Lynch v Transport Accident Commission (Ruling)
[2024] VCC 971
•4 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-03241
| THERESE MARY LYNCH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February and 21 March 2024 | |
DATE OF RULING: | 4 July 2024 | |
CASE MAY BE CITED AS: | Lynch v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 971 | |
RULING
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Subject:PRACTICE AND PROCEDURE – LIMITATION OF ACTIONS
Catchwords: Application for leave to extend time under section 23A of the Limitation of Actions Act 1958 – Application opposed – Applicable principles
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:Griffiths v Nillumbik Shire Council [2022] VSCA 212; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Axford v Gray [2013] VSC 664; Moore v Goldhagen [2024] VSCA 25
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Ms E J Anderson | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr C J Blanden KC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
Table of Contents
Background
The hearing
Statutory framework and applicable principles
Overview of the respective cases
The evidence
The Plaintiff’s case
Exhibit B – Plaintiff’s affidavit in support of current application dated 28 November 2023
Cross-Examination
Re-Examination
Exhibits tendered on behalf of the Plaintiff
Exhibit E – Affidavit of Pey-Chiann Hor, solicitor acting on behalf of the Plaintiff, dated 8 August 2023
Exhibit D – Further Affidavit of Pey-Chiann Hor dated 28 November 2023
Other evidence tendered by the Plaintiff
Exhibit F – Ambulance Case Sheets
Exhibit G – Collision Report number 42002030324
Exhibit H – undated images of Toyota Camry, registration number PFB 420
Exhibit J – Affidavit of Katherine Ross dated 27 February 2024
Exhibit N – Report of Dr David Weissman, medico-legal psychiatrist, dated 9 May 2022
Exhibit P – Victoria State Emergency Service Road Accident Operation Report dated 12 November 2001
Other exhibits
Exhibit A – Chronology prepared by the Plaintiff’s representatives detailing dates of communications between the Plaintiff and the TAC
The Defendant’s case
Exhibit 1 – Affidavit of Christopher Inness dated 23 January 2024
Exhibit 2 – Report of Dr Erin Redmond dated 4 February 2022
Exhibit 3 – Report of Dr Leon Turnbull dated 23 October 2022
The parties’ submissions
The Plaintiff’s submissions
The Defendant’s submissions
Analysis
The Plaintiff’s credibility
(a) Whether the Plaintiff received legal advice about the applicable time limits
Letter to the Plaintiff dated 1 October 2004
Letter to the Plaintiff dated 7 September 2007
Telephone call between the Plaintiff and Ms Sue Broadley of the TAC on 18 March 2010
Instructions given to solicitors at Maurice Blackburn Lawyers
(b) Inconsistent versions about the circumstances of the collision
First account – claim for compensation
Second account – history given to Mr Rush
Third account – file note made by Plaintiff’s solicitor dated 9 July 2021
Fourth account – serious injury application and supporting affidavit
Fifth account – history given to Dr David Weissman – report dated 9 May 2022
Seventh account – Amended Statement of Claim dated 8 August 2023
(c) The reasons why the Plaintiff failed to take action to press her rights
(d) Inconsistent versions about the length of the waiver
(e) Unsatisfactory answers when cross-examined
Should the discretion be exercised in favour of the Plaintiff?
Section 23A(3)(a) – length and reason for the delay
Section 23A(3)(b) – likely extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
Section 23A(3)(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
Section 23A(3)(d) – duration of any disability of the Plaintiff
Section 23A(3)(e) – the extent to which the Plaintiff acted promptly and reasonably once she knew that Mr Keating’s acts or omissions might be capable at that time of giving rise to an action for damages
Section 23A(3)(f) – steps, if any, taken by the Plaintiff to obtain medical and other expert advice, and the nature of any such advice received
Conclusion and Orders
Annexure
Chronology
HER HONOUR:
Background
1On 6 October 2001, the plaintiff was celebrating her 33rd birthday at the Panton Hill Hotel with her friend, Mr Dale Keating. Shortly after midnight, the pair decided to leave. Having consumed a considerable amount of alcohol, the plaintiff felt that she was unable to drive safely. The plaintiff handed her car keys to Mr Keating, who agreed to drive her home.
2According to one version given by the plaintiff, on the way home, after midnight, while travelling along Kangaroo Ground-St Andrews Road, St Andrews in dark, wet and foggy conditions, an oncoming vehicle driving on the wrong side of the road came towards them with high beam headlights on, causing Mr Keating to take evasive action. He swerved to avoid a collision, thereby losing control of the vehicle. The vehicle hit a tree on the left side of the road, before swerving off to the right side and going down an embankment, where the vehicle hit another tree (“the collision”). The plaintiff was trapped inside the wreck, where she remained until removed by members of the State Emergency Services.
