Howlett v Transport Accident Commission (No 2)
[2014] VCC 153
•26 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04750
| GAY MARCIA HOWLETT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 21 February 2014 | |
DATE OF JUDGMENT: | 26 February 2014 | |
CASE MAY BE CITED AS: | Howlett v Transport Accident Commission (No 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 153 | |
REASONS FOR JUDGMENT
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Subject: PRACTICE AND PROCEDURE
Catchwords: Limitation of Actions – application for extension of time – prejudice
Legislation Cited: Limitation of Actions Act 1958, s23A; Transport Accident Act 1986
Cases Cited:Delai v Western District Health Service & Anor [2009] VSC 151; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114; Clark v McGuinness [2005] VSCA 108; Bell v SPC Ltd (1988) VR 123; Millard v State of Victoria [2006] VSCA 29; Edwards v Kennedy [2009] VSC 74; Richardson v Transport Accident Commission [2013] VCC 1499
Judgment: Application granted – extension of period of limitation applicable to the cause of action.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Scanlon QC with Mr P Bourke | Shine Lawyers |
| For the Defendant | Mr P Rattray QC with Mr M Klemens | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This transport accident occurred on 25 July 2002.
2 This application to extend time beyond the six-year expiry date of 24 July 2008 follows my granting of leave to bring proceedings pursuant to the serious injury provisions of the Transport Accident Act 1986 on 7 February 2014.
3 The Originating Motion was issued on 20 October 2010, seeking the extension of time, as well as the serious injury leave. That Originating Motion was served on 11 October 2011.
4 Counsel agreed this application falls to be determined under s23A of the Limitation of Actions Act 1958 (“the Act”) and not under s27L. Due to those two sections being virtually mirrors of each other, except for one sub-section, authority on s27L is of assistance.[1]
[1]Delai vWestern District Health Service & Anor [2009] VSC 151 at paragraph 21
5 Essentially, the test is whether it is just and reasonable to extend the limitation period having regard to all the circumstances of the case, including, but not limited to those set out in s23A(3)(a)−(f).
6 The plaintiff bears the onus of establishing it is just and reasonable. At least four policy reasons are behind this onus being on the plaintiff.[2] A number of competing considerations must be synthesised in reaching a conclusion about whether time should be extended. Consideration of the conduct of the plaintiff and the defendant come into this as well as the effect of the outcome on them.[3] The essence of this case is really the extent of any established prejudice and likely prejudice to the defendant. It was described by the defendant as the central issue.[4] General prejudice “caused by the effluxion of time” and “actual” prejudice were both relied on by the defendant.[5] I will deal with that later.
[2]Brisbane South Regional Health Authorityv Taylor (1996) 186 CLR 541
[3]Tsiadis v Patterson (2001) 4 VR 114 at paragraph 33
[4]Transcript (“T”), T19
[5]T22
7 The exercise of the discretion to extend time was intended to be a broad one.[6]
[6]Clark v McGuinness [2005] VSCA 108 at paragraph 12
8 The rationale for the existence of time periods and the interaction between those time bars and prejudice have been commented on at length.[7] While the scheme of the Victorian s23A provision has been distinguished from the Queensland counterpart, the general principles regarding prejudice and its impact on a fair trial still apply.[8]
[7]Brisbane South Regional Health AuthorityvTaylor (supra)
[8]Tsiadis vPatterson (supra) at paragraphs 20-22; Clark v McGuinness (supra) at paragraph 64
9 Potential prejudice is also a consideration the Court should take into account but it is no more than one of the factors that must be considered.[9] It remains that the overriding question is, having regard to all the circumstances, is it just and reasonable to extend the period.[10]
[9]Clark v McGuinness (supra) at paragraph 39
[10]Bell v SPC Ltd (1988) VR 123 at pages 125-126; Clark v McGuinness (supra) at paragraph 39
10 The parties agreed the delay I need to consider is from 25 July 2002 until 1 February 2011.[11] On that last date, the Transport Accident Commission (“TAC”) were advised by Shine Lawyers of the application for serious injury and the filed Originating Motion.
