Koman v TAC
[2012] VCC 1391
•27 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-11-04643
| Mark Koman | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2012 | |
DATE OF JUDGMENT: | 27 September 2012 | |
CASE MAY BE CITED AS: | Koman v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1391 | |
REASONS FOR JUDGMENT
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Catchwords: Limitation of actions – Extension of time within which the action may be brought – Ignorance of legal rights – Prejudice to defendant – Circumstances of accident - Limitations of Actions Act 1958 (Vic) - s 23A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Brett | Arnold Thomas & Becker Solicitors |
| For the Defendant | Mr D. Masel S.C. Ms M. Britbart | Transport Accident Commission |
HER HONOUR:
Application
1 The plaintiff, Mr Mark Koman, applies under s 23A of the Limitations of Actions Act 1958 (Vic) (the Act) for an extension of the limitation period until 28 September 2011, when a writ was issued in the proceeding. The common law claim is for damages in respect of injuries sustained on 30 April 2002 in what has been treated as a transport accident. However the circumstances in which the injuries occurred are shrouded in mystery because other than recalling that he got into a car as a passenger on the night he was injured, the plaintiff has little memory of the events which led to his being brought by car to the Northern Hospital by an unknown person.
Defendant’s position
2 The defendant resists the application on the basis of the likely prejudice to the defendant flowing from the delay between the date of the transport accident (30 April 2002) and the bringing of the application to extend time (10 December 2011). The defendant says that prejudice to it looms large in this case because of the mystery surrounding the circumstances of the accident, and because the delay has resulted in the loss of possible leads. The defendant noted that the plaintiff’s medical treatment expenses were paid for in the months after the accident but that no further treatment was sought in the five years after late 2002. On this basis, it was reasonable for TAC to infer that his injuries had resolved. The absence of a well documented course of treatment in the intervening years compounded the prejudice to the defendant from the grant of the application.
Chronology
3 There was no issue between the parties concerning the chronology of events in this case. It is convenient to summarise these events.
4 The Northern Hospital Emergency Department Record notes[1] dated 30 April 2002 state:
MVA- front seat passenger
?Not wearing seat belt
Brought in by passerby
Roll-over 8-10x; was? thrown out of car
[1]Defendant’s Court Book (DCB) 83.
5 The plaintiff sustained injuries including small left pneumothorax, bilateral basal lung collapse (the left more affected than the right), fractured ribs, fractures of the base of skull and facial fractures. He was transferred to the Royal Melbourne Hospital where he spent two and half weeks. He had two operations to repair damage to his ribs and to prevent bleeding. He then underwent in-patient rehabilitation for a further period of some weeks.
6 A TAC officer visited the plaintiff at the Royal Melbourne Hospital on 16 May 2002 and filled in a Claim for Compensation Form[2] (the Form) which the plaintiff signed. The Form indicates that the accident occurred in Sydney Road Campbellfield. The plaintiff said at the hearing that he did not know where the accident occurred, and did not know where that information was obtained from. The Form indicates that police attended the scene of the accident, and that his name was “?Jonas”, stationed at Campbellfield. It was common ground that subsequent inquiries revealed that there has never been a police officer by that name stationed in Campbellfield, nor that a police station was operating in that suburb on 30 April 2002. The registration details of the vehicle in which the plaintiff was travelling at the time of the accident was listed on the form as “?OTC 499”. Subsequent inquiries have revealed that this registration number could be traced to a Ms Lila Clevas, but the registration expired in 1999 and efforts to trace her have failed. The plaintiff said at the hearing that he did not know a Lila Clevas. He did not recall the make or model of the vehicle he was travelling in, although the Form indicates that it was a “Ford”. While the Form states that he was a “labourer/unemployed” at the time of the accident, the plaintiff said that he was working loading trucks at that time, and was being paid in cash, but could not recall who for, nor for how long he had been doing so.
[2]Plaintiff’s Court Book (PCB) 153.
7 The plaintiff said that he did not recall anything about the night of the accident apart from getting into a car as a passenger and then waking up in hospital. He said that to his knowledge there was no second car involved in the accident in which he was injured, and that he had not instructed his solicitor in relation to the existence of a second car.