3There is some dispute about whether the plaintiff was the driver or the passenger of the vehicle, but I need make no finding about that for the purposes of this Ruling.
4After being freed from the vehicle, the plaintiff was taken by ambulance to the Austin Hospital. There, the plaintiff was found to have suffered grossly displaced comminuted fractures of her left femur, as well as lacerations to the left hand and calf, and back pain. She was in hospital for eight days, where she underwent two surgeries on her leg for an open reduction and internal fixation. The plaintiff was then transferred to the Victorian Rehabilitation Centre in Glen Waverley for inpatient rehabilitation, where she remained for three weeks. She then continued in outpatient rehabilitation for a further twelve months.
5The plaintiff required two further surgeries, one to replace the existing rod with a larger nail and screws, and then another surgery to remove the rod and screws after the femur fractures had healed.
6The plaintiff alleges that following her surgeries, her recovery was slow, painful, and frustrating. She alleges that during this period, she was raising four children on her own. The plaintiff claims that following the fourth surgery, she continued to suffer from debilitating pain in her left leg and lower back.
7The plaintiff underwent physiotherapy and received medial branch blocks at the L2, L3, L4, and L5 levels from a pain specialist. The plaintiff also trialled a spinal cord stimulator; however, she found it to be ineffective in reducing her pain.
8The plaintiff also sought psychological treatment as she was struggling to cope emotionally after the collision.
9The plaintiff complains of ongoing pain as a result of her injuries and that her capacity for work has been compromised.
10On 15 October 2001, the same day as her discharge from hospital, the plaintiff lodged a claim for compensation, which was accepted by the Transport Accident Commission (“TAC”). In her Claim Form, the plaintiff described the circumstances of the collision as follows:
“Driving up road, myself as passenger and a car drove straight at us lights on high beam. Dale swe[r]ved to miss them and banged into side road and went down the embankment.”[1]
[1]Exhibit 1, affidavit of Christopher Inness dated 23 January 2024, annexure CI 1
11It was not until approximately July 2002 that the plaintiff first engaged lawyers to act on her behalf. The plaintiff engaged a series of lawyers, as I shall later describe.
12Just prior to the expiration of the statutory time period within which to bring common law proceedings, the plaintiff’s solicitor successfully applied to the TAC for a waiver and an extension of time within which to bring such proceedings. The extension of time was apparently made in accordance with the terms of a TAC policy covering such applications.
13From approximately June 2008, the plaintiff communicated directly with the TAC over a period of time. She did not apply for a serious injury certificate until 23 March 2022. Her application was successful. The plaintiff did not, however, issue common law proceedings within the statutory time period.
14The plaintiff now applies under s23A of the Limitation of Actions Act 1958 (“the Act”) to extend the time within which she may issue proceedings against the defendant to recover damages for injuries she claims to have sustained in the collision. The application is opposed.
The hearing
15The hearing commenced before me on 29 February 2024 and continued on 21 March 2024.
16Mr A D B Ingram KC appeared with Ms E J Anderson on behalf of the plaintiff.
17Mr C J Blanden KC appeared with Mr S Pinkstone on behalf of the TAC.
18The only witness who gave viva voce evidence was the plaintiff. Otherwise, the evidence consisted of a number of exhibits tendered by each of the parties.
Statutory framework and applicable principles
19The parties agree that under s5(1)(a) of the Act, the plaintiff had six years within which to commence common law proceedings in respect of the injuries she claims to have sustained in the collision.
20Section 23A of the Act provides:
“23A Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action 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.
(4)The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding—
(a)that—
(i)in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii)in any other case more than 6 years has expired since the cause of action accrued; or
(b)that an action in respect of such personal injuries has been commenced.
(5)An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
(6)Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.”