[11]T122-124, 132
11 The effluxion of time is of course relevant to the capacity of evidence to be gathered and to witnesses’ memories. A general prejudice can be shown from just the passage of time in some cases. It is worth considering for a moment the times usually involved in Victorian litigation of this type these days. With the advent of the “serious injury” hurdle a plaintiff has to overcome, it has been recognised legislatively that different considerations apply to such plaintiffs. Those injured persons who have to go through the serious injury process, either under the Transport Accident Act 1986 or the Accident Compensation Act 1985 are treated specially under s27B. While that part of the Act does not apply to this 2002 transport accident, it is, in my opinion, a recognition that issues of time have proved to be somewhat different for these injured persons than for a person who does not have to go through the serious injury process.
12 Perhaps on one view this might be seen as some legislative acknowledgement of the slowing down of the process between a tort and trial in these jurisdictions due to the steps that a plaintiff must follow. It is worth also noting the reality of the time it takes the Court to deal with the heavy list of serious injury applications awaiting judgment. The time awaiting a hearing is considerable.
13 The plaintiff injured in a transport accident must await clear medical stability of the injuries, choose the identifiable injury that he or she is going to rely on as serious before even those advising the plaintiff can form any educated opinion about whether to lodge a serious injury application. An AMA impairment assessment has to be sought. A decision then has to be made as to whether an originating motion ought to be issued and then the plaintiff joins the long queue in this Court awaiting determination of the serious injury issue.
14 What this has led to is a blowing out, as it were, of the time between a relatively simple rear-end motor collision such as this one, getting to the common law trial stage when compared to previous times for litigants in this state.[12]
[12]T131-132
15 It is not unusual for jury trials dealing with workplace and transport accidents to be hearing evidence about events that are ten or more years old. Witnesses in this Court are giving evidence of such matters daily and being required to cast their minds back that far. These comments about the current legal system are in no way determinative of this application on the question of prejudice. They just put into some context the general time lag that often occurs these days between the time of a workplace or road traffic tort and when evidence is presented and witnesses examined at the common law trial as to their recollection of events and conversations.
16 This is a relatively simple rear-end collision. Fortunately, in this case, the events are about as straightforward a factual matrix as one could get in tortious litigation.
17 I do not accept the argument that the defendant is generally prejudiced by the effluxion of time and its effects on the ability to gather evidence and for witnesses to recall the relevant events in all the circumstances of this uncomplicated fact situation.
18 The essential facts are relatively straightforward. Only two vehicles were involved. It is not an intersection collision. The plaintiff’s vehicle had stopped. The defendant has the plaintiff’s contemporaneous police statement and a police report.[13] The defendant has contacted the truck driver who drove into the rear of the plaintiff’s vehicle and he has been cooperative with his insurer. He has provided his written account.
[13]Joint Court Book (“JCB”) JCB 5−6, 31.2 − 31.7, 40−41
19 I find the truck driver’s recollection of events is very good. His affidavit indicates he can recall he used to carry five loads of plaster a day on the truck, the time of day of the collision, the name of his passenger/truck jockey and the wet road conditions. He recalls what the plaintiff’s car did prior to the collision, that his truck was loaded and even the conversation he had with the plaintiff after the collision. He also recalls some details about the respective damage to both vehicles.[14]
[14]JCB 40−41
20 I do not accept that the recollection of the truck driver was poor as deposed to by the solicitor for the defendant.[15]
[15]JCB 48.1 − 48.4
21 I am not satisfied the truck jockey, Michael Dipthorne, who was seated in the truck, cannot be located. Nor am I satisfied that if he was located he could add much more to the truck driver’s quite extensive recollection of events. The search for the truck jockey does not detail any telephone book or any electoral roll search or sufficient details from the investigation firm to satisfy me this potential witness is not available.[16] The extent of any search has not been established on the evidence.
[16]JCB 48.1−48.4
22 I do not accept there is any prejudice on the current evidence in relation to Michael Dipthorne’s availability or his potential capacity to assist the defendant.
