Lexa v Transport Accident Commission (Ruling)
[2018] VCC 1883
•21 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-01707
| ROBERT STEVEN JAMES LEXA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 3, 4 and 5 October 2018 | |
DATE OF JUDGMENT: | 21 November 2018 | |
CASE MAY BE CITED AS: | Lexa v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1883 | |
RULING
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Subject: LIMITATION OF ACTIONS – SERIOUS INJURY APPLICATION
Catchwords: Limitation of actions – personal injury – application to bring claim for common law damages out of time – substantial delay in bringing claim – prejudice – fair trial – serious injury – disentanglement – multiple impairments
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A; Transport Accident Act 1986, s93
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 Incorporated v ADC (2016) 258 CLR 134; Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Arisoy v Yoogalu Pty Ltd [2010] VSC 631; Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors [2017] VSC 44; Holcombe v Hunt [2018] VSC 55; Morrison & Anor v Judd (unreported) NSWCA, 40504 of 95, 10 October 1995; RepcoCorporation v Scardamaglia [1996] 1 VR 7; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Richards & Anor v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314
Judgment: Extension of time granted. Section 93 application dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms M Lang | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Solicitor for the Transport Accident Commission |
HER HONOUR:
Introduction
1 The plaintiff suffered injury in a transport accident in Mildura (“the accident”) on 11 August 2000 (“the said date”).
2 By Originating Motion dated 21 April 2017, the plaintiff’s current solicitors, Ryan Legal, sought leave to extend the time within which the plaintiff may bring his proceeding for damages arising from the injuries suffered by him in the accident.
3 Leave was also sought pursuant to s93 of the Transport Accident Act to bring proceedings for damages in relation to the plaintiff’s accident injuries.
4 The limitation period expired on 11 August 2006, six years after the said date. It was not until 31 March 2017 that the defendant was first notified of the plaintiff’s intention to bring common law damages in relation to the accident.[1] The relevant delay for the purposes of the application for an extension of time is therefore more than ten years.
[1]Letter from Ryan Legal to the defendant
Legislation
5 Section 23A(2) of the Limitation of Actions Act 1958 (Vic) (“the Act”) empowers a court to extend the limitation period within which an action for personal injury may be brought. The Court must be satisfied that it is “just and reasonable to do so”.
6 In determining whether it is so satisfied, s23A(3) of the Act requires that the Court “shall have regard to all the circumstances of the case including:
(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.”
Legal 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.[2]
[2]per Beach JA in Marceta v Efandis (2016) VSC 265; per J Forrest J in Sparkes v Hylemit (2016) VSC 453 at paragraph [33]
8 In Brisbane South Regional Health Authority v Taylor,[3] (“Brisbane South”), McHugh J described the reasons for the limitation regime:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
First, as time goes by, relevant evidence is likely to be lost. Second, 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. Third, 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. … .”
[3](1996) 186 CLR at paragraphs [551]-[552]
9 The onus is on the plaintiff to satisfy the Court that it is “just and reasonable” to extend the period. As McHugh J stated in Brisbane South:[4]
“A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”
[4](supra) at paragraph [553]
10 In Prince Alfred College Inc v ADC,[5] the High Court identified two fundamental propositions established by its decision in Brisbane South which guide the exercise of the Court’s discretion on an application for an extension of time:
“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.
The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision.
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”[6]
(citations omitted)
[5][2016] 258 CLR 134 at paragraphs [99]-[100]
[6]Brisbane South (supra) at paragraphs [544], [549]-[550] and [556]
11 In Brisbane South, McHugh J also said:
“the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced.
… The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. … .”[7]
[7](Supra) at paragraph [555]
12 In Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors,[8] T Forrest J conveniently set out the applicable legal principles in extension of time applications.
[8][2017] VSC 44
“The principles that apply to this application are uncontroversial:
(a) The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[9]
(b) Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.
(c) The considerations referred to in s 23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to ‘synthesise’ the competing considerations ‘in arriving at a conclusion that account of them all’.
(d) The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.
(e)Relevant prejudice to a defendant is that which actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period.
(f)The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.”
[9]per Toohey and Gummow in Brisbane South (supra) at paragraph [547]
13 In Tsiadis v Patterson, [10] Buchanan JA, with whom Ormiston and Callaway JJA, agreed, said:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”
[10][2001] VSCA 138 at paragraph [33]
14 In consideration of the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited (“Gordon”),[11] J Forrest J stated:
“… 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’. … .”
[11][2007] VSC 517 at paragraph [79]
15 The plaintiff swore an affidavit in relation to the s23A application on 23 January 2018. He was extensively cross examined in relation thereto.
The accident
16 The accident occurred by reason of another driver going through a Give Way sign and colliding with the plaintiff’s vehicle. The plaintiff was led to believe the other driver was drunk, but now believes that is not the case.[12]
[12]Transcript “T” 20
17 The police attended the accident scene.[13] The local press, the Sunraysia Daily, also attended at the accident scene and reported on the accident and published a photograph of extensive damage to both vehicles. It also reported the other driver was issued with a penalty notice for failing to obey a stop sign.
[13]Victoria Police Incident Report
18 After the accident, the plaintiff was taken to Mildura Base Hospital by ambulance.[14] A Transport Accident Commission (“TAC”) Claim for Compensation was lodged, signed on 9 May 2001.
[14]Ambulance Victoria report dated 11 August 2000; Mildura Base Hospital printout from Patient Management System dated 11 August 2000
19 The plaintiff obtained help from a process server, Peter Collins,[15] to fill out the TAC Claim Form.[16] It was not the plaintiff’s writing on the form, but the information in it was correct.[17]
[15]T22
[16]T17
[17]T19
20 The plaintiff did not believe he did not send the Claim Form to the defendant until 10 August 2001.[18] It was sent off when the process server came out so the ambulance could get paid. The plaintiff had been in a bad way and was not “coping with stuff”. He thought he had five years to put in his claim.[19]
[18]T48
[19]T18
21 The plaintiff did not receive any loss of earnings payments. He did provide his previous payslips and group certificates to the defendant.[20] He told the defendant he could not provide taxation returns as he had not done his tax. He had not lodged taxation returns for three years because he “just let it get away” from him.[21] He did not refuse to provide his taxation returns - he had not done them so he could not do so.[22]
[20]T26
[21]T29
[22]T63
22 The plaintiff did not appeal the defendant’s decision because he was under a lot of pressure. The fact that he knew John Zigouras (“John”) of JN Zigouras (“JNZ”) did not mean he knew what went on with solicitors. He was not a solicitor.[23]
[23]T27
23 John got the plaintiff to arrange for him to do his tax affairs in 2010 so he would not get into trouble with the Taxation Department, not to help his case.[24]
[24]T29
Previous claims
24 The plaintiff agreed he made a Motor Accidents Board (“MAB”) claim in relation to a car accident in May 1975 when he was hit as a pedestrian. He suffered soft tissue injury. He thought Maurice Blackburn in Melbourne acted for him He had a little bit of familiarity about the claim process, but he was only twenty then. His father told him to see a solicitor. The plaintiff understood he could have a damages claim for a car accident. He received a settlement for this claim.[25]
[25]T23
25 The plaintiff then had a motorbike accident in 1981-1982. He must have made a claim in Melbourne, but did not think Maurice Blackburn acted for him. He could not remember going to a solicitor, but he did injure his neck. He could not remember whether he prosecuted a claim. There was a settlement of his motorbike damage.
26 The plaintiff agreed he would have known, if he was injured enough, he could prosecute a claim and get a solicitor and seek compensation. He was not sure whether he went through the MAB in relation to this accident.[26]
[26]T24
27 The plaintiff explained one of the things he had been complaining about since being knocked on the head in the 2000 accident was his memory. It was “stuffed.”[27] He only deduced he was unconscious and knocked out in the accident because he remembered the next thing after the collision which occurred at 7.35am was when the police and ambulance attended. The ambulance report set out they arrived at 7.49am.[28]
[27]T25
[28]T127
28 After the plaintiff lodged his claim, he had intermittent dealings with the defendant over the years. He found these dealings extremely difficult and very frustrating. Since the accident, he had had significant psychiatric battles, and his coping mechanisms were not good and were compounded by his dealings with the defendant.[29] He had no idea how many dealings he had with the defendant in 2002-2003. They were off and on, ongoing.[30]
[29]T54
[30]T53
29 The plaintiff deposed that because of his ill health, he variously ignored the defendant or requested John look after dealings with it. Often the defendant sent mail to the plaintiff’s home address, which he did not receive, because his home did not have mail delivery. He explained however:
“[T]hey were accusing me of ignoring them because they were sending my mail to the residential address where mail isn’t delivered instead of my post office box. Then they’d accuse – when I didn’t respond, they’d accuse me of ignoring them and then I’d flick pass it to John and say: ‘Look, I can’t deal with this’.”[31]
[31]T14
30 The plaintiff has known John for many, many years.[32] He had regular contact with him in his office at Mildura, both in a personal capacity and other capacities, such as attending in his various roles as a union organiser, and initially being involved in the local ALP and the local Trades and Labour Council.
[32]T16; maybe eighteen or nineteen years
31 The plaintiff had spoken to John about the accident in the years after it occurred. Certainly, he had spoken to him no later than 2005, and believed he had done so prior to that. In 2005, John was acting on his behalf in respect to various matters, which he believed included his rights arising out of the accident.
32 Between 2005 and 2008, the plaintiff had spoken to John a lot about his claim on numerous occasions. John kept reassuring him that he would “get onto them,” meaning the defendant, and “make them pay”.
33 In addition to these discussions, the plaintiff also had dealings with other people at JNZ. He could recall James, and a solicitor, Gavin Francis. He understood James turned out not to be a qualified solicitor. For the period Gavin Francis was looking after his file, he seemed to progress things.