21The relevant principles are summarised in Griffiths v Nillumbik Shire Council:[2]
“[68]The principles that apply to an application of this type are uncontroversial and can primarily be derived from the decisions of the High Court in Brisbane South and more recently in Prince Alfred College:[3]
(1)The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended. It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;[4]
(2)The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;[5]
(3)The relevant delay commences from the time of the accrual of the cause of action;[6]
(4)Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) 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;[7]
(5)In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;[8]
(6)The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.”[9]
[2][2022] VSCA 212 at paragraph [68]
[3]258 CLR 134, 164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ)
[4]Prince Alfred College (2016) 258 CLR 134,164-5 [99] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544 (Dawson J), 547 (Toohey and Gummow JJ), 551, 553–554 (McHugh J), 567, 573 (Kirby J)
[5]Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ); Brisbane South (1996) 186 CLR 541, 544, 549–550 (Toohey and Gummow JJ), 556 (Kirby J)
[6]Delai v Western District Health Service [2009] VSC 151, [22]; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Limited v Scardamaglia [1996] 1 VR 7
[7]Brisbane South (1996) 186 CLR 541, 544 (Dawson J)
[8]Brisbane South (1996) 186 CLR 541, 551 (McHugh J); Prince Alfred College (2016) 258 CLR 134, 165 [100] (French CJ, Keifel, Bell, Gageler, Keane and Nettle JJ)
[9]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA) (‘Tsiadis’). See also Bell v SPC[1988] VR 123, 125–126
22In Prince Alfred College Inc v ADC,[10] the High Court explained the principles underlying the factors relevant to the exercise of discretion as they applied to similar provisions in South Australian legislation:
“The exercise of the discretion
[99] In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court’s decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. 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. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
‘The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.’
[100] 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. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, 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. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.”[11]
[10](2016) 258 CLR 134
[11]Ibid at 164-165, paragraphs [99]-[100], footnotes omitted
23In Griffiths v Nillumbik Shire Council,[12] the Court of Appeal also referred to the underlying purposes of the limitation period:
“[64]The statements of principle of the High Court in Brisbane South Regional Health Authority v Taylor remain the yardstick. Provisions such as s 5(1)(a) represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion. Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over.
[65] As McHugh J stated:
‘A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.’
[66] To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”[13]
[12]Supra
[13]Ibid at paragraphs [64]-[65], footnotes omitted
Overview of the respective cases
24The plaintiff alleges that she sought legal advice and that a solicitor acting on her behalf obtained an open-ended waiver, and extension of time within which to bring common law proceedings, thus enabling the plaintiff to issue proceedings on 16 August 2022, almost twenty-one years after the collision, and almost fifteen years after the waiver and extension of time were granted.
25The plaintiff asserts that a clear case of negligence on the part of Mr Keating (since deceased) can be established, and that no significant prejudice will be suffered by the defendant should leave be granted.
26The defendant denies that the waiver as granted was open-ended. Rather, the defendant asserts that the plaintiff was granted a waiver extending time for a mere six months, in accordance with TAC policy.
27The defendant contends that the plaintiff is not a credible witness and that her evidence to the effect that she believed that she could bring her application at any time of her choosing ought be rejected.
28The defendant also disputes that negligence on the part of Mr Keating can be established, if indeed he was the driver. Relying on the plaintiff’s own description of the collision, the defendant contends that there is no evidence that the action that Mr Keating took to avoid a head-on collision fell short of the standard of care required of a reasonably prudent driver in his position and in the prevailing circumstances. Moreover, the defendant asserts that should leave be granted, the defendant will suffer incurable prejudice, because Mr Keating died on 24 January 2009, over seven years after the collision.
The evidence
The Plaintiff’s case
Exhibit B – Plaintiff’s affidavit in support of current application dated 28 November 2023
29In 2002, a friend of the plaintiff suggested to the plaintiff that she obtain legal advice, and recommended Moores Legal (“Moores”). The plaintiff then attended the offices of Moores in Box Hill in July 2002.
30Following the meeting, the plaintiff received a letter dated 22 July 2002 from Ms Narelle Mollet, a solicitor who worked part-time at Moores. This letter confirmed that the firm would act on the plaintiff’s behalf, and provided information about various TAC benefits and claims that the plaintiff may be able to make, including a common law claim. The letter did not refer to any time limit within which a common law claim could be brought. The plaintiff deposed that she does not recall being advised of any such time limit by Moores. The plaintiff does not recall attending the offices of Moores after this initial appointment. Instead she received letters regarding the status of her TAC funding.
31In 2004, the plaintiff received correspondence from Moores requesting her to attend medico-legal appointments, which she did. The plaintiff noted that she was confused about what was happening with her TAC claim and claimed to have telephoned Moores “many times” but was not able to speak to a lawyer, which she found “frustrating”. The plaintiff did not understand “what, if anything, the firm was doing for [her]”, and, accordingly, she decided to seek alternative representation.[14]
[14]Exhibit B, paragraphs 13-14
32In April 2005, the plaintiff attended an appointment with Mr Greg Lay, a solicitor at Balfe & Webb, at their Moorabbin office. The plaintiff deposed that Mr Lay agreed to act on her behalf in relation to the claim. She does not recall Mr Lay advising her of the time limit to bring a common law claim.[15]
[15]Exhibit B, paragraph 15-16
33According to the plaintiff, when Mr Lay attempted to obtain her file from Moores, they advised that they would not release the file until the outstanding account was paid. This led to a dispute that lasted for over two years. Eventually the plaintiff made a complaint to the Legal Services Commissioner. The plaintiff received correspondence from the Legal Services Commissioner dated 1 November 2007, advising her of their decision to not take disciplinary action against Moores. This decision was made because in the course of the investigation, it was discovered that Moores had not complied with their Cost Disclosure obligations. Moores then forwarded the file to Balfe & Webb and confirmed that it no longer sought payment of the costs.
