2009, the defendant, having considered the evidence submitted to it, rejected the plaintiff’s serious injury application.  The letter of rejection makes it clear that the defendant at that time had a full understanding of the nature of the plaintiff’s injuries and the way his claim was put.  In my view, the prejudice argued that the defendant will suffer should the claim now proceed, caused by delay, is somewhat overstated, because the defendant has been on notice and had full knowledge of the kind and extent of the plaintiff’s injuries for many years.  When the defendant decided to reject the plaintiff’s application for a serious injury certificate, it did not say it lacked information.  It did not claim then to have been prejudiced in any way.

60      Seventh, the plaintiff was not advised by Simon that the defendant had rejected his serious injury application.  The plaintiff was also not advised that Simon had filed a Writ on 10 November 2009 or, an Originating Motion on 5 November 2010.  These steps were taken by Simon without instructions.

61      Eighth, the plaintiff regularly telephoned Simon seeking advice as to progress with his claim.  He had difficulty speaking to him because the solicitor did not return his calls.  But when he did so, I find the solicitor misled the plaintiff by telling him his claim was “ongoing” and, the solicitor never advised the plaintiff of critical issues, such as time limits or the need to apply for an extension of time.

62      Ninth, by December 2011, Simon had asked the defendant to reconsider the plaintiff’s serious injury application. The defendant chose not to respond. However, even at this time, the defendant was clearly on notice that the plaintiff still wanted a serious injury certificate and it took no steps, it seems, to protect its position.  There is no evidence the defendant took any steps to inform itself either about the up-to-date position and extent of the plaintiff’s injuries, the consequences of them for the plaintiff or, of matters relating to the plaintiff’s then earning capacity.  Instead, it seems it made a deliberate decision to remain silent.

63      Finally, since November 2014, after Maurice Blackburn took over acting for the plaintiff, the plaintiff has undergone at least two joint medical examinations with both Dr Simm and Dr Strauss.  In these circumstances, it cannot be said the defendant has been badly prejudiced by not being able to fully investigate the plaintiff’s injuries and capacity because of the delay.

64      The plaintiff, for a number of years, has apparently carried on work as a truck driver.  The defendant would have no difficulty in calling evidence of his likely earnings should there be a claim put by the plaintiff for loss of past or future earnings which it considers to be untenable.  There must be available to the defendant expert evidence of comparable earnings of a truck driver over a long period of time.  I am not satisfied the specific prejudiced which the defendant claims to have suffered caused by the plaintiff’s financial records not being available cannot be overcome.   If not fully, then at least to a considerable extent.  Importantly, at trial, the plaintiff must prove his case for a claim for past and future economic loss and must first give particulars.  I do not accept that the delay has prejudiced the defendant from properly responding to such a claim.

65      The plaintiff has discharged the onus which he bears of demonstrating that it is just and equitable that he be granted an extension of time within which to commence a proceeding for damages for personal injuries resulting from a transport accident which occurred on 10 November 2002.

66      I will hear the parties on appropriate orders and costs.

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