8 The plaintiff’s claim for benefits was accepted on 16 May 2002[3] and TAC paid for treatment in the sum of approximately $60,000 up until October 2002. A “9 Month Impairment File Summary” [4] prepared by the TAC dated 3 February 2003 included the following conclusion:
Initial 9 month decision:
“D” decision. The client is unlikely to rate over the 10% threshold for impairment.
[3]DCB 43.
[4]PCB 19.
9 In the light of that decision, no whole person impairment assessment was conducted of the plaintiff’s transport accident related injuries.
10 There were no payments by TAC for any medical treatment, rehabilitation, medication or other expenses associated with the plaintiff’s injuries between October 2002 and 2007.
11 In his affidavit sworn in support of this application[5], the plaintiff stated, at paragraph 4:
I understood that I received benefits from the Transport Accident Commission. I was not aware that there were any benefits that I could obtain which were not automatically given out by the Transport Accident Commission. It was only years later that I saw an advertisement for Arnold Thomas & Becker, Solicitors, and attended for advice. Since that time, I have left the case entirely in the hands of Allanah Goodwin of that firm.
[5]PCB 173.
12 The plaintiff first attended his solicitors, Arnold Thomas & Becker (ATB), on 27 July 2007. On 31 August 2007, ATB requested documents from the TAC, and those documents, including the “9 Month Impairment File Summary” referred to in paragraph 10 above, were supplied on 4 December 2007.
13 On 4 December 2007, ATB wrote to the TAC requesting an impairment assessment. Between February and June 2008, there were requests from the TAC for information concerning the injuries, provision of such information by ATB, and attendance by the plaintiff at various medical appointments for assessments. Impairment assessments relied upon by the TAC were those performed by a respiratory physician (Dr Jonathan Burdon), orthopaedic surgeon (Mr Michael Dooley), and plastic surgeon (Mr Donald Marshall). Dr Burdon assessed the plaintiff’s chest injuries and found a 14% whole person respiratory impairment. Mr Dooley diagnosed a soft tissue injury to the cervical spine region and assessed a 10% whole person impairment (relating to the cervical spine and left upper extremity).[6] Mr Marshall diagnosed a depressed fracture of the left zygoma and scarring of the left chest as a result of the injuries and the treatment and assessed a 5% whole person impairment.
[6]The TAC subsequently disregarded the impairment allowed for the left upper extremity.
14 On 1 September 2008, ATB requested a serious injury certificate. Further requests were made in February and in May 2009. An application was made to the VCAT on the plaintiff’s behalf on 22 May 2009 in relation to the defendant’s alleged failure to conduct an impairment assessment. On 7 January 2010, the VCAT dismissed the application.
15 On 20 January 2010, the TAC wrote to ATB with “interim” impairment payment and arranged further assessments.
16 On 29 March 2010, ATB wrote to the TAC requesting confirmation that a limitations defence would not be taken.
17 On 5 August 2010, ATB wrote to the TAC requesting an indication of when the impairment would be determined. On 16 February 2011 there was a further letter from ATB to the TAC, requesting an impairment assessment within 7 days failing which further VCAT proceedings would be instituted.
18 By letter dated 14 June 2011, the TAC determined that the plaintiff had a 22% permanent whole person impairment in relation to the injuries to “the depressed left cheek bone, respiratory condition and mental status”.[7]
[7]DCB 59.
19 On 23 June 2011, ATB wrote to the TAC requesting a serious injury certificate. On 26 August 2011, the TAC prepared, but did not serve, a serious injury certificate. The certificate was served on 6 September 2011.
20 On 16 September 2011, ATB wrote to the TAC with particulars of the claim and on 28 September 2011 ATB issued the writ in the proceeding. The writ was served on the TAC on 4 October 2011.
21 On 10 January 2012, Allanah Goodwin of ATB swore an affidavit in support of the s 23A application. On 14 May 2012, the plaintiff and his father swore affidavits in support of his s 23A application.
Evidence
22 The plaintiff swore an affidavit on 14 May 2002 in which he stated that he does not recall the circumstances of the transport accident which occurred on 30 April 2002. He last remembers being a passenger in a car, but does not recall who was driving or where they were going, or the time of day. His next memory is of being in hospital and not being quite sure where he was. Since the accident he has lived with his father, as he has always done. He stated that he received benefits from the TAC but was unaware that there were additional benefits he could obtain which were not automatically given out by the TAC until he saw an advertisement for ATB and attended for advice. Since that time he has left the case in the hands of Allanah Goodwin of that firm.