34 The plaintiff knew John did common law cases. John asked him whether he had made a claim. The plaintiff was expressing his dissatisfaction with his dealings with the defendant and that he had not got any wages compensation, even though he had sent them his payslips. He told John he did all the paperwork, and from then, it would have been before 2005, he was sure John took it under control, because the plaintiff was pretty sure he was sent a letter in 2005.[33]
[33]T16
35 The plaintiff had certainly spoken to John no later than 2005 about difficulties getting his wages from the defendant. He pretty much left it to John. As far as he was concerned, he had engaged John at that point. John said he would take care of it.[34]
[34]T34
36 The plaintiff honestly could not remember when he consulted John and engaged him to act on his behalf.[35] He could not remember because of his memory problems after the accident. John said he would take care of it, and the plaintiff accepted it. The plaintiff thought “beauty, right, that’s good”. He believed John was looking after him from the time he said he was. That would have been at least 2005.[36]
[35]T34
[36]T35
37 Somewhere along the line, the plaintiff did a “no win no fee”, and Gavin Francis acted for him for a while. He actually got things rolling along quite well, and then he decided to go to Ballarat.[37]
[37]T35
38 The plaintiff thought he signed more than the one “no win no fee” that was dated 5 March 2008.[38] John’s office would hand him letters when he came in.[39] He thought there was a letter from John that was dated 2005 that he had seen before he signed the 2008 fee agreement.[40]
[38]T36
[39]T37
[40]T66
39 The plaintiff honestly did not know what the limitation period was back then. He thought you were covered once you put in a claim. It was since explained to him that was not correct –
“Gavin Francis did a whole lot of work, and he spoke to people at the TAC and they’d come up with some precedent thing and John said ‘Don’t worry it’s all going blah blah blah’, and ‘then next thing you know, Gavin’s working in Ballarat and it sort of went stale’.”[41]
[41]T39
40 The plaintiff now understands what the limitation period is and that he had to bring a claim within six years.[42] Gavin Francis told him he was dealing with that aspect of it. He did not actually call it six years. He said there was a problem. John got him working on it, and there was a precedent because of his mental state after the accident, and it was being dealt with. Gavin Francis did not talk to the plaintiff in those terms, he just said “Look, you’re running out of time, we’ve got to do this, I’m going to find – I’ve spoken to TAC”.[43]
[42]T39
[43]T40
41 The plaintiff did not think Gavin Francis talked to him about needing to get a serious injury certificate, and the first time he learnt about that, he thought, was from Mr Ryan.[44] All the plaintiff knew was Mr Francis was getting it all underway and making up for lost time, and that was it. He did not know of the six years with him.[45]
[44]T40
[45]T49
42 John was the plaintiff’s friend, and he accepted he was dealing with it. The plaintiff had a whole lot of other issues happening in his life that he was trying to deal with – “It’s sometimes, it’s just comforting to think well okay, that’s being taken care of by someone else, I’ve got to look after other things.” He was expecting John was looking after things.[46]
[46]T41
43 From 2008, the plaintiff left it in John’s hands. He sent him to specialists in Melbourne and there was an impairment decision.[47]
[47]T50
44 The plaintiff, in trying to place his discussions with John, said he could swear on the bible he had been discussing his accident with John as early as 2003, and John would be saying “don’t’ worry I’ll take care of it” and he accepted that because John is a solicitor and a friend.[48]
[48]T67
45 The plaintiff denied, because of his union activities, his knowledge of his legal rights was better than the person in the street. If he could not handle things, he would take them to John, “simple”.[49] He agreed he ran his own wrongful dismissal case in the Industrial Relations Commission and prepared the necessary documents.[50]
[49]T102
[50]T125
46 Although an attendance with “MK” on 27 September 2010 was mentioned in a JNZ file note, there was not a discussion then about a possible negligence action against John.[51]
[51]T125
47 From 2005 onwards, the plaintiff had been psychiatrically unwell. He had had problems with motivation and with general day-to-day functioning. [52] He assumed his solicitors were looking after his rights and doing what was necessary, and he relied on them, because of his problems, to look after matters.
[52]T41
48 The psychiatric unwellness the plaintiff was referring to was that things were just getting all too much for him in 2005. He then found out, years later, that because he was a primary producer, the defendant should have provided funds for someone to do work on his farm. Had they done that in the first place, he would not have lost his farm, and the vines could have been worked. Once it started to go backwards, it all did, and it was that one year that he could not work the vines, because prior to that, he was making a “nice tidy bit of wedge off that block”.[53]
[53]T42
49 The plaintiff confirmed he had suffered a series of nervous breakdowns as JNZ advised the defendant in a letter of March 2008.[54]
[54]T130
50 The plaintiff stopped working for JNZ after his son died in November 2013. As John did not want to pursue a claim on his behalf in relation to his son’s death, the plaintiff went to Ryan Legal, who filled out the paperwork. [55]
[55]T52
51 It was not until the plaintiff instructed Ryan Legal that he understood there was a six-year limitation period in respect to bringing a common law claim and what that meant.[56] That had not previously been properly explained to him. He had been reassured the claim had been lodged, and whatever issues there were in respect to time had been sorted out. He understood that since retaining Ryan Legal, a serious injury application had been made, and the defendant had been provided with materials in support thereof. He was advised Ryan Legal lodged the application by letter dated 22 June 2017.
[56]T47
52 Mr Ryan explained there was a six-year limitation on a serious injury application.[57] The plaintiff confirmed he believed he had five years to put in the initial claim and then he would be covered.[58]
[57]T47
[58]T48
Prejudice
53 Prior to the accident, the plaintiff had been seeing Dr Webster at Ontario Medical Clinic. He remains in practice and continues to be the plaintiff’s treating general practitioner. He is able to provide any advice to the defendant they may require in relation to any pre-existing health issues or issues subsequent to the accident.
54 The plaintiff’s psychologist, Ms Milner, has treated him since 2008, and continues to do so. She has provided reports to Ryan Legal and the defendant, and is available to provide any additional information which may be required.
55 The defendant has organised for the plaintiff to be assessed by a number of doctors on their behalf, including Mr Paul Kierce, Dr Lester Walton and Associate Professor Doherty.
56 JNZ organised for the plaintiff to be assessed by various doctors for the purposes of this claim, including Dr Carol Burton, clinical psychologist, on 21 June 2011; Dr Leslie Roberts, neurologist, on 24 January 2012; Lindsay Vowels, neuropsychologist, on 17 March 2011 and Mr Thomas Kossmann, orthopaedic surgeon, on 5 October 2012.
57 Since instructing Ryan Legal, they have obtained medico-legal assessments from Mr Thomas Kossmann of November 2017 and Dr David Weissman, psychiatrist, dated 6 December 2017.
58 Despite the problems which the plaintiff had encountered with the defendant throughout the conduct of his claim, it had accepted his injuries and made payments.
59 By letter dated 27 May 2016, the defendant advised it determined the plaintiff’s level of impairment at 12 per cent due to the accident. On 15 August 2017, it approved the costs associated with MRI scans on the plaintiff’s lumbar spine, cervical spine, shoulders, hand and right thumb.
Correspondence
60 JNZ wrote to the plaintiff on 5 March 2008.
61 In that correspondence, reference was made to a recent discussion in which the plaintiff had indicated that he wished for JNZ to act on his behalf in relation to his motor vehicle accident claim.
62 That correspondence enclosed a fee agreement signed by JNZ on 5 March and signed by the plaintiff 8 March 2008.
63 By letter dated 28 March 2008, JNZ wrote to the defendant in the following terms:
“We refer to your letter dated 17 March 2008 containing the basic material of his claim.
Unfortunately, Mr Lexa has suffered a series of nervous breakdowns for the last five or six years and has been unable to cope with lodging the various documents that are required.
As a result of these problems since the accident, he has become bankrupt as a consequence of not being able to manage his affairs.
We would appreciate a copy of any medical/hospital reports that you may have obtained in this matter.
We note he was taken to Mildura Hospital.”
64 In a JNZ file note dated 27 September 2010, it was noted a Cost Agreement was signed on 7 March 2008:
“First spoke to JNZ re MCA in 2004/2005. Saw him many time before 7 March 2008.”
65 A second part of that note headed with the initials “MK” read as follows:
“Apply to TAC for IB, apply to TAC for consent to issue out of time. Tell client (especially in light of JNZ’s absence ? of possible negligence of JNZ? YES.”
The Defendant’s evidence
Affidavit in opposition to the Section 23A application
66 The defendant’s solicitor, Adrian Owen, swore an affidavit on 26 February 2018.
67 On 10 August 2001, being almost twelve months after the accident, the plaintiff lodged a Claim for Compensation with the defendant, signed by him on 9 May 2001.
68 On 14 August 2001, the defendant sent a letter to the plaintiff advising, inter alia, his claim for TAC benefits for medical and related expenses had been accepted and he was allocated TAC Claim No. 01/00663, advising the defendant had considered the plaintiff’s claim for loss of earning capacity and requested he provide copies of his income tax returns for the financial years ending 30 June 2000 and 2001.
69 Exhibited to Mr Owen’s affidavit was a copy of the printout of payments made by the defendant in respect of that claim as of 15 February 2018.
70 On a date unknown, but believed to be between 17 August and 10 November 2001, the plaintiff provided the defendant with wage records from Coomealla Memorial Sporting Club and TRA Productions.
71 The defendant’s Memo of Action Taken file notes record entries dated 10 August, 13 August (two), 20 September and 10 November 2001.
72 Between 11 November 2001 and 16 January 2008, the defendant did not receive any correspondence or communication from either the plaintiff or any legal adviser acting on his behalf until January 2008.