34The plaintiff referred to a telephone conversation with Mr Lay in or around September 2007, during which she learnt that he had finally received the file from Moores. It was around this time that Mr Lay advised the plaintiff of the time limit within which to bring a common law claim, being six years from the date of the collision, and that this would expire on 7 October 2007. According to the plaintiff:
“… Mr Lay told me not to worry about this, as the TAC had agreed to extend the time limit in my case because of the delays I had faced in having my file transferred.”[16]
[16]Exhibit B, paragraph 24
35I note that the plaintiff here referred to being granted an extension of time, not an open-ended waiver.
36The plaintiff states that she was “recently” shown a copy of a letter that Balfe & Webb received from Carlo Cresci, serious injury manager at the TAC, dated 10 October 2007. Omitting formal parts, the letter reads:
“10 October 2007
…
Dear Practitioners
Claim number: 01/01574
Regarding: Miss Therese Lynch
Transport accident on: 7 October 2001
Your reference: G Lay/CM
I refer to your letter dated 2 October 2007.
I confirm that the waiver policy will apply in this matter.
Should you wish to discuss any matter relating to your client’s common law claim, please phone me on (XX) XXXX XXXX.
Yours faithfully
Carlo Cresci
Serious Injury Manager
Impairment & Serious Injury Group
Transport Accident Commission.”[17]
[17]Exhibit B, annexure TL3
37In December 2007 and May 2008, the plaintiff received impairment benefits from the TAC. The plaintiff deposed that she did not hear from Balfe & Webb after receiving these payments and that she does not recall terminating her retainer with the firm. The plaintiff stated that she was “confused and disappointed” and “gave up on finding lawyers that could help [her]”. The plaintiff deposed that she “understood that [her] claim with the TAC was ongoing” and that she decided to represent herself. Accordingly, she remained in regular contact with the TAC about her medical expenses over the next thirteen years. The plaintiff also noted that she did not hear anything from the TAC about her entitlements to lump sum payments or common law damages, which she felt was “unfair”.[18]
[18]Exhibit B, paragraphs 29 and 34
38The plaintiff deposed that she telephoned the TAC on 31 May 2021 to follow up on a request for funding of orthotics. During this phone call, the claims officer advised her that she had an active common law claim with the TAC, and the relevant team would call her back with an update. A copy of the file note of this conversation, created by Zac Hoogendoorn of the TAC, was annexed to the plaintiff’s affidavit. The file note states:
“… can see active common law case CA adv would request common law team contact for update client further expressed disastifaction, blamed Jeff Kennett, and wanted to know why this case was stillactive CA adv would have common law case handler call back to discuss client circled issue of why the case was not resolved, CA adv I can only request they call back, I do not have the answers.”[19]
(sic)
[19]Exhibit B, annexure TL6
39The plaintiff deposed that she called the TAC on 8 June 2021 to follow up on the status of the common law claim. During the conversation, the plaintiff confirmed that she was not represented by a solicitor. The plaintiff was advised that a member of the common law team would call her back.[20]
[20]The file note is reproduced as annexure TL7 to Exhibit B
40On 24 June 2021, the plaintiff spoke to Mr Jason Williams of the TAC via telephone, telling him that she did not think it was fair that she had not received any common law compensation. The plaintiff deposed that Mr Williams told her to contact Maurice Blackburn Lawyers. Mr Williams’ file note records:
“Therese returned my call. I had a long conversation with her. I explained I had called as I understood she had questions about common law. Therese seemed quite emotional, and tangential at times. I mentioned she had lawyers in 2008 for the impairment process, and she just said they were useless and did nothing. She mentioned working at Woolworths, but had always struggled with pain, nightmares from the accident. I explained the 23A issues and advised if she wanted to pursue I thoroughly recommended she seek legal advice from a Pl or TAC specialist lawyer. She needed to move quickly on it She then said she knew someone Darren? who got a huge payout for less injuries. She didn’t think it was fair. She felt she had always been walked all over her whole life and her boss always tells her that. I again suggested she seek legal advice on how to proceed. The conversation went around and around She said lawyers will just take a chuck of any payout and that was not fair. I explained the Protocols etc. I ended up giving her my name (she wrote it down) and all details and asked her to find a TAC lawyer, give them my name and ask them to call me. I advised I would then talk them through the background and issues and they could advise her how to proceed. She ended up thanking me for the call. She was a lovely lady, but I felt had some significant mental health issues.”[21]
[21]Exhibit B, annexure TL8
41The plaintiff deposed that she contacted her current solicitors, Maurice Blackburn Lawyers, on 24 June 2021 and met with Ms Alice Tan and Ms Katherine (Kate) Ross at the Ringwood office on 9 July 2021. Ms Tan and Ms Ross were formally instructed on 13 July 2021 to pursue a common law claim for damages.
