Kelly v Transport Accident Commission (Ruling No 2)
[2020] VCC 2044
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01352
| BENJAMIN HAROLD KELLY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 October 2020 | |
DATE OF RULING: | 18 December 2020 | |
CASE MAY BE CITED AS: | Kelly v Transport Accident Commission (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2044 | |
RULING
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Subject: LIMITATION OF ACTIONS – SERIOUS INJURY APPLICATION
Catchwords: Application for extension of time during which action may be brought – whether just and reasonable – prior application discontinued
Legislation Cited: Limitation of Actions Act 1958 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College v ADC (2016) 258 CLR 134; Bell v SPC Ltd Bell v SPC Ltd [1988] VR 123; [1989] VR 170; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service & Anor [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Tsiadis v Patterson [2001] 4 VR 114; Bell v SPC Ltd [1988] VR 123; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Kelly v Transport Accident Commission (Ruling No 1) [2020] VCC 1098; Jones v Dunkel (1959) 101 CLR 298; Holcombe v Hunt [2018] VSC 55
Ruling: Application for leave to extend the time for commencement of these proceedings is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr G A Worth | Maurice Blackburn |
| For the Defendant | Ms J Frederico | Solicitor to the Transport Accident Commission |
HER HONOUR:
The application
1 The plaintiff, Mr Benjamin Harold Kelly, has brought an application for an extension of time in which to bring a common law claim for damages pursuant to s93(4)(d) of the Transport Accident Act 1986 in respect of the injuries he alleges he suffered as a result of a transport accident on 4 July 1997. The plaintiff was aged fourteen years at the time of the accident. The applicable limitation period was six years from the date of the plaintiff’s 18th birthday and expired on 3 August 2006.
2 The defendant granted the plaintiff a serious injury certificate on 16 July 2020. Accordingly, I am only required to consider the s23A application.
3 The plaintiff asserts that as a result of the transport accident, he is suffering the following injuries:[1]
[1]Plaintiff’s Court Book (“PCB”) 12-13
(a) head injury;
(b) consequential post-traumatic amnesia and concussion;
(c) consequential cognitive impairment;
(d) facial injuries and lacerations;
(e) multiple mandibular fractures necessitating surgery by way of reduction and fixation using plates and screws with chronic clicking of the mandible;
(f) injury to the right knee; and
(g) injury to the left knee.
4 The defendant submits that the plaintiff’s application should be dismissed on four grounds:
(a) the plaintiff has not provided evidence of the effect of his acquired brain injury, psychiatric condition and instability in his life, and how this impacted his ability to:
(i) provide instructions to his solicitor;
(ii) to not understand the time limitation period; and
(iii) to not understand that his solicitors had ceased acting for him;[2]
[2]Defendant’s written submissions, paragraph 3
(b) to the extent that the plaintiff has a poor memory, the Court should rely on the contemporaneous documentary evidence;
(c) the Court should not accept the plaintiff’s evidence as it is unreliable and unsatisfactory; and
(d) the defendant will suffer general and specific prejudice.
Statutory framework
5 The Court has power under s23A of the Limitations of Actions Act 1958 (“the Act”) to extend the limitation period if it decides that it is just and reasonable to do so,[3] having regard to all of the circumstances of the case, including the matters listed in s23A(3).
[3]Section 23A(2) of the Act
6 Under s23A(3) of the Act, the Court shall have regard to all the circumstances of the case, including (without derogating from the generality of the foregoing), the following:
“(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Relevant principles
7 Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[4]
[4]Per Beach JA in Marceta v Efandis [2016] VSC 265 at paragraph [11]; per Forrest J in Sparkes v Hylemit Pty Ltd [2016] VSC 453 at paragraph [33]
8 In the High Court decision in relation to an application for extension of time of Brisbane South Regional Health Authority v Taylor[5] (“Brisbane South”), the majority determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[6]
“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Even where the cause of action relates to personal injuries,23 it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[7]
[5](1996) 186 CLR 541
[6](supra) at 552
[7]Supra
9 In the most recent case of Prince Alfred College Incorporated v ADC,[8] the High Court reaffirmed the significance of the two fundamental propositions established in its decision in Brisbane South. In a passage extensively footnoted to Brisbane South, the plurality recorded:
“First an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time ….
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case.”
[8](2016) 258 CLR 134
10 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
·The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff;[9]
[9]Bell v SPC Ltd [1989] VR 170 at paragraphs [174]-[175]; Brisbane South (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]
·If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice;[10]
[10]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South (supra) at 547
·The competing considerations referred to in s23A of the Act are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period;[11]
[11]Bell v SPC Ltd (supra) at paragraph [125]; Tsiadis v Patterson [2001] 4 VR 114 at 123 and Delai v Western District Health Service & Anor (supra) at paragraphs [21]-[22]
· The question to be decided by the Court “requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them …”;[12]
[12]Per Booking J in Bell v SPC Ltd [1988] VR 123 at paragraphs [125]-[126]; cited with approval by Buchanan JA in Tsiadis v Patterson (supra) at paragraph [33]
·The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[13]
·The Court can take into account prejudice –
§ which comes about by reason of a lapse of time involved in that period of delay;[14] and
§ which can be established by the defendant;
·An inordinate delay may be taken as evidence of prejudice;[15]
·The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant;[16]
·In considering the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[17] Forrest J said:
“…In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’ ... .”
[13]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]
[14]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[15]Tsiadis (supra) at 123-124; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South (supra) at 551
[16]Brisbane South (supra) at 554-555
[17][2007] VSC 517 at paragraph [79]
Credit
11 The plaintiff was born in August 1982 and is presently aged thirty-eight years. He resides in a self-contained unit behind his parents’ property in Healesville. He said he attempts to maintain a degree of independence but does receive assistance from his parents. He said his mother assists him with the washing of his clothing, he cooks most of his own meals but from time to time has a meal with his parents at the main house.
12 The plaintiff has a thirteen-year-old daughter who resides with her mother. He sees her about once a month.
13 The evidence is that in the transport accident, the plaintiff sustained a head injury. The head injury has been investigated by neuropsychological testing on a number of occasions over the years. The defendant accepted that the plaintiff has an acquired brain injury.[18] The evidence is that the plaintiff has a psychiatric injury for which he is treated with antidepressant medication. The plaintiff has a lower than expected attention and concentration skills and slowed psychomotor processing skills. Dr Kenneth Tate, general practitioner, confirmed in a letter dated 10 March 2015[19] that due to his injury and psychological damage, the plaintiff does not function at a very high level.