73 On or about 17 January 2008, JNZ spoke to the defendant advising, inter alia, that they had been consulted by the plaintiff in relation to injuries he suffered in the accident.
74 Thereafter, there was written correspondence between JNZ and the defendant in the periods between January and 31 March 2008, and then between 27 January 2010 and 29 July 2016 in respect of the plaintiff’s claim for no-fault benefits.
75 On 7 June 2010, JNZ received a letter from Mildura Base Hospital advising, inter alia, that the records applicable to the accident had been destroyed and that they provided a printout from the Hospital patient management system.
76 On or about 9 November 2016, Ryan Legal wrote to the defendant advising, inter alia, they acted on behalf of the plaintiff. This was the first correspondence received from Ryan Legal in respect of the plaintiff and the accident.
77 On or about 31 March 2017, Ryan Legal next wrote to the defendant advising, inter alia:
(a)they had recently received instructions and had not yet been able to obtain the plaintiff’s file from JNZ;
(b)they had instructions to make an application for a serious injury certificate and a common law claim for damages;
(c)they sought an undertaking from the defendant that a statute of limitations defence would not be pleaded against the plaintiff provided he issued common law proceedings within twenty-eight days of being granted a serious injury certificate.
78 This was the first notification received by the defendant that the plaintiff intended to bring a claim for common law damages in respect of the accident, or a request that the defendant waive any limitation defence upon which it might rely.
79 Save for enquiries made by Ryan Legal with the defendant in respect of the subpoena served by the defendant upon JNZ, no further communication from Ryan Legal had been received in respect of whether they had obtained the plaintiff’s file from JNZ.
80 Mr Owen deposed to efforts he had made to obtain details of the plaintiff’s claim for loss of earning capacity. He contacted Treasury Wine Estates, the owners of Lindeman’s Wine. On 1 February this year, he received an email from Treasury Wine Estates which stated it had no record of the plaintiff, or engaging the labour-hire firm for which the plaintiff worked. The email stated the plaintiff may have been employed by Mildura Wines Australian Vintage in Merbein.
81 Mr Owen made contact with Oasis Aged Care. On 19 February this year, it advised by email it could confirm the plaintiff was listed as an employee in 2007, but it did not have records that went that far back. The email stated the plaintiff would have worked within the maintenance gardening team.
82 Mr Owen made enquiries of the Australian Financial Security Authority and on 30 January this year, received a copy of the plaintiff’s Bankruptcy Sequestration Order dated 3 November 2005, and on 7 February this year, received a copy of the plaintiff’s Statement of Affairs dated 15 December 2007.
83 Mr Owen had made contact with PPB, the plaintiff’s trustee in bankruptcy. On 5 February this year, he received an email from PPB advising that they have no record on file regarding the plaintiff’s bankruptcy.
84 Mr Owen had instructed Kerrigans to make enquiries with the Coomealla Memorial Sporting Club and the Liquor and Hospitality Union.
85 Mr Owen made contact with the Coomealla Memorial Sporting Club on 20 February 2018 and spoke to managing director, Craig Mills, payroll officer, Jenny Verhelst, and Andrew Williams, operations manager.
86 Having regard to the plaintiff’s delay of more than sixteen years in notifying the defendant of his intention to issue proceedings, Mr Owen believed the defendant was prejudiced in its ability to properly defend the plaintiff’s claim for common law damages.
87 Mr Owen swore a further affidavit on 20 September 2018.
88 Mr Owen made enquiries of the labour-hire company, Programmed Maintenance Pty Ltd, the successor in title to Atria Production System regarding the plaintiff’s employment at Mildura wines. Further, he instructed Kerrigans to make enquiries with the Liquor and Hospitality Union and received a report from them.
89 On 7 March 2018, Mr Owen caused to be served upon the Fair Work Commission, a subpoena to produce documents in respect of Fair Work Commission files involving employers, Dudley Marrows and the Australian Liquor and Hospitality and Miscellaneous Workers Union.
Overview
90 At the conclusion of all the evidence, I was addressed by counsel for the defendant in relation to this application.
91 It was submitted the plaintiff’s explanation for delay was not supported by any medical evidence. The defendant took issue with the psychiatric unwellness as an explanation, as if there was anything of merit, it was submitted, it could have been supported by Dr Webster, who is still the plaintiff’s treating general practitioner.[59] If there was something to Dr Webster’s comments on 7 December 2005, something should have been provided by him.[60]
[59]T144
[60]T141
92 However, as counsel for the defendant acknowledged, Dr Webster’s notes indicated the prescription of Zoloft for depression soon after the accident – from August 2000.[61] Further, he mentioned he was concerned with the plaintiff’s behaviour and gave him a leaflet about Bipolar Disorder on 7 December 2005.[62]
[61]T142
[62]T143
93 Counsel for the defendant also submitted the plaintiff had an awareness of the limitation period in 2008, without knowing the specifics of it, and he knew he was out of time. That reflected poorly on what he did, as opposed to his solicitors, from then on. It was submitted the plaintiff should have been prosecuting his rights or insisting his solicitor explained to him what was happening. At that stage, he was two years out of time.[63]
[63]T146
94 I indicated I considered the plaintiff’s evidence totally fitted in with JNZ’s letter to the defendant of 28 March 2008 which was a very important document in this application. It was consistent with the conversation between the plaintiff and Gavin Francis as the plaintiff described, and his understanding that Mr Francis was handling the matter.[64]
[64]T147
95 Further, I indicated I did not think the plaintiff’s experience with industrial relations or the fact that he worked in the JNZ office gave him a knowledge of the limitation period.[65]
[65]T147
96 After counsel indicated he knew my view, he stressed the plaintiff should have been more aggressive in respect of what his solicitors were doing.[66]
[66]T148
97 Counsel also submitted the possibility of an action in negligence against JNZ may be relevant to the exercise of the Court’s discretion.[67]
[67] Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors [2017] VSC 44
98 It was submitted in all the circumstances the observations of Macaulay J In Arisoy v Yoogalu Pty Ltd[68] may be apposite:
“Considering the conduct and position of both parties, including the effect of the application on each of them, I am not persuaded that it is just and reasonable to extend the limitation period. The primary obstacle to exercising my discretion in the plaintiff’s favour is the opacity of the picture concerning her role in the delay. Whether it was attributable to her conduct, or her solicitors, or a blend of both, is not at all clear. For all I know, the plaintiff may have been quite ambivalent about bringing any proceeding for some part or all of the limitation period, and her desire to bring a proceeding has only crystallised since it elapsed. I simply do not know.
Given that an extension of time involves an indulgence, and amounts to an exception to what Parliament has provided to be the general rule, the lack of any clear explanation for the delay, to be weighed in combination with all other factors, is in my view fatal. It was submitted there were matters in a general way that were prejudicial, and they were tied up with the serious injury application, although there had been an admission of liability.”
[68][2010] VSC 631 at paragraphs [40]-[41]; T149
99 Further, it was submitted specific prejudice in this case arises given the allegations made by the plaintiff concerning the consequences of the accident and the injuries he has suffered.[69] These were submitted to include:
[69]T149
· records of the Mildura Base Hospital had been destroyed;
· the plaintiff having not been examined at the defendant’s request until 2015;
· some of the plaintiff’s income tax returns cannot be located;
· the plaintiff’s missing employment records.
100 Whilst counsel for the defendant indicated that it would seem I accepted the plaintiff’s explanation for the delay, it was submitted there was a significant period of time when the plaintiff did nothing or did little to push his solicitors to a resolution of the matter between 2008, and certainly 2010 through to 2017 – “that was an inordinate delay itself.”[70]
[70]T151
101 It was submitted the legislation is an indulgence, in line with Brisbane South, and that there are just not good enough reasons provided by the plaintiff to explain the delay between 2000 and 2008. In those circumstances, the application should be refused.[71]
[71]T151
102 It was submitted it was also an issue of prejudice and relevant to the proper running of a damages trial, that an experienced psychiatrist like Dr Weissmann, who is well versed in this Court, could not disentangle psychiatric issues because of the effluxion of time.[72] I indicated this however might be a problem the plaintiff has proving his case, rather than an issue of prejudice.[73]
[72]T169
[73]T170
103 It was submitted there was very significant prejudice to the defendant because it had been deprived of the opportunity of properly assessing the plaintiff’s condition throughout the years.[74]
[74]T170
104 I indicated at the conclusion of the address by counsel for the defendant that my focus was more on the s93 application than the application for an extension of time. I advised the parties that having looked at the matrix of all the factors, in my view, it was just and reasonable to extend the period of time. In those circumstances, I was not addressed by counsel for the plaintiff in relation to this application.[75]
[75]T174
105 The question is whether an extension of time would be just and reasonable having regard to all the circumstances of the case.[76]
[76]Holcombe (supra) at paragraph [51]
106 Expanding further on the comments I made during the hearing, I accept the plaintiff’s explanation for the delay in the defendant being advised of his intention to bring common law proceedings.
107 I found the plaintiff to be a credible witness who tried to give honest answers to questions on a wide range of topics, dating back many years. At times, he was somewhat verbose in his responses, however, I did not consider there was any attempt on his part to avoid answering questions directly. As Dr Weissman explained, the plaintiff tended to endorse, acknowledge and highlight emotional and physical symptoms due to the accident.
108 I accept that at all times from at least 2005, when the plaintiff discussed his accident with John, it was his understanding that John was taking care of the claim on his behalf. In those circumstances, it was not up to the plaintiff to be more aggressive in the prosecution of his claim, as counsel for the defendant stated should have been the case.[77]
[77]T148
109 I accept the plaintiff’s evidence that he was unaware of there being any six-year limitation period until he saw Ryan Legal. Mr Francis told him in 2008 that there was a problem in respect of the timing of his claim and advised the plaintiff at that stage he was looking after this issue.