23 At the hearing, the plaintiff agreed that he had had problems with memory since the transport accident. He could not recall his medical history, nor whether he was working as a labourer at the time of the accident, nor the type of car he was travelling in. He agreed that he was a passenger in the car but could not remember anything apart from “jumping into a car”. He denied instructing his solicitor as to the existence of a second car. He said there was no other car. He did not know a person named Ms Lila Clevas.
24 I note that a neuropsychological assessment of the plaintiff was performed by Professor Jennie Ponsford who reported on 13 April 2012[8] that the plaintiff was a man “of no more than borderline and possibly extremely low intelligence” who sustained a mild-moderate head injury in the motor accident, suffering significant skull and facial fractures. She noted that he was significantly traumatised by the accident and reported problems with memory after it. Professor Ponsford noted that a neuropsychological assessment conducted in July 2002 had found the plaintiff to be of borderline intelligence but with “some evidence of relatively greater impairment of complex attentional, and new learning skills that they attributed to his head injury”. Professor Ponsford noted that against the background of his low intellectual functioning, it was “difficult to discern the effects of a mild-moderate head injury as he sustained”. She felt that he had experienced significant stress and continuing pain problems since the injury which were most likely contributing to the cognitive difficulties he reports. She felt that any organically based cognitive impairments to his head injury were likely to be “relatively mild”. She noted that he relies on his father for assistance with personal care, and domestic and community activities of daily living and that without that assistance he would need supervised accommodation or care.
[8]PCB 168.
25 The plaintiff’s father, Mr Selcuk Koman, swore an affidavit on 14 May 2012[9] in which he stated that prior to the transport accident his son was very active and extremely fit. He was employed doing manual jobs. He could read and write and would read sports magazines. Since the accident, his son “seems to have forgotten how to read and write” and has been very badly affected, “including mentally”. His whole appearance has changed enormously, and he can only walk short distances. Mr Koman Snr stated that on the evening of the accident, his son went to see some friends, but did not take his car. He then received a phone call at 3 am and was told that his son had been at the Northern Hospital and was being taken by ambulance to the Royal Melbourne Hospital. In the final paragraph of his affidavit, he stated:
After the accident, I understand that a lady from the TAC came to see Mark. TAC then sent a form to our house which we completed and returned. Both my son and I thought that that was all that was needed for him to obtain whatever compensation he was entitled to. It was not until a number of years later that we saw an advertisement and decided to get further advice.
[9]PCB 175-176.
26 Mr Nick Tsongas, solicitor, who has the care and conduct of the action on behalf of the TAC, swore an affidavit on 12 June 2010 in which he traced the history of the correspondence between the TAC and the plaintiff or his solicitors and the unsuccessful attempts made in 2008 and 2011 to locate the owner of the vehicle whose registration number was referred to in the plaintiff’s claim form as belonging to the car in which the plaintiff was a passenger at the time of the accident. The affidavit also details the inquiries made by the TAC in June 2009 with Victoria Police concerning “Officer Jonas” at Campbellfield Police Station as referred to by the plaintiff in his claim form. Those inquiries revealed that no sworn police officer “Jonas” existed, and that Campbellfield Police Station was not operational in 2002.
27 Mr Tsongas deposed to the fact that in spite of the inquiries outlined in his affidavit, the TAC has not been able to locate or identify: the driver of the motor vehicle in which the plaintiff was a passenger; any other passenger/s in that motor vehicle; any independent witnesses; any attending police officers; nor any person who allegedly took the plaintiff to hospital following the transport accident.
Legal principles
28 Section 23A of the Act applies to any action for negligence or breach of duty where the damages claimed consist of or include damages for personal injuries. Subsections (2) and (3) provide:
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which the action on the cause of action may be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action 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.
29 The matters which the court is required by s 23A to take into account cannot all be weighed against each other. Rather, the court “must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all”,[10] bearing in mind that the applicant bears the onus of persuading the court that it is just and reasonable to extend the limitation period.