[18]Transcript (“T”) 58, Lines (“L”) 10-11
[19]PCB 161
14 The plaintiff was a pleasant and co-operative witness. He was cross-examined and his poor memory was evident throughout. In answering questions, he had difficulty with recalling information and facts. I formed the view that he had some difficulty with the process.
15 The plaintiff’s credit was not attacked in cross-examination. Overall, I formed the view that he was a witness who had been through a significantly difficult time in his life. I accepted him to be a witness of truth.
The evidence
16 The plaintiff’s evidence was that on 4 July 1997, he was staying at the house of friends, the Day family, in Blackburn South. At the time of the accident, he was riding with Clinton Day and was headed east along Eley Road, away from the city. The plaintiff deposed that Clinton Day was a faster rider than him and was some distance ahead of him. Where the footpath was rough, Clinton Day moved to the other side of the road. The plaintiff also moved onto the road surface following behind Clinton Day. At approximately the point where Glenice Avenue intersects with Eley Road in Blackburn South, the plaintiff was struck by a fast-moving vehicle being driven by Maria Penzes.
17 The plaintiff said that when he saw the offending vehicle it was only a short distance from him. He attempted to brake but was struck by the front of the vehicle. He went over the handlebars and struck the windscreen of the vehicle, before rolling onto the roadway. The plaintiff’s evidence is that he does not recall the car sounding a horn or hearing the screeching of brakes.
18 The police attended the scene. The plaintiff deposed that he is aware of a diagram being prepared by the police. He said the police did not speak to him or Clinton Day.
19 The plaintiff was initially hospitalised at Box Hill Hospital and then was transferred to the Royal Children’s Hospital, where he was treated for injuries, including multiple fractures to the jaw and head and knee injuries. The plaintiff underwent surgery to reduce and internally fix his jaw. He was initially managed in the Intensive Care Unit and then in the Neurosurgery Ward. The plaintiff was discharged on 9 July 1997.
20 The plaintiff had one month off school after the accident and upon his return found it difficult to engage in studies. He completed Year 10 but did not enjoy schooling at that point and left school early.[20] He commenced an apprenticeship as a diesel mechanic but ended that after six months. He was unemployed for some time and then resumed an apprenticeship which only lasted two-and-a-half years and he did not complete the full apprenticeship. The plaintiff said that his knees had been giving him trouble since the motor vehicle accident and his right knee gave way at work and he was terminated.
[20]PCB 23
21 The plaintiff’s subsequent employment history has been chequered.
22 On 8 July 1997, a Transport Accident Commission (“TAC”) claim was lodged on the plaintiff’s behalf by his father, Mr Phillip Kelly. The claim was accepted on 28 July 1997.
23 The evidence is that the plaintiff’s parents engaged Maurice Blackburn Cashman on his behalf following the accident.
24 As a part of the present application, the defendant filed a subpoena to Maurice Blackburn Cashman (“Maurice Blackburn”) seeking the complete file of the plaintiff in relation to the accident, including but not limited to all correspondence, memoranda, telephone notations, medical reports, investigation reports and legal advices.
25 Following service of the subpoena, Maurice Blackburn wrote to the Court on 7 May 2020 advising:
“We advise that our office no longer holds any documents in relation to this matter. The file was destroyed 7 years after closure in accordance with our office policy.”
26 On 29 May 2020, Maurice Blackburn wrote again to the Court, stating their file had been destroyed, but that:
“However, by chance an assistant in a branch office with some knowledge of this matter and the subpoena was tidying up her PC’s desktop and came across some documents relative to this matter saved on her PC.”
27 The plaintiff’s solicitors, Melbourne Injury Lawyers, objected to this subpoena and the matter was heard before Judicial Registrar Gurry on 14 July 2020. Judicial Registrar Gurry ruled that the plaintiff has impliedly waved privilege in respect of communication passing between him and his solicitors on the limitation period. In his ruling, Judicial Registrar Gurry noted:
“Unfortunately, what is not evident is:
(a) What has been produced by Maurice Blackburn; is it a copy of their file or parts only? The plaintiff deposed that he understood his solicitors had a copy of his file which is inconsistent with the correspondence from Maurice Blackburn;
(b) When and by whom and on what occasions Maurice Blackburn were instructed to act is unclear.”[21]
[21]Kelly v Transport Accident Commission (Ruling No 1) [2020] VCC 1098 at paragraph [32]