110 I do not accept that because the plaintiff was working at JNZ, or because of his involvement as a union official and attending the Fair Work Commission, that he had any greater understanding of his entitlements at common law than a person on the street.
111 Further, I accept that from at least 2005, the plaintiff had significant mental health issues[78] and personal financial problems, that meant he had little ability to focus on any potential common law claim which, he explained, he left to JNZ to do on his behalf.
[78]Zoloft first prescribed in August 2000. Bipolar noted by Dr Webster on 7 December 2005; T143
112 In my view, the plaintiff has provided a satisfactory explanation for his delay in seeking legal advice and bringing proceedings. He left the matter in the hands of his solicitors and it was reasonable for him to rely on their expertise. In my view, it would be unjust to visit any tardiness of the plaintiff’s solicitors upon him.[79]
[79]Per T Forrest J in Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors (supra) at paragraph [22]
113 Thus, the emphasis to be given to the plaintiff’s conduct in the synthesis is diminished whilst other powerful factors that support the conclusion that an extension would be just and reasonable remained operative.[80]
[80]Holcombe v Hunt [2018] VSC 55 at paragraph [54]
114 Counsel for the defendant submitted if the delay was the fault of JNZ, the Court may have regard to a possible action against that firm.
115 In Morrison & Anor v Judd,[81] referred to by Forrest J in Gordon,[82] Kirby P said the availability of an action against a negligent legal representative is relevant because common sense says that it is so. His Honour referred with approval to what had been said by Smith J in the Appeal Division of the Supreme Court of Victoria in Repco Corporation v Scardamaglia:[83]
“In the present case, if the section does require consideration of the possibility of Mr Scardamaglia's right to sue his legal representatives, I am not persuaded that that possibility is something that should affect my view that on balance it would otherwise be just and reasonable to exercise the discretion in his favour. While it might be said that on the evidence before the court the rights against the legal representatives appear to be strong, there is no admission of negligence by the legal representatives and the issues that may arise in any such action have not been investigated or pursued fully in these proceedings. In any event, confining Mr Scardamaglia to an action against the legal representatives would carry with it its own prejudice. He would be able to seek compensation not in respect of his injuries, but for his loss of his right to sue Repco. He would find himself having to prove two cases - the original case against Repco and a further case, the case against the legal representatives. The proceeding would, therefore, be more time consuming and more costly. There would also be a real risk, that, if successful, any sum recovered would be less than any sum that he would have recovered in the original proceeding; for any damages awarded would be for the lost chance to recover damages in the proceedings against Repco. … .”
[81]Unreported, NSWCA, 40504 of 95, 10 October 1995
[82]Supra
[83][1996] 1 VR 7 at paragraph [15]
116 Subsequently, in Tsiadis,[84] the Court of Appeal revisited this issue and stated authoritatively that the plaintiff’s right to sue his former solicitors was of relevant consideration in an application for an extension of time, where Buchanan JA said the weight to be given to the availability of a cause of action against a solicitor would depend upon the circumstances of each case.
“The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd. v. Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.”
[84](supra) at paragraph [28]
117 As Forrest J pointed out in Gordon,[85] it follows that a potential claim against former solicitors is a relevant consideration but that the question of what weight is to be given to it depends upon the circumstances; a Court must be careful in ascribing weight to the prospect of such a claim given that the full circumstances surrounding it may not be known.[86]
[85]Supra
[86](supra) at paragraph [86]
118 A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against a solicitor, as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added cost and the complexity of the proceeding against the former solicitor.
119 In Gordon, the strength of the claim against the solicitors could be determined. Unlike in Scardamaglia and Tsiadis, Forrest J thought the prospect of a successful claim against the former solicitors must be given real consideration.[87]
[87](supra) at paragraph [113]
120 In the present case, the likelihood of the plaintiff succeeding in an action against JNZ cannot be known with any precision,[88] unlike the situation in Gordon where Forrest J had no such difficulty.[89] In Gordon, apart from issuing the writ, the case was not simply prosecuted adequately, with no plausible explanation for the failure to do so.[90]
[88]Buchanan JA in TsiadisvPatterson (supra)
[89]Gordon (supra) at paragraph [109]
[90](supra) at paragraph [109]
121 It is unclear when the plaintiff first spoke to John with JNZ advising the defendant for the first time in 2008 that it acted on his behalf, although the MK file note mentioned an earlier date. By 2008, the limitation period had already expired. Further, there is no admission of negligence by JNZ, who no longer acts on the plaintiff’s behalf.
122 Having advised the defendant it acted on the plaintiff’s behalf, JNZ then proceeded with an impairment claim on his behalf, organising medical examinations in 2011.
123 In terms of subparagraph (b), there is the prospect of presumptive prejudice in this case with a delay of over sixteen years between the accident and the plaintiff’s solicitors first advising the defendant of an intention to bring common-law proceedings in March 2017.
124 Presumptive prejudice should be evaluated in the process of synthesis; however, in my view, in the present proposed proceeding, the following matters discount the significance thereof.
125 As was acknowledged by the defendant, the plaintiff was not at fault in the accident and no prejudice arises with respect to the issue of liability or negligence.
126 In any event, the allegations of negligence are relatively simple. The other driver was charged with failing to give way and the police and ambulance attended the scene and their reports are available.
127 The plaintiff’s claim was for medical and like expenses and later, impairment benefits[91] was accepted.
[91]Letter dated 27 May 2016
128 In terms of the medical evidence, Dr Webster, who has treated the plaintiff since before the accident, is able to give evidence, and his clinical notes are available. In those circumstances, he can give evidence as to any pre-existing health issues the plaintiff may have suffered. He also arranged for a neuropsychological assessment by Susan Lloyd in October 2008.
129 Further, Ms Milner, the plaintiff’s psychologist, who has treated him since 2008, is available to give evidence, and her notes and reports are also available.
130 There are also a number of investigations which are relevant to this application, the reports of which are available:
· Thoracic, chest and lumbar x-ray - 30 May 2000
· Chest, cervical spine, thoracic spine and left shoulder x-ray - 11 August 2000
· Cervical spine x-ray, CT scan of the head - 10 November 2004
· Brain CT scan - 18 October 2008.
131 The following medico-legal examinations were arranged by JNZ for the purposes of the plaintiff’s impairment claim:
· Dr Vowels, neuropsychologist, March 20111
· Dr Burton, neuropsychologist, May 2011
· Dr Roberts, neurologist, January 2012
· Mr Kossmann, orthopaedic surgeon, October 2012
· Dr Weissman, psychiatrist, December 2017.
132 Although, in more recent times, the defendant arranged the following medico-legal examinations:
· Mr Kierce, orthopaedic surgeon, September 2015
· Dr Walton, psychiatrist, October 2015
· Professor Doherty, psychiatrist, December 2017 and February 2018.
133 Ryan Legal arranged for the plaintiff to be re-examined by Mr Kossmann in November 2017 and July 2018, and also arranged for him to be examined by Dr Weisman in December 2017.
134 In my view, there can be an acceptably fair trial having regard to these available living witnesses “but particularly viewed through the prism of the particular facts of this case, which are relatively straightforward”.[92]
[92]T210
135 Further, whilst the material is limited, there is evidence as to the plaintiff’s pre and post-injury earnings from a range of jobs and also from his fruit block.
136 Whilst counsel for the plaintiff submitted that the defendant’s failure to refer to a possible common law entitlement was a relevant factor under subparagraph (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 – this ground was not argued to any extent and I do not consider it is of particular relevance in this application.
137 Counsel for the defendant submitted any such argument should be rejected. On the plaintiff’s own evidence, he appears to have been aware of those rights since 2008 and had earlier had some experience pursuing compensation from motor vehicle accidents.
138 In terms of subparagraph (d) - the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action - counsel for the plaintiff relied on significant mental health battle, as confirmed by Ms Milner; however, counsel for the defendant indicated it was not accepted the plaintiff was having any mental health battle as he claimed.
139 There was little argument in relation to subparagraph (e), with counsel for the plaintiff relying on the initial correspondence from Ryan Legal to the defendant of 9 November 2016 and the lodgement of the serious injury application on 2 June 2017.
140 Counsel for the defendant addressed this issue differently, submitting it was somewhat difficult to assess the extent to which the plaintiff acted promptly and reasonably given the uncertainty of his evidence of his dealings with JNZ.
141 The matters raised in subparagraph (f) are pretty much dealt with in terms of the plaintiff’s explanation for the delay, leaving the handling of the matter to his solicitors, JNZ. Counsel for the defendant submitted there were difficulties in understanding and evaluating the plaintiff’s evidence in this regard.
142 Having properly synthesised all the material considerations,[93] in my view, it is just and reasonable to extend the time.[94]
[93][2018] VSC 55
[94][2017] VSC 666
143 There is the ability to have a trial that is acceptably fair, as Forrest J stated in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd.[95] As Dixon J pointed out in Holcombe,[96]this finding, despite the possible implications of presumptive prejudice, is a powerful consideration in the exercise of synthesis of the material considerations.
[95]Supra
[96](Supra) at paragraph [45]
144 Accordingly, leave is granted to extend the period to seek leave.
JUDGMENT
Section 93 application
145 This application was brought pursuant to subparagraphs (a) and (c).[97]
[97]T1
146 The application related to a multiplicity of body functions. Those relied on were the cervical spine, bilateral shoulders, “with a competing hypothesis whether they were independent or radiculopathy from the neck,” the right thumb and bilateral knees. It was submitted the function of the spine, particularly the cervical spine, was the strongest application under subparagraph (a).[98]
[98]T2
147 The enquiry under sub-paragraph (a) of the definition of “serious injury” focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
148 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[99]
[99]See Richards & Anor v Wylie (2000) 1 VR 79
149 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable and more than significant or marked”.