23 Consideration of prejudice is often central to these applications, as it is in the current one. The task has been described as one that involves consideration of whether the prejudice is so significant as to outweigh any legitimate claim by the plaintiff and make the imposition unjust and unreasonable.[17] It really reduces to considering whether or not the defendant would have a fair trial.[18]
[17]Clark v McGuinness (supra) at paragraphs 12 and 26
[18]Millard v State of Victoria [2006] VSCA 29 at paragraph 41; Edwards v Kennedy [2009] VSC 74 at paragraph 83; Tsiadisv Patterson (supra) at paragraph 31; Brisbane South Regional Health Authorityv Taylor (supra) at page 550
24 Looking at the various matters set out in the section, the length and reasons of delay on the part of the plaintiff have to be evaluated under sub-paragraph (a). The length of the actual delay is not inordinate in the context of litigation involving the serious injury “gateway” jurisdiction. The reasons for the delay are essentially the plaintiff understanding that she had one of two broad paths to follow for payment of her medical expenses and compensation benefits following the accident. Those paths were to follow her WorkCover rights or her TAC rights. She understood they were mutually exclusive in the sense of if one was pursued there were no rights remaining the other way.[19]
[19]JCB 12-13; T36-37, 70-71
25 I accept she had an honest failure to understand what I find was essentially sound advice. Namely, she ought to take the WorkCover path as the treatment expenses were covered indefinitely, as opposed to the limited TAC scheme for payment of medical and like expenses.
26 I accept the path to follow that was foremost in her mind would have been the one that offered the best shelter from her having to pay expensive ongoing treatment. After almost twelve years, her considerable treatment is still ongoing and has been paid for all along by WorkCover.[20] She chose well in that regard.
[20][2014] VCC 57, Serious injury judgment, 7 February 2014, paragraphs 12−15 and 51
27 I accept she understood the legal advice about two paths being open to her and quite honestly thought that there was no more involvement of the TAC in terms of the rights that she could pursue. The delay has not made the chances of a fair trial unlikely.[21]
[21]Brisbane South Regional Health AuthorityvTaylor (supra) at page 550
28 Under sub-paragraph (b), I have already dealt with likely prejudice and the extent of any potential and any actual prejudice to the defendant. I do not accept there is any potential or actual prejudice in this case that is significant. Sub-paragraphs (c) and (d) are not to the point in this application.
29 Sub-paragraph (e) requires me to consider the extent to which the plaintiff acted promptly and reasonably once she knew the potential negligence of the other driver might be capable of giving rise to an action for damages. That concept really applies to a situation where legal liability in the sense of negligence is not known. There is no evidence of any lack of knowledge in relation to negligence. This really needs to be considered in the context of the plaintiff, who was advised of her rights, but had a misunderstanding of the legal situation as between WorkCover and the TAC. I do not find there was anything unreasonable or lacking in promptitude in terms of the plaintiff’s actions, when one takes into account what I accept was her misunderstanding of the situation open to her in terms of legal redress.
30 Under sub-paragraph (f), I do not find there are any matters that are relevant in relation to the steps taken by the plaintiff or not taken by the plaintiff in relation to seeking advice in all the circumstances of this case.
31 The defendant argued there was prejudice in relation to defending the case on liability. Potential prejudice is to be considered, together with due regard to all the circumstances of the case. The burden is on the plaintiff to demonstrate why an extension ought to be granted. It has been said a lapse of time does warrant an inference of some prejudice as memories fade. Also, evidence can be lost.[22]
[22]Clark v McGuinness (supra) at paragraph 85
32 In this case, I am satisfied that neither actual nor even potential prejudice has occurred on the question of liability. There has been no loss of evidence that is likely to amount to anything of substance. A fair trial can be had in spite of the effluxion of time.[23]
[23]Millard vState of Victoria (supra) at paragraph 41
33 Different adjectival descriptions are used in some of the authorities. Accordingly, I do not accept there is any substantial, real or material prejudice here. If there is, then it is not sufficient, in all the circumstances of the case, to outweigh the other factors I have to consider that lead to an exercise of my discretion that it is just and reasonable to extend time. The defendant would have, in my view, a fair trial on all the relevant issues.
34 I dealt with the question of negligence in the circumstances of the accident, which is as relatively a straightforward fact situation as any transport accident is ever likely to be.