28 The documents provided by Maurice Blackburn from the subpoena were enclosed in the defendant’s court book.
29 The documents before the Court included:
(a) a letter dated 11 August 1998 from Maurice Blackburn to the TAC seeking reimbursement for a report of Dr Crooke;
(b) a letter dated 5 November 1999 from Maurice Blackburn seeking the reports of Professor Davis, Mr Elsner and Mr Drury on 12 May, 1 June and 20 September 1999;
(c) a letter dated 22 September 2000 from Maurice Blackburn seeking a determination of the plaintiff’s level of impairment;
(d) a letter dated 10 June 2003 from Maurice Blackburn to the TAC requesting a serious injury certificate;
(e) a letter dated 11 June 2003 from the TAC confirming the plaintiff's permanent impairment assessed at 13 per cent and weekly annuity and the plaintiff’s rights for review;
(f) a letter dated 30 July 2003 from the TAC to Maurice Blackburn confirming that the TAC is unable to issue a serious injury certificate;
(g) a letter dated 31 July 2003 from the TAC to the plaintiff confirming that the TAC has written to the plaintiff solicitors, Maurice Blackburn, advising that the TAC is unable to grant a serious injury certificate. This letter outlined to the plaintiff that he may apply to the County Court for a judge to determine whether his injury falls within the definition of “serious injury” under the Transport Accident Act;
(h) a letter dated 15 March 2004 from Maurice Blackburn to the plaintiff confirming instructions to issue an application to the County Court for permission to proceed with a common law claim for damages on the basis that the plaintiff has suffered a serious injury. The letter asked the plaintiff to provide copies of any group certificates, taxation returns or notices of assessment made, dating back to when the plaintiff first started working through to the date of the letter;
(i) a file note dated 27 April 2004 of Maurice Blackburn recording attendance by the plaintiff's father, Mr Phillip Kelly, who confirmed the plaintiff had joined the Army in New South Wales, was currently doing boot camp for six weeks, following which they offer an apprenticeship in mechanics. The plaintiff’s father confirmed the plaintiff had been classed as medically fit. The file note recorded:
“put everything on hold re: SI app until we hear back”
The file note recorded the plaintiff's father was advised that the plaintiff had until he was twenty-four years of age to issue an originating motion. and the plaintiff’s father confirmed the plaintiff was happy to take 21 per cent if he had problems with boot camp and could not get through, he would get back to Maurice Blackburn;
(j) a file note dated 6 May 2004 of Maurice Blackburn of an attendance by the plaintiff's father, Mr Phillip Kelly. The file note recorded that the offer of compromise was explained and what that meant, and that Mr Philip Kelly would speak to the plaintiff and ring back tomorrow morning to give the plaintiff’s instructions;
(k) a file note dated 7 May 2004 of Maurice Blackburn recording attendance by the plaintiff's father, Mr Phillip Kelly, confirming he had spoken to the plaintiff and he wished to accept the offer of 21 per cent;
(l) a letter dated 13 May 2004 from Maurice Blackburn to the TAC confirming settlement of the plaintiffs VCAT application in the amount of 21 per cent;
(m) a Release signed by the plaintiff on 29 May 2004 accepting an impairment of 21 per cent;
(n) a letter dated 20 March 2006 from Maurice Blackburn confirming that the plaintiff’s file had been transferred to Mr Malcolm Cumming at the Ringwood office. The letter:
(i) confirmed previous advice provided to the plaintiff in relation to an application to the County Court seeking a decision that the plaintiff has suffered a serious injury;
(ii) referred to a letter dated 20 October 2005 asking the plaintiff to contact the office to arrange a further appointment given the plaintiff had not attended the appointment previously arranged for 18 October 2005;
(iii) confirmed that no further contact from the plaintiff had been received and asked the plaintiff to contact the office to arrange an appointment with Mr Malcolm Cumming without delay;
(iv) advised that court proceedings need to be issued by 3 August 2006, being the six-year anniversary of the plaintiff’s 18th birthday and failure to initiate court proceedings by that date would lead to the plaintiff’s potential common law entitlements being extinguished due to the lapse of time;
(v) sought further instructions as a matter of urgency and confirmed that Maurice Blackburn would not take any further action with respect to this matter without specific instructions from the plaintiff.
(o) a letter dated 10 April 2006 from Maurice Blackburn to the plaintiff confirming his recent attendance at their office and instructions to investigate the merits of initiating proceedings in the County Court for a serious injury application. The letter confirmed, in order to investigate the matter, further medical examinations had been arranged for the plaintiff and requested the plaintiff to attend these promptly. The letter confirmed appointments with Mr Jonathan Rush, Dr Nigel Strauss and Professor Jenny Ponsford;
(p) A file note of 18 May 2006 confirming a telephone call to the plaintiff in which the plaintiff was advised:
(i) he had failed to attend an appointment with Mr Jonathan Rush and enclosed the non-attendance fee of $165;
(ii) confirming appointments with Dr Strauss and Professor Ponsford;
(iii) to read the letter and costs agreement;
(iv) to make a decision about what he wants to do. If he wants an appointment, to get in touch in the next week.
(q) a letter dated 19 May 2006 from Maurice Blackburn to the plaintiff referring to a telephone conversation and enclosing a non-attendance fee from Mr Rush in relation to an appointment on 17 May 2006. The letter confirmed the office would await further instructions from the plaintiff as to whether he wished for investigations to continue into a serious injury application;
(r) A letter dated 2 June 2006 from Maurice Blackburn to the plaintiff referring to telephone conversations on 18 May and 25 May 2006. The letter confirmed:
(i) that the plaintiff had failed to attend an appointment with Dr Strauss arranged for 1 June 2006;
(ii) the next medico-legal examination with Professor Ponsford on 16 June 2006 and asked the plaintiff to confirm if he would be attending the appointment within seven days of the letter or the appointment would be cancelled to minimise the risk of further non-attendance fees;
(iii) the plaintiff failed to attend medico-legal appointments arranged and also failed to sign and return the cost agreement provided on 10 April 2006;
(iv) the plaintiff should telephone the office immediately to provide further instructions;
(v) in order to act for the plaintiff, a signed cost agreement was required and payment of the two non-attendance fees;
(vi) in the absence of any further instruction from the plaintiff within seven days of the date of the letter, Maurice Blackburn would assume the plaintiff no longer wished to proceed with the matter and will cancel any further appointments and upon receipt of the non-attendance fees will close the file;
(vii) Any application to the Court needs to be initiated by 3 August 2006, being the six-year anniversary of the plaintiff’s 18th birthday. Failing to initiate proceedings by that date would result in any common law entitlements the plaintiff may otherwise have being extinguished;
(s) A file note dated 14 June 2006 of Maurice Blackburn noting a telephone call to the plaintiff following up in relation to the letter of 2 June 2006 as no response to the letter had been received from the plaintiff. The file note recorded that the plaintiff provided instructions that he did not wish to proceed with the matter. Maurice Blackburn advised the plaintiff of the statute of limitation date and advised that future appointments would be cancelled;
(t) A letter dated 22 June 2006 from Maurice Blackburn delivered by express post to the plaintiff confirming the plaintiff’s instructions that Maurice Blackburn was not to take any further action with respect to this matter. The letter confirmed their advice that court proceedings needed to be initiated prior to 3 August 2006 in order to protect the plaintiff’s position, otherwise any potential common law damages action (seeking compensation for loss of earnings and pain and suffering and loss of enjoyment of life) would be extinguished due to the lapse of the six years from the date of the plaintiff's 18th birthday. The letter confirmed the plaintiff’s instructions to not initiate any court proceedings to protect the plaintiff’s position;
(u) a letter dated 28 February 2018 delivered by email from Melbourne Injury Lawyers to the TAC confirming they acted for the plaintiff and seeking a copy of all correspondence, claim forms, medical reports, documents and printouts held by the TAC in relation to the plaintiff’s claim/claims;
(v) A letter dated 28 May 2018 from Melbourne Injury Lawyers to the TAC seeking a copy of the plaintiff’s serious injury application submitted by Maurice Blackburn and rejected by way of letter dated 31 July 2003 and copies of any associated letters or documents relevant to the serious injury application;
(w) A letter dated 10 February 2020 from Melbourne Injury Lawyers to the TAC serving a copy of the Originating Motion in this application.