150 The application pursuant to subparagraph (c) involved a Major Depressive Disorder and Post-Traumatic Stress Disorder (“PTSD”). It was submitted that this application was stronger than the application under subparagraph (a).[100]
[100]T7
151 The judgment of the Court of Appeal in Mobilio v Balliotis[101] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[102] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[101][1998] 3 VR 833
[102](1995) 21 MVR 314
152 Winneke P, in Mobilio,[103] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[104]
[103]Mobilio v Balliotis (supra) at 833
[104]see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect
153 The plaintiff swore four affidavits in support of his s93 application.
The Plaintiff’s evidence
154 The plaintiff is sixty-three, having been born in May 1955. He has been in receipt of a Disability Support Pension since February 2010.[105]
[105]T126 - osteoarthritis and psychiatric condition
155 The plaintiff completed Year 11 in Melbourne, leaving school at the age of seventeen. He then went to live with family in Mildura. Initially, he did labouring work on the fruit blocks and then worked in a variety of jobs as a tyre fitter, barman and wool presser.
156 On 17 May 1975, the plaintiff was injured in a transport accident while a pedestrian (“the 1975 accident”). He suffered injury to his back and abdomen and lodged a Motor Accident Board (“MAB”) claim.
157 In addition to the 1975 transport accident, over the years, the plaintiff suffered various other illnesses and injuries, including:[106]
[106]Third affidavit sworn 18 February 2018
·Hitting his head and jarring his neck when he jumped off a forklift and hit a roll cage. He had some physiotherapy after that incident.[107]
·A piece of steel went into his hand and it became infected.
·Burns to his face after a caustic soda spill.
·Hitting his head when working under a juice extractor and jolting his neck.
·Jarring his spine when a chair he was sitting on collapsed.[108]
[107]T22
[108]T103
158 The plaintiff had a number of incidents involving motorbikes, in particular, in 1983, when he hurt his knee, following which he had an arthroscopy [109]
[109]T22
159 Each of those various incidents settled and the plaintiff was able to return to normal and unrestricted work duties.
160 The plaintiff had had migraines before the accident and had treatment in the form of Sandomigran and Imigran, which helped settle them. Post accident, his headaches are different to those migraines. They start in his neck and radiate into the back of his head and are not helped by Imigran.[110]
[110]T11
161 The plaintiff was asked about an x-ray of his chest and thoracic spine taken three months before the accident. He had been getting pain in his chest then. He had no idea why he also had a lumbar spine x-ray at that time or what medication he was taking before the accident.[111] Having been reminded of Dr Webster’s note at that time, the plaintiff recalled that the lumbar x-ray before the accident was for chest pains.[112]
[111]T104
[112]T135
Work history pre accident
162 At some time after the 1975 accident, the plaintiff went back to Melbourne, where he worked in various jobs, including work as barman, fabric cutter, in the boot trade, as a clerical assistant with the Department of Agriculture and a meat inspector.
163 The plaintiff then obtained work with Australia Post, where he was employed for twelve years, during which time he transferred back to Mildura. He finished with that employer in 1995 and received a voluntary departure package.
164 After leaving Australia Post, the plaintiff obtained work with Murrayland Fruit Juice. While in that employ, his wife died of cancer. They then had two young children and it was a difficult time for him. He had to then leave that job because he was on a very early start and it did not fit in with the kids.[113]
[113]T44
165 Thereafter, the plaintiff received a Sole Parent’s Benefit and did part-time work, given his commitment to his children. That work was mostly in horticulture, working in nurseries, undertaking pruning and vine management, and he also worked as a barman.
166 As the boys got older, they were able to go into family day care and the plaintiff obtained work via a labour-hire company at Lindemans’ Southcorp winery (“Lindemans”).
167 As at the said date, the plaintiff was working at Lindemans, running the fruit block and working part time at the Coomealla Memorial Sporting Club as a barman.[114]
[114]T26
168 On 11 August 2000 (“the said date”), the plaintiff was driving to work at Lindemans.[115] In a high speed, high-impact collision, another driver went through a give-way sign and collided with the plaintiff’s vehicle, writing it off (“the accident”).
[115]T21
169 By reason of the accident, the plaintiff suffered multiple injuries, including:
·An injury to his neck. As time went on, he developed headaches and referred pain down his arms.
·An injury to both hands from where he held the steering wheel and, in particular, his right thumb was badly damaged.
·Injury to both shoulders, from which he had ongoing pain and restriction.
·Injury to both knees after they were forced up into the dashboard of the car from underneath.
·A closed-head injury, being unconscious for a period that he thought was about ten minutes or so.
·An injury to his back.
·As time went on he became very depressed and had significant psychological problems.
170 Following the accident, the plaintiff was taken by ambulance to Mildura Base Hospital, where he was kept under observation for a short time.
171 At the time of the accident, Dr Webster had been the plaintiff’s family general practitioner. The plaintiff has continued to see him or other doctors at his clinic since. Subsequent to seeing Dr Webster on the day of the accident, the plaintiff attended him on 14, 17, 21, 25, 28 and 30 August 2000 and 4 September 2000.[116]
[116]Third affidavit
172 The plaintiff has also been referred to various specialists and attended psychologist, Rosalie Milner, since 2008. He did not see anyone until then because he was “trying to tough it out” and deal with it himself. Since starting to see the psychologist he has not been referred to a psychiatrist.[117] He has undergone EMDR treatment. They talk a lot and sometimes he will “dispute the essence of things”.[118] This psychological treatment is being paid for by the defendant under the plaintiff’s son’s accident claim.[119]
[117]T96
[118]T98
[119]Second affidavit
173 At various times after the accident, the plaintiff had physiotherapy.
174 By reason of his accident injuries, and inability to go back to heavy manual work, the plaintiff was not able to continue at Lindemans and he lost the opportunity of transferring from a casual with the hire company to a permanent employee, losing the opportunity to have stable, well-paid and permanent employment.
175 The plaintiff tried to do light duties six to seven weeks after the accident. When he went back to Lindemans, he did very light work, but that did not last too long because they could not find enough for him to do.[120]
[120]T64
176 As the plaintiff could not do physical work by reason of his injuries, he then sought light casual work as a barman at Coomealla Sporting Club, the Edge Hotel, as a union organiser, and undertaking office work. He tried to keep the fruit block but was not able to cope, and the vines and trees fell into disrepair and the block went backwards. He then fell behind with his mortgage payments and eventually the block was sold up by the bank and he ended up bankrupt in about 2004.[121]
[121]The petitioning creditor was Irymple Packaging and the sum involved was $35,000
177 The plaintiff will never be able to get back to any heavy work. When he tried to return to full-time work after the accident, he simply could not cope. He tried to obtain work to accommodate his injuries. He tried a range of jobs. He wanted to be a role model for his children and instil in them a work ethic. He had always had a good work ethic and that had been an important part of who he is.
178 Since the accident, the plaintiff simply had not been able to obtain and retain full-time heavy work. Initially, that was due to his physical injuries, but as time went on, his psychological state also impacted on his ability to function at work. The plaintiff was scared of the future and all he could see was chronic pain and an ongoing battle with the black dog.
179 The plaintiff was cross-examined about his work history and his work on the block before the accident.[122]
[122]T100
180 The plaintiff described a nice little return from the block for one bloke and a couple of young kids growing up.[123] Pretty much he was making $28,000 a year after expenses for the four or five years before the accident from 1996.[124]
[123]T42
[124]T43
181 The plaintiff then said he “did not phrase it good”. The $28,000 also included his earnings off the farm. He was “talking in total”.[125]
[125]T88
182 For the 1997 to 2000 financial years, the plaintiff was too disorganised with paperwork to do the taxation returns. His wife died, and he was totally left with the care of their children, with no other help from family. He initially tried to do his own taxation returns and then it all got beyond him and it all just snowballed.[126]
[126]T84
183 The year after the accident, the plaintiff did not get a crop from the block and had no income.[127]
[127]T129
184 Ultimately the bank foreclosed because the block was not making money.[128] The plaintiff was allowed to stay for a few years on the block before he was kicked off post bankruptcy.[129]
[128]T43
[129]T129
185 Financial records of the block in 1995 showed a total income of $13,533, with expenses of $30,374, leaving a loss of $16,841. The following year, the block income was $13,411, with expenses of $29,747, leaving a loss of $16,336.