[10]Tsiadis v Patterson [2001] VSCA 138 at [33] per Buchanan JA.
30 The court must consider the conduct and position of both parties, including the effect of the outcome of the application on each of them.[11]
[11]Bell v SPC Ltd [1988] VR 123 at 125-6, per Brooking J; Tsiadis v Patterson [2001] VSCA 138 at [33] per Buchanan JA.
31 The delay referred to in s 23A(3)(a) above is the delay between the accrual of the cause of action and the making of the application for an extension of time.[12]
[12]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.
32 When considering prejudice in the context of para (b) of s 23A(3), the court’s attention is not limited to prejudice which is present or is likely to occur on the balance of probabilities, but also extends to potential prejudice.[13]
[13]Tsiadis v Patterson [2001] VSCA 138 at [23] per Buchanan JA.
33 Where prejudice is alleged by reason of the effluxion of time, it is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.[14]
[14]Cowie v State Electricity Commission (Vict) [1964] VR 788; Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474 per Gibbs J.
Findings and reasons
34 This is an unusual case in many ways. The circumstances of the transport accident have been shrouded in mystery from the outset. The car in which the plaintiff was a passenger at the time of the accident has not been identified, nor has its driver been located. The police officer who was identified as having allegedly attended at the scene has never been a serving officer in that location, nor was there a police station operating in the location identified in the claim form. The plaintiff saw a solicitor nine months before the expiry of time for the issue of a writ. However, the plaintiff was legislatively prevented from issuing a writ because of the requirement to obtain a serious injury certificate and, therefore, to obtain an impairment assessment. The process of obtaining an impairment assessment from the TAC was a lengthy one, and no doubt this was partly due to the dearth of information about the circumstances of the accident.
35 I accept that the reason for the delay from the date of the accident until seeking advice in 2007 was the plaintiff’s unawareness of his entitlements. The neuropsychological report of Professor Ponsford in 2012 makes it clear that the plaintiff is a person of very low intellectual functioning and had been assessed as such in 2002. But for the assistance of his father in all activities, he would have needed to live in supported accommodation. On top of that pre-existing low level of intellectual functioning, Professor Ponsford opined that he suffered skull fractures and significant trauma in the transport accident as well as some mild cognitive deficit flowing from his mild-moderate head injury. She felt that the psychological sequelae of the transport accident contributed to his worsened cognitive functioning.
36 I accept that there is substantial prejudice to the defendant flowing from the delay. However, in this case, I consider that the circumstances of the transport accident were unclear right from the start. It would be reasonable on any view for any person suffering the injuries such as those suffered by the plaintiff to wait at least 18 months until those injuries had stabilised before seeking legal advice. In this case, however, the trail would arguably have been as cold at that point as it is now. “Officer Jones” never existed, nor did a “Campbellfield police station”. The registration number was traced to a person named Ms Lila Clevas and the registration expired in 1999 and she cannot be traced. The alleged witness referred to in the ambulance report was never identified.
37 I consider that once the plaintiff consulted a solicitor he acted diligently and forcefully through his solicitor in attempting to get a prompt impairment assessment from the TAC. I do not consider that the delay until the impairment assessment was obtained is attributable to the plaintiff, as he attended appointments promptly (apart from two appointments which were missed in May 2008 but were subsequently attended in June 2008). That delay is attributable to the time taken by the TAC to conclude its investigations and arrange all appropriate medical assessments.
38 I consider that the plaintiff was unaware of his rights until 2007 and then acted promptly thereafter through his solicitor to attempt to assert his rights within time. I consider that the prejudice flowing to the defendant from the delay is in fact prejudice which was effectively present from the date of the accident because so little was known at that time about it. And if the prejudice was present so early on in the piece, it was nevertheless reasonable for the plaintiff to take some time to assert his rights. I acknowledge the prejudice to the defendant flowing from the delay. I also acknowledge that the plaintiff cannot be held responsible for the difficulties occasioned by his having suffered a head injury and being unable to recall the circumstances of the accident. Given the unusual circumstances of this case I consider that it is just and reasonable to extend the limitation period until 28 September 2011.
Conclusion
39 I grant the plaintiff an extension of time until 28 September 2011. I reserve the question of costs.
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