35 The defendant also argued prejudice in relation to quantum. The TAC has the medical assessments carried out by another statutory insurer, namely, the authorised WorkCover insurer. It is not a case where there is an absence of medical material from any source independent of the plaintiff. These medical assessments have dealt with assessment of the appropriate treatment, the nature and extent of any injuries, the effects on earning capacity, as well as prognosis.[24] There is no potential or actual prejudice on the question of assessing any damages that may flow after liability has been determined. The defendant has cross-examined the plaintiff extensively in the course of the serious injury application and had access to extensive subpoenaed medical records, both before and after the subject accident, as well as the other insurer’s medical reports already described. In addition, the defendant has had the plaintiff examined by two specialists of its own choosing.
[24]JCB 117−139
36 Dealing in order with each of the sub-paragraphs, the matters that I have to specifically have regard to commence with the length and reasons for the delay under ss(3)(a).
37 This letter from Shine Lawyers of course comes in a context of the TAC having been notified by Kenyons Lawyers (“Kenyons”), who were the plaintiff’s first solicitors, back on 27 October 2003 that a serious injury impairment request was being made under s47(7). This impairment assessment of course is the first step for a plaintiff seeking to get through the “gateway” to a common law claim.[25]
[25]JCB 31.16
38 A letter from the TAC on 22 December 2003 acknowledged receipt of a further Kenyons’ letter of 17 December 2003 seeking an impairment assessment, as well as a serious injury certificate under s93. Over the next eighteen months or so there is correspondence between the TAC and Kenyons Lawyers concerning further supporting material required by the TAC for the purposes of dealing with the serious injury request.
39 Then, in May 2005, Kenyons withdrew the serious injury request in a telephone conversation.[26] I accept this withdrawal was done on the instructions of the plaintiff as a matter of probability. However, they were instructions from a client who did not properly understand what her legal options were or what advice she had been given.[27]
[26]JCB 31.25
[27]T36-37, T70-71
40 The affidavit of the plaintiff’s former solicitor at Kenyons indicates that while the file no longer exists, the standard letter by way of that firm’s procedures would have encompassed advice about the six-year limitation period. I find that the plaintiff, as a matter of probability, received such a letter or letters indicating the relevant time limits.[28] The plaintiff, under cross-examination, did not shy away from challenging the suggestion that she received such advice. I accept that she has no recollection as such of receiving it. She was being candid in that regard and did not attempt in any way to refute or explain away the instructions she gave in any manner that would lead me to doubt her honesty or reliability.
[28]JCB 34
41 The delay in my opinion in terms of time is not inordinate in all the circumstances of this case. The reasons are readily explicable for a lay person.
42 I accept at the heart of the reason for the delay is the basic misunderstanding of the legal advice the plaintiff was given by Kenyons. The fact that a limitation period was probably pointed out to her in letters from that firm is really not to the point, in the sense that she had a clearly mistaken view that she had chosen the WorkCover compensation path and the TAC path was no longer open. She wrongly thought she only had one of two ways to go in terms of her legal rights. She had chosen to follow the WorkCover path and for good reason in terms of the medical treatment benefits that system offered compared with the time limits under the TAC scheme for payment of treatment.
43 I accept the reason for the delay is an unfortunate misunderstanding by a lay person about a legal situation that is less than straightforward at times for even lawyers in this jurisdiction to properly advise on. As counsel conceded, there are situations in relation to what used to be called a “journey” accident where an injured person has weekly payments, ‘no fault’ compensation lump sum benefits and years of medical treatment paid by one insurer and the serious injury gateway to common law damages nevertheless requires dealing with another insurer. That is what has occurred in this lady’s case. She has been covered and is still being covered for her ongoing medical treatment by WorkCover. She has received weekly benefits from WorkCover as well as lump sum compensation from WorkCover. Nevertheless, the gateway to leave to bring proceedings for damages has to be via the TAC path. Interestingly, even the Originating Motion currently before the Court initially was issued by the current solicitors, Shine Lawyers, against both the TAC and the WorkCover authorised insurer, Royal Selangor (Aust) Pty Ltd. The hearing of course has proceeded on the basis only of the TAC defendant but it points out the sometimes less than obvious path even to firms of practitioners very experienced in this jurisdiction.