Cross-Examination
42When cross-examined by Mr Blanden, the plaintiff confirmed that she knew that the common law claim was separate from the other claims that she could apply for from the TAC, such as medical expenses, loss of earnings and lump sum payments. She also confirmed that from as early as 2002, the time when she saw a solicitor at Moores, she knew that the common law claim required her to prove negligence.
43The plaintiff confirmed that in a telephone call from her solicitor, Mr Lay, in or around September 2007, she received legal advice that there was a statutory time limit within which to bring a common law claim.[22] The plaintiff also confirmed that she understood that if the waiver had not been granted by the TAC, then time would have expired on 7 October 2007.[23]
[22] Transcript (“T”) 28
[23]T29
44The plaintiff repeated on numerous occasions that Mr Lay had told her that he had “sorted” the time limit problem out, and she “had nothing to worry about”.[24] The plaintiff testified that she assumed that there was no end date on the waiver letter of 10 October 2007, because Mr Lay told her that she had “nothing to worry about”.[25] The plaintiff, however, then conceded that Mr Lay never actually showed her the “waiver letter” and she only saw it for the first time when her current solicitors showed it to her.[26] Significantly, the plaintiff further conceded that she and Mr Lay never discussed the length of the waiver, and she never asked.[27]
[24]T30
[25]Similar responses are found in the cross-examination at T30, T31, T33, T34, T35, T37, T40, T59 and T62
[26]T32-35
[27]T30-31
45The plaintiff admitted that she “knew she had to do something” to bring her common law claim, and that she understood that the waiver “wouldn’t go on forever”[28]:
[28]T34
MR BLANDEN:
Q:“You understood the reason why … [Mr Lay] sought a waiver and got a waiver from the TAC was because if he failed to get a waiver, time ran out on 7 October 2007?---
MS LYNCH:
A:Yes, that is true and correct, if the time would have run out by that date that you specified.
Q:All right. And do you recall a discussion with Mr Lay as to why it was he’d sought the waiver, and can I suggest to you it would have gone along these lines, he would have said, ‘listen we’ve only got until 7 October 2007 to issue the claim, I’ll get onto the TAC and see what I can do.’ And what he does is he gets the waiver?---
A:Well, I don’t recall a conversation as in what you’ve said, but I do recall a conversation with Doctor - not Doctor - with Greg [Lay] about him allowing me to have a waiver with the TAC, he sorted that problem out for me and I had nothing to worry about - about the time limit.
Q:Right. But you knew you still had to do something, didn’t you?---
A:Yes, of course I knew I had to do something.
Q:Because your common law claim wasn’t going to suddenly spring into action without you actually doing something?---
A:No, it wouldn’t do anything unless I did something about it, so that’s why I engaged Greg and he got the waiver for me, and I’m in that situation that I’m at - and that’s why I’m in the situation I am at the moment, no resolution has come as of such - - -
Q:So, did you ask him how long the waiver was for?---
A:There was no discussion about the length of the waiver that just he discussed with me that he was able to retain a waiver in relation to my case.
Q:I understand that that’s what you say he told you, but what I’m asking you is, did you ask him how long the waiver was, how long have we got now?---
A:No, I did not go into that conversation about the length of the waiver, because he - he talked to me and said he had a waiver, it’s all sorted I have nothing to worry about. So, that’s why I - - -
Q:So, your evidence is he didn’t tell you how long the waiver was?---
A:No, the waiver was an unended wa - and there was no date on the waiver from my understanding.
Q:And you say you never asked him how long the waiver was?---
A:No, I didn’t ask him about the waiver, but to me a waiver would have a date on it, and there was no date on the waiver so that’s why I assumed it was an unended waiver.
Q:Well, why did you assume that?---
A:I had no other evidence to show me anything differently to - just my conversation with Greg indicating that he had obtained a waiver and to not worry about it.
Q:So, you knew this was an important point, didn’t you?---
A:Of course I knew it was an important point, but I was being guided by my lawyer Greg which indicated the waiver had been granted and there was no need for me to furthermore worry about what’s going on.