186 There were no taxation returns available for the financial years 1997 to 2000.
Financial Year Total Expenses Net Profit Loss 2001 $14,094 $14,094 2002 $18,176 $6,181 2003 $28,772 $17,770 2004 $18,250 $10,685 2005 $18,220 $13,685 2006 $12,047 $12,047 2007 $16,867 $11,162 2008 $9,694 $9,694
Summary of the Plaintiff’s taxable income
Taxation Return
Year ended 30 June
Gross Taxable Income
1999
Centrelink - $8,860
2000
Wages –
$6,678 (Coomealla Memorial Sporting Club)
$3,422 (Atria Group)
Total wages – $10,100
Centrelink – $2,089
2001
Wages –
$6,834 (The Sporting Club)
2002
Wages –
$7,908 (The Sporting Club)
$5,595 (Atria Group)
$2,696 (The Edge Hotel Motel)
$1,610 (Boeill Creek Nursery)
Total wages – $17,809
Centrelink – $5,774
2003
Wages –
$18,213 (United Voice)
$2,408 (Boeill Creek Nursery)
$343 (The Sporting Club)
Total Wages – $20,964
Centrelink – $ 6,711
2004
Wages –
$22,073 (United Voice)
Centrelink – $6,6227
2005
Wages –
$22,193 (United Voice)
$16,000 (Zigouras)
$842 (Salvation Army)
Total wages – $24,632
Centrelink – $6,991
2006
Wages –
$24,525 (United Voice)
$460 (Tristate Pilots)
$139 (Salvation Army)
Total Wages – $25,124
Centrelink – $6,393
2007
Wages –
$10,150 (Andrew Jones)
$7,823 (Dudley Marrows)
$16,063 (Oasis Aged Care)
Total wages – $19,140
Centrelink – $2,266
2008
Wages –
$2,179 (Andrew Jones)
Centrelink – $8,613
2009
Wages –
$12,045 (Cosimo and Roma Dimasi)
$1,018 (Rainbow Vineyards)
$105 (Reyne Management)
Total wages – $2,368
Centrelink – $11, 2096
2010
Centrelink – $13,793
2011
Wages –
$4,510 (Zigouras)
Centrelink – $17,640
2012
Wages –
$15,620 (Zigouras)
Centrelink – $16,948
2013
Wages –
$21,650 (Zigouras)
Centrelink – $15,424
2014
Wages –
$7,373 (Zigouras)
Centrelink – $18,753
2015
Wages –
$1,000 (Zigouras)
Centrelink – $19,016
2016
Wages –
$6,240 (Zigouras)
Centrelink – $21,082
187 When it was suggested to the plaintiff that he had earned considerable amounts after the accident, he had said all along he had tried to do things he could cope with. When they reached the point they were beyond him, he quit and moved on, and tried something else.[130]
[130]T74
188 In his job at Boeill Nursery in 2002, the plaintiff drove a tractor[131] and propagated seeds into seedlings.[132] There would have been some mild or limited lifting involved.[133]
[131]T87
[132]T71
[133]T72
189 The plaintiff worked as a union organiser from about 2003. It was a paid role working two days a week for the Australian Liquor, Hospitality and Miscellaneous Workers Union (United Voice), earning in the range of $20,000 plus. He was physically unwell at that time, and taking pain relief, and having a little bit of physiotherapy.[134]
[134]T38
190 When he joined the United Voice, it gave the plaintiff a chance to deal with bullies and take out his stress in dealing with them.[135] He had to do some work after the accident. He was offered the job by the Secretary of Trades Hall and he did it.[136] He was trying to provide for his children, and in some jobs he was popping painkillers to get him through the day. He wanted to get money so his children could do things, but he would get to a point where he could not cope and that was part of the reason why he left United Voice.[137]
[135]T74
[136]T102
[137]T75
191 The work for Andrew Jones in 2007 was just around the packing shed.[138] The plaintiff would have done some lifting, but only what he could manage. That year, he also did some picking for Dudley Marrows.[139]
[138]T75
[139]T76
192 The plaintiff always declared his earnings to Centrelink.[140]
[140]T75
193 The plaintiff started working with JNZ in 2011, and over time his hours increased.[141] He worked there until 2016 doing computer and filing, and 2013, he was involved in reorganising the office, archiving old files and destroying them, thus his highest earnings of $21,650 in that that year. From 2014 to 2016, he earned less than $10,000.[142]
[141]T30
[142]T77
194 Since leaving JNZ, the plaintiff has done a bit of recycling.[143] He moved into his current property at Brian Crescent in about 2012. A photograph of that property in 2017 showed the front yard full of items which he bought with help from his son.[144] He was helped in his recycling work by his son and a friend.[145]
[143]T77
[144]T78
[145]T79
195 Photographs of the plaintiff’s recent residential properties before and after he had moved in showed piles of rubbish and old vehicles in the front yard of both properties after he had been there for some time.
196 Doing the best he could, the plaintiff thought he would have had to have earned over $1,000 from recycling in the last financial year, but not tens of thousands.[146] He sees recycling more as a hobby to fill in time. He has been doing it on and off since he was about twenty.[147] It is not a job, just something that keeps him occupied and from “going off [his] trolley”.[148]
[146]T80
[147]T81
[148]T82
197 The plaintiff would be “pretty well stuffed” with any job involving over-shoulder-height work. There is also the “mood side of it”, and he has more and more trouble dealing with people.[149]
[149]T82
198 The plaintiff denied he was pretty busy for a bloke who had such bad injuries. It was all work that he could do within his limitations. He would try, and sometimes not go back, because he could not cope. The union job was sitting on his backside talking to people. Bar work was all light duties.[150] Jobs were seasonal, at different times of the year.[151]
[150]T90
[151]T91
Pain and restrictions
199 Since the accident, the plaintiff has battled with chronic pain and restriction. He had suffered ongoing neck pain, which varied between a dull ache to quite sharp pain. He had ongoing headaches, which started in the back of his neck and progressively radiated into his head. He suffered referred pain down his arm, and had pins and needles in his little and ring fingers.
200 The plaintiff had continued to have ongoing pain and restriction in both shoulders, and his lower back continued to ache. He suffered right leg pain. His right thumb continued to be painful and he had restricted strength in his right hand. Both knees continued to ache from time to time, and physical activity increased his knee pain, and kneeling was a problem.
201 The plaintiff had had major problems with depression. Initially, he tried to deal with this himself. He had had periods where he had been suicidal and where he had not had the capacity to make decisions. He had been despondent and lacking in motivation, and continued to have significant battles with depression.
202 As of mid-2017, Dr Webster was prescribing Norspan patches and Panadeine Forte for pain and Zoloft for depression. The plaintiff was having counselling every three weeks, funded by the defendant.
203 The plaintiff woke three or four times at night. He tried tablets, but they made him feel dopey and he did not like feeling out of it. Most of the time, he was woken by neck pain. He had bad dreams and he thought about both the accident and the circumstances of his son’s death in a car accident.
204 Once awake, the plaintiff ruminated how good his life had been before the accident bringing up his boys and how it had unravelled since. Often, at night, he reflected upon why he should keep going, given his ongoing pain.
205 The plaintiff suffered from extreme mood swings and predominantly was in black places. He did have some times when he had highs. Since the accident, his mental health had been very poor. He had difficulty letting go of the accident’s impact on him. He had been battling so hard to bring up his boys on the block and provide for them financially, and the impact of his injuries had been devastating financially.
206 The plaintiff tried to be a good father to his boys, but the impact of his injuries had changed that and he was no longer able to provide for them financially, even though he did the best he could, his life fell apart.
207 The plaintiff’s relationship with friends had strained over the years. He had some good friends who understood the issues and challenges he faced and he was thankful for their tolerance, but he had lost a lot of friends and colleagues because of his mood. When his pain was bad, he was not good to be around. He found it hard to be tolerant and hold the peace. Prior to the accident, he was very social, but because of his injuries that had changed.
208 At the time of the accident, the plaintiff’s life revolved around his boys, his work and the block. The boys were involved in sport. The plaintiff tried to keep that going – for example junior football on Sundays – however, his capacity to undertake such activities had diminished.
209 The plaintiff’s passion had been horticulture, with the propagation of plants, the fascination to him. His work at Lindemans and on his block was stimulating. He did not see it as work. His inability to do physical work meant that all that had been lost to him.
210 Both the plaintiff’s pain and his mood impacted on his social life. He used to be actively involved in the ALP, the local Trades and Labour Council and when he had the block, the Victorian Farmers Federation. He was also a committee member of the Cardross Football Club and Irymple Junior Football Club. All of that was now beyond him.
211 Over more recent years, the plaintiff had tried to do volunteer work, such as at the Salvation Army, but no longer had the patience and capacity for this, and even volunteer work was beyond him.
212 The plaintiff’s home was not well maintained and he physically struggled to do heavy jobs around the house. He lacked motivation and the house was a disaster. At the time of the accident, the home was clean and well kept, and the plaintiff provided a good environment for his boys.
213 The plaintiff continues to suffer chronic neck pain, with an ache at the base of his neck radiating into both shoulders, worse on the right side. The neck pain continues to be very sharp from time to time.[152]
[152]Second affidavit sworn 28 January 2018
214 The plaintiff continues to suffer from referred pain down his arms and pins and needles in his little and ring fingers. These go numb and the problem seems to be getting worse. He continues to suffer headaches of varying degree. The worst is his neck, his headaches. Sometimes he can suffer a headache for most of the day which he believes is linked to his neck injury.
215 The plaintiff continues to have a lot of pain and restriction in his shoulders, with the right being worse.
216 Since the MRI scan,[153] the plaintiff believes the pain he has in his biceps is related to his shoulder injuries. He has been told, by reason of the trauma of the accident and the failure to treat his shoulders over the years, he may have to undergo surgery at some time in the future. In addition to the ongoing ache in his shoulders, he has difficulty lifting. While he can hold a vertical weight, he has difficulty in reaching out and lifting things from the horizontal.
Defendant’s medico-legal evidence
Mr Paul Kierce, orthopaedic surgeon
356 The plaintiff was examined by Mr Kierce in September 2015.
357 On examination, the plaintiff complained of intermittent and varying neck pain. His shoulders could worry him with lifting. His right thumb got sore with any pruning of plants. He had intermittent lower back pain aggravated by sitting and he needed to get up frequently. There was pain in the right ankle.
358 In general terms, the plaintiff indicated, on diagrams, that he suffered with neck pain, lower back pain, pain at the base of his right thumb, with some pain on the front of his right ankle, and some numbness and pins and needles on the front of his right thigh.
359 Mr Kierce concluded from the documents which he had been provided, the major problem faced by the plaintiff over the years had been mental health issues. He had been suffering a Chronic Pain Syndrome, for which he had been prescribed narcotic opioids in the form of Norspan patches, which were prescribed some time ago, and Mr Kierce was sure the plaintiff was addicted to that medication.