30 Counsel for the plaintiff outlined that the plaintiff is now represented by Maurice Blackburn again, as his file was transferred to them by Melbourne Injury Lawyers.[22]
[22]T8, L16-23
31 The plaintiff’s evidence is that he now understands that there is a limitation period within which to bring proceedings for common law which expired on 3 August 2006. The plaintiff says that he retained Maurice Blackburn to represent him and they did so by submitting an impairment benefit claim which was finalised in about June 2004. The plaintiff said that Maurice Blackburn also submitted a serious injury application on his behalf, but he understands this was rejected by letter dated 31 July 2003. He says he has no recollection of this application being submitted and believes this is due to his acquired brain injury and consequent psychiatric injury.
32 The plaintiff’s evidence is that he consulted Melbourne Injury Lawyers in February 2018 because he thought that Maurice Blackburn were not adequately representing his interests.
33 The plaintiff’s evidence is that he has no recollection of receiving the letter dated 22 June 2006 or of giving any instructions not to proceed with further medical examinations in support of a serious injury application. The plaintiff said he was of the belief that Maurice Blackburn had continued to act on his behalf but had done nothing to assist him in prosecuting a claim.
34 The plaintiff deposed that he did not understand the concept of the time limitation because of his injuries. He said his lifestyle at various points has been unstable and at various times, his relationship with his parents deteriorated to the point that he lived in a car or house surfed. He said he has been non-compliant with prescribed medications and would only take the medication again when suffering side effects such as debilitating headaches. The plaintiff said that his state of mind was such that he did not understand that Maurice Blackburn had ceased to act for him
35 In cross-examination, the plaintiff was taken to the majority of the documents outlined in paragraph 28 of this judgment. The plaintiff was unable to recall these documents and also could not recall receiving them.
36 In cross-examination, the plaintiff said that at the time he was represented by Maurice Blackburn, he did not know what a common law claim for damages was.[23]
[23]T24, L19-22
37 The plaintiff’s evidence was that he cannot recall if he was living in Healesville in 2006. He deposes that he has had times when he lived in a car or house surfed. The plaintiff was not asked in cross-examination if he can recall approximately what periods he may have not been residing in Healesville.
38 In cross-examination, the plaintiff said that between 2006 and 2018, he attempted to contact Maurice Blackburn on several occasions with no reply.[24] He said he contacted Melbourne Injury Lawyers after speaking to a friend.
[24]T34, L27-30
Analysis
39 Counsel for the plaintiff submitted that it would be just and reasonable to extend the limitation period in all of the circumstances.
40 The defendant relied upon s23A(3)(a), (b), (e) and (f). I shall consider each of these subsections in turn:
(a) The length of and reason for the delay on the part of the Plaintiff
(i) The length of the delay
41 The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time. Given the plaintiff’s cause of action arose on 4 July 1997 and his Originating Motion was filed on 19 March 2019, the delay is twenty-two years.
(ii) The reason for the delay
42 The evidence is that the plaintiff, through his father, instructed Maurice Blackburn some time in 1998. At the time, the plaintiff was being advised on an impairment benefit claim and was advised of the six-year time limitation in relation to a common law claim.
43 On 22 September 2000, Maurice Blackburn sought a determination of the plaintiff’s level of impairment. On 10 June 2003, Maurice Blackburn sought a serious injury certificate from the TAC. An impairment assessment was made by the TAC on 11 June 2003, following which Maurice Blackburn lodged a VCAT application on 13 May 2003. On 30 July 2003, the TAC confirmed that they were unable to issue a serious injury certificate. This was confirmed by letter dated 21 July 2003 from TAC to the plaintiff.
44 The letter dated 15 March 2004 from Maurice Blackburn to the plaintiff confirms the plaintiff’s instructions to issue an application in the County Court seeking a serious injury certificate. A file note of Maurice Blackburn dated 27 April 2004 confirms a conversation with the plaintiff’s father, Mr Phillip Kelly, where instructions are provided to “put everything on hold; re: SI app until we hear back”. The file note records advice about the six-year time limitation to commence a common law claim being provided to Mr P Kelly and confirms instructions from Mr P Kelly that the plaintiff is happy to accept the impairment assessment at 21 per cent.
45 A further file note of Maurice Blackburn dated 7 May 2004 confirms an attendance by the plaintiff’s father, Mr P Kelly, confirming he has spoken to the plaintiff, who wishes to accept the impairment benefit at 21 per cent. A letter of 13 May 2004 confirms the settlement of the impairment benefit claim in the amount of 21 per cent. A Release was signed in relation to the settlement of the impairment benefit by the plaintiff on 29 April 2004.
46 I accept that the complete file of Maurice Blackburn from when the plaintiff first engaged Maurice Blackburn was destroyed and only some documents have been retrieved. I accept the documents provided through the subpoena is not a complete file.
47 I accept that between September 2000 and April 2004, the plaintiff was being advised in relation to both an impairment benefit claim and a serious injury certificate to commence a common law claim for damages.
48 The records before the Court indicate that between 20 March 2006 and 22 June 2006, Maurice Blackburn:
· sought instructions as a matter of urgency to take action in relation to investigating the merits of a common law claim;
· confirmed the instructions of the plaintiff following an attendance at their office by letter dated 10 April 2006 to investigate the merits of initiating proceedings in the County Court for a serious injury application. The plaintiff was informed by this letter of medical examinations booked for him with Mr Jonathan Rush, Dr Nigel Strauss and Professor Jenny Ponsford;
· confirmed by letter dated 19 May 2006 and referred to a telephone conversation to the plaintiff and enclosed a non-attendance fee for Mr Rush. Maurice Blackburn sought instructions from the plaintiff as to whether he wished for investigations to continue into a serious injury application;
· recorded a file note of a telephone conversation with the plaintiff where the non-attendance on an appointment with Mr Rush and the associated fee was confirmed; confirmed the appointments with Dr Strauss and Professor Ponsford; asked the plaintiff to read the letter dated 19 May 2006 and costs agreement and make a decision about whether he wished to proceed;
· confirmed by letter dated 2 June 2006 that the plaintiff had failed to attend an appointment with Dr Strauss and had an appointment with Professor Ponsford. Maurice Blackburn confirmed that the plaintiff had not returned a signed costs agreement, had incurred two non-attendance fees and in the absence of further instructions within seven days, the appointment with Professor Ponsford would be cancelled. Maurice Blackburn confirmed the time limitation of expiration on 3 August 2006 being the six-year anniversary of the plaintiff’s 18th birthday.