Q:But what I’m asking you is, you knew that without the waiver, you had 6 years to bring an action, and then if you hadn’t brought it, you weren’t then allowed to bring an action, that’s what you knew, correct?---
A:I may have known it, but I may have put it to the back of my mind that the 6 year waiver, I was having law people sort it out for me.
Q:So, what I’m suggesting to you is - - -?---
A:Yes.
Q:- - - you know that the whole reason that a waiver is necessary is because the law says you’ve got 6 years within which to bring your action, correct?---
A:Correct.
Q:Right. And because it’s very close to the end of that 6 years, in September 2007 when you’re having this discussion with Mr Lay, that’s why the waiver needs to be sought and obtained because you haven’t got much time, and he needs more time to get your common law claim going, correct?---
A:Well, I never had a discussion for - about particulars of what you said, there was a delay because of me trying to get my file from Moores Services, that was some d[el]ay, but Greg just told me I had a waiver and everything was sorted, that’s my answer.
Q:So did you think that the waiver would go forever?---
A:I was - of course the waiver wouldn’t go forever, but I was not - I was not assured of a date on the waiver because there was not one on the letter given to my - given to the lawyer about the waiver.”[29]
[29]T29-32
46When asked by Mr Blanden whether the plaintiff thought that the waiver meant she could wait another fifteen years before issuing proceedings, the plaintiff responded “No”.[30]
[30]T35
47Despite conceding that she well knew that the waiver would not last forever, the plaintiff later stated that she thought she could wait twenty years to bring proceedings if she wanted to, as “the waiver didn’t have an end date on it”.[31]
[31]T40
48The plaintiff agreed that by May 2008, she was aware that nothing had been done to initiate her common law claim. She was unable to explain why she did not ask Mr Lay about the status of her claim:
MR BLANDEN:
Q:“So what I’m asking you, Ms Lynch, is we know that you’ve told [h]er Honour that your impression was you’d got a waiver in relation to issuing the common law claim. But why aren’t, six months later, you asking your solicitor, well, what are you doing about the common law claim? I’ve now got the impairment benefits so that’s good, but what about my common law claim? Why didn’t you ask him about it?---
MS LYNCH:
A:Because I didn’t ask him about it.
Q:But why not? Why? Give us a reason?---
A:Because I did not ask him about it. That’s why. There’s no reason to give to that. I just assumed I had a waiver, and there was no urgency or hurry.
Q:Well, rather than there being no urgency or a hurry, you say at paragraph 29 [of exhibit B], you were confused and disappointed, and you gave up on finding lawyers?---
A: And that too, and I hadn’t had any more correspondence from my lawyer, so I gave up and carried on regardless, and continued to have correspondence with TAC through numerous conversations, which my lawyer has given to you.
Q:So if you get no correspondence, why aren’t you ringing them up and saying, what’s going on?---
A: Because I didn’t do that. I just - - -
Q:But why didn’t you do it?---
A:Because I didn’t. I just had this waiver. I just had that waiver that was hanging there, waiting for me to follow through with it.
Q:Well, what were you waiting for?---
A:I wasn’t waiting for anything. As I said, I had a waiver, which gave me a time. There was no time on it. I didn’t furthermore follow up with it.
Q:Yes, but why didn’t you do anything about it? What are you waiting for? It’s seven years, almost, since the accident has happened, by now, and you’re just sitting there, saying, I’ve got a waiver, but so what if you’ve got a waiver? Why aren’t you actually progressing your claim? Why aren’t you asking a solicitor, who you say is not sending you any correspondence, what on earth are you doing?---
A: I wasn’t having any contact with the lawyer, so I was unaware there was any urgency on the waiver. I had my life. I was – my life I was living. I didn’t think there was any urgency or hurry, as Greg [Lay] did not indicate to me there was any urgency or any hurry about my common law claim. He just told me I had a waiver, and in my assumption, that seemed that I was given no time limit.
Q:So according to your affidavit – and I gather, from what you’re saying now, when Balfe & Webb stopped sending you letters, which I assume is sometime in late 2008 or early 2009, you did nothing. You didn’t contact them, you didn’t ask them what was going on, what about my common law claim? Why aren’t you doing something about that? You just did nothing. Is that what you’re telling us?---
A: I just didn’t do nothing. I just knew I had a waiver, so I didn’t do anything - - -
Q:Forget about the waiver - - -?---
A:--- and Greg wasn’t – Greg wasn’t contacting me about following up on my common law claim.
Q: Well, why weren’t you contacting him? That’s my question?---
A: I have no answer to that.