360 Mr Kierce commented that it was very difficult, so long after the accident, to assess its role in the plaintiff’s present physical condition. He considered the plaintiff may have sustained soft tissue injuries to his cervical and thoracolumbar spine in the accident, but he had been in a further accident of a similar nature in 2004. Overall, it was Mr Kierce’s opinion the plaintiff was demonstrating constitutional degenerative changes in his spine, which have little relevance to the accident.
361 In Mr Kierce’s opinion, any injuries sustained to the plaintiff’s spine in the accident had resolved long ago and his current symptoms were related to the ageing process.
Dr Lester Walton, psychiatrist
362 Dr Walton examined the plaintiff in September 2015.
363 The plaintiff told Dr Walton, after the accident, he was suffering from fairly widespread pain. He continued to suffer from pain affecting his neck and shoulders, with associated headache. There was also pain affecting his right hand and lower back and his right thigh felt numb most of the time.
364 Dr Walton noted the plaintiff had a history of transport accidents before and after the subject accident. He had a motorbike accident in 1986 with neck pain and persisting headaches. Around 2006, he had a minor, “fender-bender”, aggravating his neck.
365 Following the death of his wife in 1995 from complications of cancer, the plaintiff underwent grief counselling. He thought he was coping quite well psychologically immediately prior to the accident.
366 Dr Walton noted ongoing psychological counselling from Ms Milner and a prescription of antidepressant and sleeping medication.
367 Dr Walton noted the plaintiff had suffered from recurring suicidal thoughts and he remained depressed most of the time. He complained of forgetfulness.
368 The plaintiff told Dr Walton he was not able to work in the aftermath of the accident, and the upshot was he lost his block and his job at Lindemans. They were major losses for him and he also saw the loss of the farm, particularly, as relevant to his younger son going off the rails and he was killed at the age of twenty-three in a car accident two years ago.
369 Dr Walton diagnosed PTSD and Major Depressive Disorder. It appeared the plaintiff proceeded through a reasonably normal period of bereavement following the death of his wife. The PTSD was a direct consequence of the accident, but the depression, which is partly a direct response from the accident and partly a reaction to the accident-induced pain, had further been complicated by the death of his son and loss of his farm, which the plaintiff certainly saw as connected indirectly with the accident, in particular, his loss of earning capacity.
370 In Dr Walton’s view, the subsequent transport accident in 2006 seems to have produced a minor aggravation in neck pain, but no adverse psychiatric consequences. He noted the plaintiff had undergone repeated neuropsychological testing which had revealed relatively minor cognitive deficits substantially secondary to mood disturbance rather than brain injury.
371 Dr Walton then thought the prognosis was favourable, in the sense the plaintiff was not suffering from a massively disabling psychiatric syndrome, but was following a chronic course with symptoms likely to persist indefinitely. He thought the plaintiff remained totally and permanently incapacitated for work.
Associate Professor Peter Doherty, consultant psychiatrist
372 Professor Doherty examined the plaintiff in September 2017. He provided a supplementary report in February 2018.
373 On examination, Professor Doherty noted there were mild symptoms of anxiety, mood and pain, with the predominant symptom being pain. Diagnostically, he thought there was no pain related to psychiatric condition present.
374 Professor Doherty gave consideration as to the presence of a Major Depressive Disorder, but thought that one was not present. When examined, the affect in quality was not depressed.
375 Professor Doherty thought there were elements of adjustment present after the accident. There had been psychologically stressful events that required adjusting to. There was mood, anxiety, cognitive and pain symptoms, and there was a reduction in functioning due to those symptoms. There had been use of antidepressant medication immediately after the accident, and then after more psychologically deleterious events, the recommencement of psychological treatment seven years after the accident.
376 In Professor Doherty’s view, mild persistent adjustment issues had continued over the years, underpinned, initially, by the pre-accident issues of the death of the plaintiff’s wife in 1996, the bringing up of two children, taking on a block, and leasing other acreage, and having two paid employment positions when the accident occurred. Then, after it, there were many psychologically deleterious events that caused adjustment issues, pain issues and the plaintiff’s sense of being unfairly and unfortunately treated and dealt with.
377 Professor Doherty thought the plaintiff was not significantly psychiatrically unwell; however, a diagnosis of an Adjustment Disorder could be made. There were no significant features of traumatisation and no PTSD condition could be entertained.
378 Professor Doherty thought the individual prognosis was guarded. There were mild persistent symptoms, but the plaintiff’s social situation was fragile, with a narrow social and personal network, and reduced opportunities to engage in self-esteem-building activities and feeling worthwhile.
379 Professor Doherty thought the plaintiff’s psychiatric condition was mild in severity. It was present and persisted. There had been no change in treatment for years and the social and clinical situation was stable, without significant change expected in the future. He considered the psychiatric condition had a favourable prognosis, so the individual outcome should be considered guarded. The condition did not make a significant interference in the ability to work. The plaintiff said his pain was the limiting factor and the cause for the cessation of employment after the accident. His farming activities were limited by his pain symptoms. After the accident, there had been periods of part-time hours work on and off over the years.
380 In Professor Doherty’s opinion, the clinical symptoms immediately after the accident and more so when first attending a psychologist in 2008, would not have been so clinically significant that an incapacity for work resulted.
381 Further, Professor Doherty thought the mild symptoms of anxiety, mood, nervousness and concentration changes interfere with domestic and leisure activities in a mild and not too significant manner. He thought the plaintiff was eccentric and that that eccentricity was not caused by, or related to, the accident. There was no significant direct psychiatric impairment. Symptoms of traumatisation had never been significant and, at most, there was a very small miniscule amount of psychiatric impairment related to the accident. He thought nearly all the psychiatric impairment was secondary to the physical injuries in the accident or unrelated psychological and physical causes.
382 Professor Doherty provided a supplementary report in February 2018, having been provided with further information, including Dr Webster’s 2018 report and progress notes from the Ontario Medical Centre starting in April 1993, Ms Milner’s notes, screen shots of the plaintiff’s property, pre-accident x-rays and the MRI scan of various body parts in October 2017.
383 The supplied material did not change his views, as expressed in his earlier report, where he diagnosed a Mild Adjustment Disorder. He confirmed his view all psychiatric impairment currently present is unrelated, or pre-existing, or secondary to any physical injury. He noted the clinical notes of Ms Milner emphasised the psychologically deleterious effect the death of the plaintiff’s son in November 2013 had on the plaintiff’s mental health. In fact, it had been the focus of sessions for years after his death. It was also evident the plaintiff hoarded items and other material, and he may be involved in recycling. He confirmed his view there is no pain-related psychiatric condition present and no diagnosable PTSD.
Overview
384 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[154]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[154](2010) 31 VR 1 at paragraph [12]
385 It was not said on the defendant’s behalf that there were “overwhelmingly knockout blows about credit”;[155] however, it was submitted the claimed income of $28,000 was an embellishment, and the plaintiff should know it is an “absolute fabrication, and tried to resile from it.”[156]
[155]T165
[156]T166
386 In response, counsel for the plaintiff submitted the plaintiff was very candid. A creditworthy passage was when he talked about popping painkillers just to get through the day to provide for his children after the accident.[157] Further, he did disclose his earnings with scrap metal to Centrelink.[158]
[157]T75, T177
[158]T177
387 As I indicated during the hearing,[159] I did not really think it was a credit case. Whilst at times the plaintiff was non-responsive to questions, or appeared to “have a story”, as various examiners noted, this was part of his personality rather than an attempt to mislead or avoid answering questions.[160]
[159]See paragraph 107 of my Judgment
[160]T166
Applications pursuant to subparagraph (a)
388 Whilst there was significant cross-examination about the plaintiff’s pre-injury health and his involvement in a number of accidents, I indicated to counsel for the plaintiff I was not overly focusing on the plaintiff’s pre-existing back condition and suggested my difficulty was attributing what, if any, of the plaintiff’s present complaints to the accident.[161]
[161]T176
389 I indicated I accepted the plaintiff was functioning at a pretty good level at the time of the accident. Whatever had happened previously was not affecting his ability to do physical work.[162]
[162]T177
390 Counsel for the plaintiff submitted the plaintiff had suffered a number of significant consequences as a result of his accident injuries, confirmed by the affidavits of his son and his friend, Fabrizio Gallarde.[163]
[163]T184
391 It was submitted that Ms Milner and Dr Webster who have seen the plaintiff long term, as opposed to for medico-legal purposes, tend to be pretty supportive of him. As Dr Webster concluded:
“It would be fair to say that Robert’s life has been complex in many ways with significant life stressors. However, the impact on his capacity to function in life and work has been seriously and permanently impacted by the accident of 11 August 2000. He has not been able to work, which as meant the loss of income and ultimately his property.”
392 Further, Dr Webster confirmed the plaintiff had ongoing chronic pain, low mood, managed with medication and supportive therapy, seeing him at least monthly.[164]
[164]T182
Treatment
393 Reliance was placed on the doses of painkilling medication that had been significant. The plaintiff presently uses Norspan patches and previously used other types of patches.
394 Painkillers have been continuously prescribed by Dr Webster, who was described as a “careful clinician.”[165]
[165]T178
395 Counsel for the plaintiff relied on the comments of Dodds- Streeton JA in Kelso v Tatiara Meat Company Pty Ltd[166]-
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[166](2007) 17 VR 592 at para 199
Work
396 It was submitted the plaintiff did have a proper consistent work history prior to the accident. He did bring in four successful harvest after his wife’s death in 1996. Whilst there were no tax return filed in those years, there was no reason to disbelieve his evidence in this regard.[167]
[167]T180
397 It was submitted it should be accepted the plaintiff had a diminution in his physical capacities after the accident, as he reported. It was submitted it was open to the Court to take the view the accident had knocked him around.[168] He was unable to bring in the harvest the year after the accident, as the spreadsheet confirmed, and had ongoing problems in this regard thereafter.[169]
[168]T181
[169]T181, T180
398 In response, counsel for the defendant submitted the plaintiff was absent from work for six or seven weeks after the accident at best, and he went back to one of the jobs a couple of weeks after the accident according to Dr Webster.