· recorded a file note of a telephone conversation with the plaintiff in relation to the letter dated 2 June 2006 and confirmed the plaintiff’s instructions that he does not wish to proceed with the matter. The file note recorded that the plaintiff was advised of the relevant time limitation.
· sent a letter dated 22 June 2006 via express post to the plaintiff confirming his instructions for Maurice Blackburn to not take any further action and confirmed the advice of the time limitation requiring proceedings to be initiated by 3 August 2006.
49 In cross-examination, the plaintiff was taken to the various letters and file notes of Maurice Blackburn. The plaintiff’s evidence was that he could not recall these letters or attendances. The plaintiff said that at the time, he did not understand what a common law claim was or what a time limitation was.
50 In cross-examination, the plaintiff said he could not recall the solicitors of Maurice Blackburn, namely Mr Malcolm Cumming and Mr Don O’Halloran, nor could he recall ever attending the offices of Maurice Blackburn. He said he recalled the Maurice Blackburn Ringwood office, but he did not remember anything but where the office is.
51 The plaintiff said that he did not recall giving instructions to Maurice Blackburn to investigate the merits of a serious injury application nor did he recall the telephone conversation of 14 June 2006 where it was recorded he provided instructions he did not wish to proceed with the matter.
52 The plaintiff accepted that if the letter of 22 June 2006 was sent via express post, he must have picked it up, but he could not recall it.[25]
[25]T33, L4-6
53 The plaintiff’s evidence is that by reason of his acquired brain injury and psychiatric condition, he was not in a frame of mind which enabled him to understand the concept of a time limitation because of those injuries. Further, due to his lifestyle being unstable, such was his state of mind that he did not understand that Maurice Blackburn had ceased to act for him. The plaintiff’s evidence is that he contacted Maurice Blackburn several times between 2006 and 2018 without reply and it was his understanding that Maurice Blackburn continue to act for him.
54 Counsel for the defendant submitted that the plaintiff has not provided evidence of the effect of his acquired brain injury, psychiatric condition and instability in his life, and how this impacted his understanding of the time limitation period, his ability to provide instructions and to understand that Maurice Blackburn had ceased acting for him.
55 Counsel for the defendants submitted that to the extent that the plaintiff has a poor memory, the Court should rely on the contemporaneous documentary evidence and the Court should not accept the plaintiff’s evidence as it is unreliable, unsatisfactory and inconsistent.
56 Counsel for the defendant submitted that there is an absence of evidence as to:
(a) medical evidence that the nature of the plaintiff’s acquired brain injury would mean that he would not be able to understand a six-year time limitation period and its consequences;
(b) medical evidence that the nature of the plaintiff’s psychiatric condition would mean that he would not be able to understand a six-year time limitation period and its consequences;
(c) lay evidence that the nature of his life as at the time he was instructing Maurice Blackburn would mean he would not be able to understand a six-year time limitation period and its consequences.
Credit and reliability of the Plaintiff’s evidence
57 Counsel for the plaintiff submitted that:
(a) the plaintiff did not have an opportunity to respond to the proposition in cross-examination that the work history he provided to Professor Ponsford was inconsistent;
(b) it was not put to the plaintiff that him being in receipt of a disability pension whilst working was crossing the line; and[26]
(c) the plaintiff’s evidence that he did not understand the six-year time limitation period due to the nature of his psychiatric condition was not challenged on a matter of credit.
[26]T70, L10-16
58 I take the view that in cross-examination, it was not suggested at any point that the plaintiff’s inability to recall matters or his poor memory was feigned or anything but related to his neuro-psychological condition. I have accepted that the plaintiff's credit was not challenged and is not in issue.
59 Accordingly, I do not accept counsel for the defendant’s submission that the plaintiff’s evidence is unreliable, unsatisfactory and inconsistent.
Medical evidence as to acquired brain injury and psychiatric condition
60 Counsel for the defendant submitted that:
(a) there is no medical evidence during the relevant period of 2005-2006;
(b) there is no evidence from the plaintiff’s general practitioner, a neuropsychologist or other medical practitioner, that the plaintiff would not have had the capacity to understand a six-year time limitation;
(c) there is no evidence from Dr Tate, the plaintiff's general treating practitioner for fifteen years, regarding the plaintiff’s cognition or mental state in 2005 and 2006. His report of 10 March 2015 says:
“As a result of his injury and psychological damage Ben does not function at a very high level sometimes.”[27]
[27]PCB 161
(d) the evidence of the neuropsychologists, Professor Ponsford and Mr Hayler, do not address whether the plaintiff’s capacity to provide instructions were affected by his acquired brain injury. Relevantly, at around this time, the plaintiff had passed aptitude and other tests to join the Army. Professor Ponsford assessed the plaintiff as having a 5 per cent impairment. Mr Hayler said the plaintiff’s general intellectual functioning fell within the expected range;
(e) the psychiatrists, Dr Piperoglou and Dr Kaplan, do not address whether the plaintiff’s capacity to provide instructions were affected by his psychiatric condition;
(f) the solicitors responsible for the plaintiff’s case are experienced personal injury practitioners. There is no evidence that they had concerns with the plaintiff’s capacity to provide instructions.