Q: You see, in the past, when you were unhappy with Moores - - -?---
A:Yep.
Q: --- you went to the extent of making a complaint to the Legal Services Commissioner, to deal with them, to get the file and give it to Mr Lay, so why are you just giving up at this point? Why are you not even asking a question of Mr Lay as to what’s going on?---
A: I didn’t ask him the question.
Q:I know you didn’t, but why didn’t you?---
A: I’m not sure as to why I didn’t ask him the question. I was actually finding it all very – a lot to take in. I just suffered a bad injury from a car accident, as a passenger. I’m trying to get through all the legal things. Greg didn’t indicate to me once about the urgency of the common law claim.
Q: But you knew that you had to do something about the common law claim sooner rather than later, didn’t you?---
A: Well, Greg had told me, I have a waiver, and you don’t have to worry. So from his answer, I assumed there was no hurry in the world.
Q: Well, what does ‘no hurry’ mean, though? How long does that mean that you think you’ve got?---
A: I wasn’t – I was under the assumption I had a time limit – there was no time limit. I could just – when I was prepared to go and claim, I was able to do it.
Q:So you could wait 20 years if you wanted to?---
A:Yes. That’s correct. The waiver didn’t have an end date on it. So that’s why I had no assumption of the urgency to claim within this period.”[32]
[32]T37-40
49The plaintiff agreed that she was in regular contact with the TAC regarding payment of her medical and like expenses in the years leading up to 2021. There was, however, no discussion about her common law claim. The plaintiff was asked whether she had forgotten about the claim:
MR BLANDEN:
Q: “Now, over the years that followed, as you say, you were in regular contact with the TAC. But the things that you were in regular contact with the TAC about were payments for your treatment, medication, referral to doctors and other treatment providers and all those sorts of things. Correct?---
A:Correct
Q: Right. Nothing to do with a common law claim?---
A:Nothing to do with a common law claim
Q:No. You never mentioned ‘common law claim’ to them at all until 2021?---
A: I didn’t mention them until 2021. It was the actual – the TAC officer that reminded me that I have a common law claim.
Q:And so you had, can I suggest, completely forgotten about your common law claim, by the time you get to 2021?---
A:I hadn’t forgotten about it, I’d just put it at the back of my mind.
Q:Well, you’d done nothing about it at all, for years, by that point, had you?---
A:I hadn’t done anything, no, because I had a waiver, which Greg told me there was no urgency or hurry in relation to it. And I put it at the back of my mind, the common law claim. And it was only when the TAC officer reminded me about it, that’s when I thought, I should act on it.
Q:Ms Lynch, by the time you were reminded about it in 2021, it was 13 years or thereabouts since you had last spoken to a solicitor. Correct?---
A:True and correct.
Q:And even then, when you spoke to a solicitor, you weren’t speaking to him about your common law action, you were speaking to him about impairment benefits, correct?---
A:Yes, about my impairment benefits and there was probably no discussion about the common law claim other than the waiver being granted.”
50The plaintiff testified that she became unhappy with Mr Lay because he had stopped communicating with her about her various TAC claims, and, accordingly, she made a telephone call to the TAC on 18 March 2010 to tell them not to provide Mr Lay with any information. The plaintiff explained that she had done this because she “didn’t trust him as a lawyer anymore”.[33] The plaintiff then stated that she “didn’t press the common law claim because [she] didn’t want Mr Lay to represent … [her] anymore”.[34]
[33]T43
[34]T44
51The plaintiff stated that she was “disillusioned” by lawyers and decided to represent herself against the TAC. She admitted, however, that her dealings with the TAC were only in relation to her medical and like expenses, and had nothing to do with her common law claim.[35] The plaintiff also admitted that she knew she needed a lawyer to pursue the common law claim, although she did not engage another lawyer. When asked why she did not engage another lawyer, the plaintiff said that she was under the assumption there was no urgency in relation to her common law claim on account of the waiver:
MR BLANDEN:
Q:“Wouldn’t the sensible thing to have been to go and get another lawyer and ask them, when do I have to do this common law - if you really thought you could just wait for as long as you wanted, wouldn’t the sensible thing to have done to go and get another solicitor and say, I think I’ve got this common law claim, my last solicitor didn’t do anything, what about it?---
A:No.
Q:Why didn’t you do that?---
A:No, I didn’t do that.