44 Under sub-paragraph (b), the extent to which there is or is likely to be prejudice to the defendant has to be looked at. I have already commented generally on this. Essentially the defendant argued that there is prejudice on the question of liability, assessment of damages and generally. Dealing with the argument as to liability, I reiterate the factual circumstances of this case are such that if liability is even barely alive in this rear-end collision as described by the truck driver, then in all probability it will not loom large in terms of issues in this case. I have already discussed the clear recollection of the driver. The question of records indicating the extent of the damage to the vehicles carries, in my opinion, only minimal weight in the overall assessment of any liability issues. I find there is no significant prejudice to the defendant in terms of liability issues in view of the material it has had access to for a considerable period of time, the identification of the driver and his obvious recollection of pertinent events and the identification of his passenger. The passenger may or may not be found but the search for him is less than complete in my view.
45 The argument about medical examinations and materials not being available to the TAC at an earlier stage than would normally occur does not amount to any substantial prejudice. The TAC has the reports from extensive medical examinations conducted by the WorkCover insurer. It is worth noting also that the TAC, after obtaining the requests from Kenyons for impairment assessments and for a serious injury certificate, did not arrange any medical examinations with doctors of the TAC’s choosing over a period of something like eighteen months. Between October 2003 and May 2005, when the impairment request was at least on foot, the TAC did not arrange any medicals. The fact that the TAC was awaiting material from the plaintiff’s solicitors was no impediment to the TAC making its own assessment of medical issues from doctors it selected.
46 Nevertheless, that fact alone does not determine the question of whether there is any prejudice presently to the TAC in terms of absent medical examinations. No potential defendant is bound to arrange early medical reports but in all the circumstances of this case, with the material available to the TAC, I do not find there is any substantial prejudice in terms of understanding the nature and extent of these injuries nor in properly assessing damages.
47 Prejudice is also argued in relation to the absence of some employment records and other company records and solicitors’ files. In particular, two relatively short periods of employment with Zamels and Oxford Shop were referred to. This does not amount to any real prejudice.[29] Similarly, the other records that the defendant relies on in the affidavit from the TAC’s solicitor do not, in my opinion, amount to any actual prejudice and if there is some, it is not substantial and would not prevent a defendant having a fair trial of this matter at common law.[30]
[29]JCB 7
[30]JCB 22-31
48 The parties agreed that sub-paragraphs (c) and (d) have no application to this case. Similarly, sub-paragraph (e) was not the subject of any argument as being relevant to a clear front-end collision where the act or omission of the defendant is relatively clear.
49 Sub-paragraph (f) is also not really to the point, as the plaintiff sought medical and legal advice in very early days. Germane to this case is really her misunderstanding from a lay person’s perspective of the relatively complicated legal advice she had to cope with. On the probabilities, it included advice about two relevant insurers, two ‘no-fault’ benefit schemes, two statutory schemes for the payment of hospital, medical and like expenses and two potential “gateways” to common law damages. This case does not concern a plaintiff who was unreasonably dilatory in the steps taken to obtain legal advice.
50 It has been said that the task in a case such as this involves a synthesis of a number of competing factors.
51 The list contained in s23A(3) is not exhaustive and comment has recently been made in this Court about some other relevant factors. Courts have discussed the respective positions of insurers and injured individuals.[31] The effect of the outcome of the application on each of the parties is one of the considerations required.[32] It has been said that the TAC could fairly be described as a professional litigator, a statutory authority and that the impact of a finding against it would have no real disastrous effect on its financial health. On the other hand, an injured plaintiff such as in this case is still battling injuries that have an impact on work and require extensive treatment. This is a person suffering consequences of serious injury that will be lifelong on the probabilities and if not lifelong, then certainly long term. The impact on her of a refusal to extend the time in which she can bring a common law claim would be substantial.[33]
[31]Brisbane South Regional Health Authorityv Taylor (supra) at pages 552-553
[32]Tsiadisv Patterson (supra) at paragraph 33
[33]Richardson v Transport Accident Commission [2013] VCC 1499 (per Judge Bowman) at paragraphs 124-126
52 For the reasons mentioned, I find there is no prejudice to the defendant precluding a fair trial of all the issues notwithstanding the effluxion of time. Any delay is not unreasonable in all the circumstances of this case, as well as the realities of this type of litigation these days. The plaintiff, I have already found in the earlier application, has a serious long-term injury and consequential incapacity. The defendant insurer can properly defend her common law claim for damages.
53 The plaintiff has satisfied me that it is just and reasonable to extend the time period having regard to all the circumstances of the case. I will hear the parties as to the orders required.
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