61 The plaintiff has been tested over an extended period by neuropsychologists. Mr Drury’s report of 30 September 1999 outlined that the plaintiff demonstrated fluctuating attention and concentration and slow psychomotor speed of processing, but his new memory and new learning ability were generally competent, as well, most measures of general intellectual functioning. The plaintiff reported to Mr Drury moderate difficulty with memory, describing instances where he had forgotten where he had been going in the workshop or forgotten part numbers, bolt sizes or instructions given to him by his employer.[28]
[28]PCB 74
62 On 7 October 2003, Professor Ponsford provided a report in which she described the plaintiff as a young man of average intelligence with higher than average visual perceptual skills. She said the plaintiff appears to have sustained a moderately severe head injury in the motor vehicle accident where he lost consciousness, and had a Glasgow coma score of 9 on 15 on arrival at the hospital. Professor Ponsford said the plaintiff exhibited significantly reduced speed of information processing and a moderate level of anxiety and mild depression. She was of the view that the plaintiff’s reduced information processing could be attributable to the head injury he sustained to some degree. Professor Ponsford said she believed it is exacerbated by his presence of psychological distress caused by a number of factors, most notably his inability to hold down a job, consequential financial stress and the death of a close friend by suicide.
63 The plaintiff’s evidence in court was that he has grieved the death of his friend and has moved on.
64 Dr Piperoglou prepared report dated 26 November 2003 in which he opined that from a psychiatric point of view, the plaintiff presents with moderately severe mixed anxiety and depression complicated by a head injury sustained when he was knocked off his pushbike. He said he was surprised that the plaintiff had never been referred for psychiatric assessment and a trial of antidepressant medication. Dr Piperoglou said that the plaintiff’s condition is directly related to his injuries, his chronic pain and the impact his pain has had upon his ability to work and upon the other limitations imposed upon him by his injuries. He said the plaintiff is likely to remain prone to depression and anxiety as long as his pain persists, as long as he remains disabled by his pain and as long as his injuries interfere with his ability to work. He said the plaintiff experiences some traumatisation features in relation to the motor vehicle accident.
65 In 2012, Mr Hayler, psychologist, provided a report in which he outlined that the plaintiff is a single unemployed homeless man who has reported experiencing cognitive difficulty since the motor vehicle accident. He said the plaintiff reported that his brain injury has resulted in him experiencing significant cognitive difficulties which are characterised by poor attention ability and memory function. The plaintiff also reported a severe level of depression since the motor vehicle accident. Mr Hayler said that from a neuropsychological perspective, his general intellectual functioning fell within the expected average range. He said there appeared to be some attenuation in the plaintiff’s performance on tasks that measured basic working memory function and processing speed. Mr Hayler said that the difficulties were most noteworthy during tasks which required the plaintiff to hold basic verbal and nonverbal pieces of information within his mind and manipulate this material. He said the underlying nature of the plaintiff’s cognitive difficulties appeared to be related to the motor vehicle accident. He said the precise reason for the compromised memory function remains unclear due to the influence of both the brain injury and the depressed mood.
66 Professor Ponsford provided a second report dated 1 October 2020 where she reported that the plaintiff performed at a level similar to that shown in his previous assessment in 2003. She said he displayed moderate slowing of information processing speed and some attentional fluctuations. Professor Ponsford said the plaintiff displayed high levels of depression and anxiety at the assessment which was the most prominent aspect of his presentation. She said the plaintiff’s reduced information processing speed has been consistently evident and is likely to be largely attributable to the head injury he sustained. She believed it was currently exacerbated by the presence of depression and anxiety. She noted his mood problems have been present over many years since the motor vehicle accident and there is no evidence they predate the accident. Professor Ponsford said the plaintiff’s stress levels may be exacerbated by frustrations in finding and holding a suitable job due to his physical limitations and other stressors.
67 Dr Freilich prepared a report dated 28 May 2020 in which he reported the plaintiff has a head injury due to which he has constant headaches, intermittent migraines and problems with memory and concentration. He said neuropsychological testing revealed some cognitive impairment which was thought to relate to the brain injury but also contributed to by chronic anxiety and depression for which the plaintiff is receiving treatment. He said considering the length of time that has elapsed since the plaintiff’s injury, the neuropsychological sequelae of the injury are permanent, and no improvement can be expected.
68 There is no medical evidence to support the proposition that the plaintiff would have understood the six-year time limitation between 2004 to 2006. The defendant has not sought the plaintiff to undergo any neuropsychological or psychiatric assessment. I accept that the majority of the medical evidence supports the view that the plaintiff has an acquired brain injury which has resulted in cognitive difficulties, including difficulties with memory, which is exacerbated by the plaintiff’s psychiatric condition, namely depression and anxiety. I accept counsel for the plaintiff’s submission that there was no cross-examination of the plaintiff relating to the plaintiff’s inability to continue to serve in the Army.
69 Having regard to the majority of the medical evidence and the plaintiff’s presentation in Court, I accept the plaintiff’s evidence that due to his neuropsychological and psychiatric condition, that he did not understand the six-year time limitation.
70 I do not accept counsel for the defendant’s submission that there is no evidence that the solicitors responsible for the plaintiff's case had concerns with the plaintiff’s capacity to provide instructions. The solicitors are not medically trained professionals and cannot assess the plaintiff’s capacities with respect to his medical condition.
Lay evidence
71 Counsel for the defendant submitted that in circumstances where the plaintiff has a poor memory and is unable to give evidence of his situation at the time, his parents’ evidence is silent as to:
(a) whether or not the plaintiff was living at home or had been kicked out of the home at any time during these periods;
(b) whether the plaintiff was working;
(c) the cognitive difficulties the plaintiff was experiencing;
(d) any relationship difficulties the plaintiff was having which might have affected his wellbeing;
(e) specific details as to the plaintiff’s life drifting out of control;
(f) any concerns they had about the plaintiff being able to give instructions to his solicitors;
(g) their involvement with the solicitors [it is reasonable to assume they provided initial instructions to Maurice Blackburn, and Mr Kelly had an ongoing involvement for some time];
(h) any conversations with the plaintiff that he was not able to contact his solicitors.
72 The plaintiff’s father, Mr Phillip Kelly, and his mother, Mrs Maureen Kelly, swore an affidavit each in this proceeding. In these affidavits they both depose generally to the matters outlined by counsel for the defendant. I accept that both affidavits are silent as to whether they had any concerns about the plaintiff’s ability to provide instructions.
73 The plaintiff’s parents were requested to be available for cross-examination and were available for cross-examination purposes. At the conclusion of the plaintiff’s evidence, counsel for the defendant elected to not cross-examine them.