399 The plaintiff worked on the block until at least 2007 as the spreadsheet indicated. He was driving tractors and the like. He worked at a nursery post incident, lifting and doing a variety of things. He worked on a friend’s fruit block. He worked in a hotel as a waiter, and worked behind the bar in some hotels. This was all after the accident. He went back to the winery in 2002, and he has operated the scrap-metal business, which he said he had been doing all his life. He was working in the union, and was filing and doing work at JN Zigouras.[170]
[170]T163
400 In 2013, the plaintiff had a better year than normal in terms of income.[171]
[171]T164
Causation
401 Whilst I was addressed as to the alleged consequences of the plaintiff’s accident injuries, the first issue for determination in this application is that of causation. Can the plaintiff establish that any claimed consequences as at the date of the hearing relate to injuries suffered by him in the accident?
402 As counsel for the defendant submitted, it was not enough just to say the plaintiff’s current condition as shown on the 2017 MRI was a “shocking picture” as counsel for the plaintiff described.[172] Whilst it was submitted on the plaintiff’s behalf that the MRI findings might look pretty significant, counsel for the defendant pointed out no one links them to the accident.[173]
[172]T152
[173]T153
403 Counsel for the defendant asked, how can it be seriously contended in a case with this lifespan that the accident is responsible for the findings that are in the MRI scans seventeen years later? It was submitted it cannot be seriously contended, because it is not supported by one of the three physical doctors in this case. Neither Mr Kossman, Dr Webster or Mr Kierce make a causal connection. In fact, it was submitted the reverse was true.[174]
[174]T153
404 Counsel for the defendant went through the medical evidence in this regard in some detail. It was noted, strangely enough, on the first examination in 2012, Mr Kossmann thought the plaintiff’s injuries were not stable and that further investigations in the form of an MRI scan were needed.[175]
[175]T154
405 There was then the second examination at the end of 2017. Nowhere in his report does Mr Kossmann say the various physical conditions are related to, or referable to, the accident. In fact, it was submitted the opposite could be inferred by his comment “in the background of significant degenerative changes”. Nowhere does he say the plaintiff’s various physical complaints are accident related.[176]
[176]T156
406 Mr Kossmann then commented that the prognosis is guarded in respect of all the body parts that he is dealing with. He does not seem to change his mind when he sees Dr Webster’s reports, although he seems to have had difficulty reading his notes.[177]
[177]T156
407 Nowhere in his second report does Mr Kossmann say the injuries relate to the accident, and it was submitted, of course he cannot. As an experienced orthopaedic surgeon, he knows exactly what is going on, and if he had a view about attribution or causation he would certainly express it.[178]
[178]T157
408 Reliance was placed on five motor accidents that the plaintiff had been involved in since 1995.[179] With so many insults to the spine, that was the very reason people like Mr Kossmann could not make attribution.[180]
[179]T161
[180]T162
409 In those circumstances, it was submitted there was no way possible the Court could accept the submission that what was revealed in the 27 October MRI relates to the accident.
410 Counsel for the defendant then analysed Dr Webster’s February 2018 report.
411 It was submitted Dr Webster also did not address causation of any of the MRI findings or make any attribution to the accident, which was a particularly significant omission in the plaintiff’s case, whether it was cervical spine or shoulders or whatever physical impairment.[181]
[181]T161
412 There was a problem for the plaintiff in this case where there was a past history of back involvement in car accidents, and when the plaintiff fell off a chair, and entries in 1998, and then also the 2000 x‑ray. It was submitted the plaintiff then had seventeen years of activity and insult to his degenerative spine, his pre-existing degenerative spine and shoulders. His doctors do not and cannot make the relevant attribution.[182]
[182]T162
413 The defendant also relied on Mr Kierce’s opinion which it was submitted completely backs up the inability of the two other doctors to make any meaningful diagnosis.[183]
[183]T165
414 Further, overall, it was Mr Kierce’s opinion the plaintiff was demonstrating constitutional degenerative changes in his spine, which have little relevance to the accident. He thought Any accident injuries had resolved long ago and the plaintiff’s current symptoms were related to the ageing process.
415 Further, documentation in support of the plaintiff’s present disability pension covered a number of conditions including osteoarthritis, depression, hypertension and a stomach disorder.[184]
[184]T164
416 Counsel for the plaintiff conceded that Dr Webster and Mr Kossmann do not unequivocally express an opinion about causation and that pose a problem for the plaintiff. Counsel accepted Mr Kossmann’s passages were really somewhat of a narrative and conceded-
“Doing the best we can all we can, do is rely upon those two reports and they speak for themselves and we can’t – I can’t put a gloss or a spin on it, it’s not there to be put.”[185]
[185]T176
417 Counsel for the plaintiff conceded in these circumstances, aggregation was necessary as the medical material does not divide the various consequences – the shoulders are dealt with “in globo”[186] and it was submitted there were a “bundle of authorities” that supported the proposition that the two shoulders could be aggregated if they arise out of the one incident.[187]
[186]T178
[187]T178
418 I was not addressed on this issue and counsel for the plaintiff later provided a folder of authorities on this point. I did indicate during the hearing, however, I was unaware any support for the type of aggregation suggested with the authorities only allowing aggregation arising in circumstances where there was a work process injury.
419 Having read the authorities that were later provided, none supported the submission made by counsel for the plaintiff and all related to work process injuries at work where the Court held the affected body function was manual dexterity. In those circumstances, I am not satisfied it is permissible to aggregate the plaintiff’s shoulder injuries in this case.
420 Taking into account all the available evidence, I am not satisfied that there is any accident-related physical impairment which, as at the date of hearing, is “serious”. This finding relates to the spine, which it was submitted was the major impairment, and the range of other claimed impairments.
421 Accordingly, the applications pursuant to subparagraph (a) are dismissed.
Psychiatric impairment
422 With respect to the psychiatric injury, counsel for the plaintiff relied on the opinion of Ms Milner, the plaintiff’s treating psychologist, who linked his ongoing psychiatric problems to the accident, diagnosing PTSD and Major Depression.[188]
[188]T179
423 It was submitted the criticisms of Ms Milner’s view by counsel for the defendant were “a little unfair”.[189] It was submitted she believed the plaintiff about the effects of the accident on his life and counsel for the defendant did not.[190] It was submitted it was entirely proper to recite the findings of the radiology because that must impact upon the plaintiff’s mental presentation.[191]
[189]T179
[190]T179
[191]T179
424 The plaintiff continues to require Zoloft, first prescribed in August 2000, very soon after the accident. He keeps going, “soldiers on, goes bankrupt and what really tips him over the edge” is losing the block in 2007-2008, and then his “very responsible general practitioner” sends him to Ms Milner, who has continued to see her ever since.[192]
[192]T181
425 It was submitted it was not entirely accurate that Dr Weissman was unable to disentangle the various causative factors[193] and that any inability to disentangle was in relation to job capacity.[194]
[193]T182
[194]T183
426 There was also reliance on Dr Walton who, it was submitted, was perhaps understandably abandoned by counsel for the defendant.[195] Dr Walton saw the plaintiff in October 2015. He then found the PTSD was a direct consequence of the accident, but the depression, which was partly a direct response to the accident, was partly a reaction to the accident-induced pain, and had been further complicated by the death of the plaintiff’s son.[196]
[195]T183
[196]T183
427 Reliance was placed on Dr Walton’s impairment assessment, the primary diagnosis of PTSD, and his comments that the plaintiff was relatively resilient and the impairment was permanent.[197]
[197]T184
428 Counsel for the defendant submitted any accident-related psychiatric impairment was not severe. There had been no referral to a specialist psychiatrist. There was only a psychologist referral eight years after the accident which it was submitted was precipitated by the plaintiff’s bankruptcy and losing his property. Further, there were so many other factors and stresses which both Dr Weissman and Professor Doherty recognised as being significantly in play in this case: the multiple accidents, the death of family members.[198]
[198]T167
429 Counsel for the defendant relied on the views of both medico-legal examiners who found the accident made only a small contribution to the plaintiff’s psychiatrist condition.[199] Recently, Dr Weissman thought the need for any psychiatric treatment related only in part to the accident.
[199]T168
430 It was submitted that it was also an issue of prejudice and to the proper running of a damages trial, that an experienced psychiatrist like Dr Weissman, who is well versed in this Court, could not disentangle psychiatric issues because of the effluxion of time.[200] I pointed out it might be a problem the plaintiff has proving his case, rather than an issue of prejudice.[201]
[200]T169
[201]T170
431 It was submitted, the difficulty relying on Dr Weissman was he did not give any scope to have the motor accident implicated because of the other factors being so prominent.[202] Professor Doherty also suggested it is hard to disentangle precisely what insult caused what problem.[203]
[202]T185
[203]T162
432 Counsel for the defendant submitted there is not a “severe” impairment with 160 visits to a psychologist, Zoloft only, no referral to a psychiatrist or a psychiatric hospital, no suicidal attempts, and very little therapy. It was submitted also that Ms Milner was an advocate for the plaintiff and her opinion should be considered in that light.[204]
[204]T171
433 Taking into account the lack of psychiatric treatment and specialist referral and the medico-legal opinions attributing only a small amount of the plaintiff’s present psychiatric condition to the accident, I am not satisfied any accident-related psychiatric consequences are “severe” as at the date of hearing.
434 Accordingly, the application pursuant to subparagraph (c) is also dismissed.
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