74 Counsel for the plaintiff submitted that in accordance with Jones v Dunkel,[29] the unexplained failure by a party to call a witness, may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted the party’s case. Counsel for the plaintiff submitted that no challenge of the plaintiff’s parents’ evidence was forthcoming when they were both made available for cross-examination.
[29](1959) 101 CLR 298
75 I accept counsel for the plaintiff’s submission that where there is no explanation provided as to why the plaintiff’s parents were not called and the evidence of the parents is not challenged, an inference may be drawn that the uncalled evidence would not have assisted the defendant’s case. I do not accept that it is reasonable for the Court to draw inferences such as the level of involvement of the plaintiff’s parents with his solicitors, Maurice Blackburn Cashman, particularly in circumstances where the complete Maurice Blackburn Cashman file has been destroyed.
(b) The extent to which, having regard to the delay, there is, or is likely to be prejudice to the Defendant
76 Counsel for the defendant submitted that in relation to liability evidence, there are witnesses which can be called. Counsel submitted that the defendant is prejudiced in assessing the plaintiff’s claim due to the effluxion of time.
77 Counsel for the defendant submitted that if an extension of time was granted, the defendant will be prejudiced:
(i) in its ability to challenge the plaintiff’s evidence as to when his symptoms started in respect of his back and neck complaints, his hip complaints, his left knee complaint and his ankle complaint. As the doctors will not have any independent memory of what the plaintiff reported and the fact that the notes do not record a complaint, may not be a sufficient answer;
(ii) as the plaintiff has said, he had seen many medical practitioners over twenty-three years and he is unable to remember who he has seen. The defendant will be prejudiced in a fair trial as all these doctors may not be able to be identified;
(iii) in respect of damages, the case will involve consideration of the extent to which the plaintiff’s myriad of conditions affected him after the accident;
(iv) as the defendant has lost the opportunity to have the plaintiff examined by medico-legal practitioners between 2004 and 2020;
(v) as the plaintiff will present a case which blames everything on his accident;
(vi) as there is not a full body of medical evidence from the date of the accident to the present time. There is a significant gap from 2004 to 2020 save for a neuropsychological report of Mr Hayler in 2012 and a short note from Dr Tate in 2015;
(vii) the plaintiff has been in and out of employment and has said he cannot remember all his jobs or employers or how much he earned. This will be prejudicial to provide a fair trial for the defendant.
78 I shall consider each of the defendant’s submissions in turn.
(i) The Defendant’s ability to challenge the Plaintiff’s evidence as to when his symptoms started in respect of his back and neck complaints, his hip complaints, his left knee complaint and his ankle complaint
79 The report of Mr Keith Elsner, orthopaedic surgeon, dated 4 June 1999 recorded that the plaintiff reported wearing a neck collar for three days after the motor vehicle accident; however, x-rays of the cervical spine were ultimately shown to be normal. Mr Elsner recorded that there was some concern about the plaintiff’s neck, but the plaintiff reported he has not had any problems with his neck since he left the hospital and has not required treatment. Mr Elsner opined that the plaintiff has not been left with an impairment to the neck.
80 Mr Michael Shannon, orthopaedic surgeon, provided a report dated 23 May 2003 for the purposes of an impairment assessment, where he recorded that the plaintiff has no significant neck symptoms.
81 In a report dated 7 October 2003, Professor Ponsford recorded that the plaintiff reported having a neck brace on when he was in the Royal Children’s Hospital.[30]
[30]PCB 194
82 The report of Dr Piperoglou dated 26 November 2003 recorded that the plaintiff reported clicking in both his hips.[31] The plaintiff’s father also confirmed that the plaintiff has clicking in both his hips.[32]
[31]PCB 211
[32]PCB 126
83 Dr David Brownbill, neurosurgeon, provided a report dated 23 January 2004 where he recorded that there has not been any neck or back pain.[33]
[33]PCB 120
84 In a report dated 4 May 2012, Mr Hayler, psychologist, reported that the plaintiff advised he had pain within his hips and ankles.
85 In a report dated 28 May 2020, Dr David Freilich, neurologist, recorded the plaintiff’s current condition as having shooting pain from the left side of the neck to the left side of the head and eye. The plaintiff reported it hurts to move his neck, which is tight, and he consults a chiropractor when he can afford it.[34] Dr Freilich recorded the plaintiff reporting pain in his lumbar back, both knees, hips and ankles.[35]
[34]PCB 238
[35]PCB 238
86 In a report dated 29 May 2020, Dr Albert Kaplan, psychiatrist, recorded that the plaintiff reported having neck and lower back pain since the accident.[36] The plaintiff reported experiencing pain in his neck which is present most of the time and is associated with headaches above the right eye. The plaintiff reported having pain in his left knee, his hips and ankles which he attributes to his altered gait when recovering from arthroscopies. The plaintiff reported that his hip pain is aggravated when he sits or stands for prolonged periods.
[36]PCB 253
87 In a report dated 21 June 2020, Associate Professor Michael Stubbs, oral medicine specialist, reported the plaintiff as sustaining a right knee injury requiring operative treatment, consequential left knee injury and bilateral hip and ankle injuries due to an altered gait.
88 In a report dated 24 June 2020, Mr Thomas Kossmann, orthopaedic surgeon, recorded the plaintiff complaining of neck pain and pain in his lower back radiating into his left leg. He also reported clicking noises in both hips and knees. Mr Kossmann was of the opinion that the plaintiff requires further investigations of his cervical and lumbar spine. In relation to the plaintiff’s hips, Mr Kossmann was of the opinion that the plaintiff’s hip issues are related to an altered gait caused by the transport accident on 4 July 1997.
89 In a more recent report dated 1 October 2020, Professor Ponsford recorded that the plaintiff reported his neck getting sore and causing headaches.
90 I do not accept the submission that the defendant will be prejudiced due to medical practitioners not having an independent memory of what the plaintiff reported. In the majority of such cases, medical practitioners are reliant on notes when giving their evidence as it is unlikely they can have independent memories of what each of their patients report. Further, I take the view that the medical records before the Court in this application are considerable.
91 I accept that the plaintiff was making reports of his injuries as early as 2003. It is for the plaintiff to establish his claim and link his injuries to the subject transport accident. I take the view this is a matter for a common law trial.
(ii) The Defendant will be prejudiced in a fair trial as all of the doctors the Plaintiff has consulted may not be able to be identified
92 The plaintiff’s evidence was that he did not pay for any of his medical treatment. I accept counsel for the plaintiff’s submission that either the TAC or Medicare records would outline the particulars of all medical treatment sought by the plaintiff.
93 There is no evidence to suggest that the defendant could not access the TAC and Medicare records to determine which doctors the plaintiff has consulted and when. Accordingly, I do not accept the submission that the defendant would be prejudiced due to lack of knowledge of the medical practitioners the plaintiff has consulted.
(iii) The Defendant will be prejudiced in respect of damages, as the case will involve consideration of the extent to which the Plaintiff’s myriad of conditions affected him after the accident
94 In respect of an assessment of damages, I take the view that it is for the plaintiff to establish and link his injuries to the transport accident. The plaintiff must prove his case in order to seek damages.
(iv) The Defendant is prejudiced as it has lost the opportunity to have the Plaintiff examined by medico-legal practitioners between 2004 and 2020
95 The defendant has not sought to have the plaintiff medically examined between 2018 and for the purposes of the application. The defendant can rely on and provide any medical records for the period of 2004-2020 when having the plaintiff medically examined for the purposes of a common law trial.
(v) The Defendant is prejudiced the plaintiff will present a case which blames everything on his accident
96 I do not accept the submission that the defendant would be prejudiced as the plaintiff would blame everything on the transport accident. The plaintiff must prove his case and link his injuries to the transport accident. I take the view this is a matter for the common law trial.
(vi)The Defendant is prejudiced as there is not a full body of medical evidence from the date of the accident to the present time with a significant gap from 2004 to 2020 save for a neuropsychological report of Mr Hayler in 2012 and a short note from Dr Tate in 2015
97 As outlined above, there is no evidence to suggest that the defendant could not access the TAC and Medicare records to determine which doctors the plaintiff has consulted and when.
98 There is no evidence to suggest that medical records between 2004 to 2020 cannot be obtained.
(vii) The Defendant is prejudiced as the Plaintiff has been in and out of employment and has said he cannot remember all his jobs or employers or how much he earned
99 Counsel for the plaintiff submitted that the plaintiff’s taxation returns would be obtained to show what his loss of earnings are. Counsel for the plaintiff submitted that to show what the loss of earnings for the plaintiff are, the plaintiff would show the actual loss by proving what might have happened had the plaintiff been able to pursue a steady career which he has been deprived of.
100 Counsel for the plaintiff submitted that if there is an inability to prove the plaintiff’s case, that is an issue prejudicial to the plaintiff, as he would not get the damages he deserves, but is not prejudicial to the defendant.
101 I accept the submissions of counsel for the plaintiff and take the view that this is a matter for the common law trial.
(e) the extent, if any, 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; and
(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
102 Counsel for the defendant relied on these subsections but no substantial submissions were made on this sub-section.
103 I have accepted the plaintiff’s evidence that when he attended Melbourne Injury Lawyers in 2018, he did so on his understanding that Maurice Blackburn were still acting for him and not taking any action. I take into account the impact of the plaintiff’s injuries on his life since the transport accident.
Conclusion
104 I accept that Maurice Blackburn advised the plaintiff by letter and telephone of the six-year time limitation between 1998-2006. I accept that the records indicate the plaintiff failed to attend medical appointments arranged for him and gave instructions that he did not wish to proceed with the matter. I accept the plaintiff’s evidence that he does not have any recollection of giving these instructions or receiving the letters before the Court.
105 I accept that the plaintiff was not always living at his address in Healesville and has at times been homeless, living in vehicles or house surfing. I accept that there are no specific details of when the plaintiff was not residing at his address in Healesville.
106 I accept that these matters are what ultimately caused a delay in the serious injury proceedings.
107 I accept that the plaintiff did not understand the statutory time limitation in relation to a common law claim for damages until consulting Melbourne Injury Lawyers in 2018.
108 I accept the plaintiff’s evidence that he thought Maurice Blackburn were acting for him between 2006 to 2018. I accept the plaintiff’s evidence that he contacted Maurice Blackburn in this period, however, there are no records available. I accept that the Maurice Blackburn file is not available as it was destroyed seven years after being closed. The documents provided by Maurice Blackburn in response to a subpoena are very select documents saved on a legal assistant’s computer and do not constitute the whole file. Without a complete record, it cannot be said the plaintiff did not contact Maurice Blackburn between 2006 and 2018.
109 I accept counsel for the plaintiff’s submission, that the plaintiff’s injuries prevented him from properly managing his affairs. I accept that due to the plaintiff's acquired brain injury and psychiatric condition, he was not in a frame of mind which enabled him to understand what was being suggested or to make decisions in relation to his claim. I accept that for periods, the plaintiff was homeless, living in a car or house surfed. I accept the plaintiff’s evidence that he was frequently non-compliant with prescribed medications and would only begin taking the medication when he would suffer side effects.
110 In considering all of these matters, I accept that the plaintiff’s state of mind due to his acquired brain injury and psychiatric condition was such that he did not understand the six-year time limitation or that Maurice Blackburn had ceased acting for him.
111 Counsel for the plaintiff submitted that there is no evidence to suggest that there is any difficulty locating the driver of the offending vehicle. Counsel for the defendant accepted that in respect to liability there are witnesses available.
112 What is in issue is whether there is significant prejudice to the defendant, and whether an acceptably fair trial can be had if the plaintiff is granted leave to bring his claim for common law damages out of time.[37] However, as Dixon J said in Holcombe v Hunt,[38] the Court is required to synthesise the material considerations when determining whether it is reasonable to extend the period of time.
[37]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra) at paragraph [79]
[38][2018] VSC 55 at paragraph [42]
113 The plaintiff did not commence this application until 26 March 2019. I accept that this is a considerable delay. However, I take into account the following matters:
(a) There is no issue in relation to liability evidence;
(b) There is considerable medical material before the Court in this application;
(c) There is no evidence to suggest that further medical material cannot be obtained;
114 Taking into account all of this material, I am satisfied that if the limitation period is extended, the defendant will receive a fair trial.
115 Synthesising all of the materials required to be taken into account by s23A of the Act, I formed the view that it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relies for bringing a claim against the defendant.
116 I will hear the parties on costs.
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