Q:I know you didn’t, but why didn’t you?---
A:Because I didn’t do it, I was disillusioned with lawyers and I was under the assumption I had a waiver, there was no hurry or urgency. Greg had even indicated that.”[36]
[35]T45
[36]T45-46
52The plaintiff agreed that she had also brought proceedings in relation to a separate claim arising from alleged workplace bullying. When asked why she did not ask those lawyers about her entitlements in relation to the collision, or why she did not instruct them to follow up on the common law claim, the plaintiff responded: because “it was a separate incident”.[37]
[37]T50
53The plaintiff claimed that because Mr Lay had told her that she “had nothing to worry about”, she believed that “nothing urgently had to be addressed”[38] and that she was able to commence the proceedings when she was ready. The plaintiff was unable to explain why she was not ready to bring proceedings back in 2010, when she knew that Mr Lay was no longer acting on her behalf:
[38]T34
MR BLANDEN:
Q:“All right. I want to suggest to you, you made a conscious decision not to pursue your common law claim, in the period between 2008 and early 2010, somewhere in there you said ‘I’m not doing this common law stuff, I don’t trust Mr Lay, that’s it, park it’?---
A:No, I didn’t say park it I’m not gonna do it, I just understood I had a waiver and I put it on - away until I was ready to proceed.
Q:Well, why weren’t you ready to proceed?---
A:I wasn’t ready to proceed, so that’s why I didn’t continue.
HER HONOUR:
Q:Why, you’re being asked why you weren’t ready, what was stopping you?---
MS LYNCH:
A:I was under the assumption I had a waiver, there was no urgency to the situation.
MR BLANDEN:
Q:By early 2010 you’re getting on for 10 years after the accident, Ms Lynch. Most accidents, most claims for accidents, you knew this because you knew there was six years to do it normally, most claims are over and done with by then. Why are you saying you’re not ready, almost 10 years after the fact?---
MS LYNCH:
A:I have no answer to that question.”[39]
[39]T46
54Mr Blanden referred to the history that the plaintiff gave to Dr David Weissman, consultant psychiatrist, in May 2022[40] and suggested that the implication arising therefrom is that the plaintiff made a conscious decision to not pursue her claim for a period of time:
MR BLANDEN:
Q:“… [Dr Weissman] also says this: ‘At the beginning of the interview today I asked the claimant why her case is still active, even though the accident occurred 20 years ago. She explained to me that up until now she had [‘]put up with[’] her physical and emotional symptoms whilst she was raising her four children. However, her four children are now adults and have left home.’ Is that the reason why you gave him for not doing anything about your common law claim?---
A:Probably at the time, that was probably what I told him.
Q:So I want to suggest to you again, it was a conscious decision on your part not to pursue your common law claim, and that conscious decision was made some time between 18 May 2008 and March 2010?---
A:No, it wasn’t a conscious decision to not pursue my common law claim.”[41]
[40]The report prepared by Dr Weissman dated 9 May 2022 was tendered as exhibit N.
[41]T48
55The plaintiff denied that the only reason she sought new solicitors was because the TAC had suggested she do so. She claimed that she engaged Maurice Blackburn Lawyers because she felt it was then the right time to pursue her claim:
Q:“… at no stage until July 2021 did you take any step in relation to engaging further solicitors or other solicitors?---
A:Between then and then, no. And I was advised by the TAC officer Jason that I needed to have a lawyer to help represent me with my common law claim because it was on the book still.
Q:Indeed the only reason you sought other solicitors to act for you, is because the TAC told you that you needed solicitors to act for you, correct?---
A:No, not correct.
Q:Well why else did you go and engage Maurice Blackburn at the time, in 2021?---
A:Because I didn’t feel (indistinct) about myself up against a big organisation like TAC, so I thought maybe I needed a lawyer to help me get - navigate through this process.
Q:The reason you felt that was because you’d been told that by TAC. That you should have a lawyer acting for you?---
A:Being told and what you do is a separate thing, they advised that I needed to get a lawyer.
Q:So, you say that them advising you that you needed to have a lawyer really was coincidental, it didn’t have much to do with it?---
A:It had nothing to do with it.
Q:Right. So, if that had nothing to do with it, why then for the first time in 13 years, in the middle of 2021, did you decide to go and engage a lawyer, not having done so over the proceeding 13 years?---
A:I was disillusioned and I didn’t have a lawyer. I was - had - a waiver from TAC, and I had just put it on hold, and I waited for the right time to proceed further.
Q:Why was that the right time?---
A:Because it seemed that was an appropriate - right time to deal with my situation.
Q:But why was that an appropriately right time, as opposed to any time in the preceding 13 years?---
A:Because I chose that that was the time that I thought was appropriate to follow my claim, because I had a waiver from the TAC back in 2007 whenever it was granted.
…
Q: What I’m putting to you is that you chose not to engage lawyers in the 13 years leading up to you deciding to engage lawyers in the middle of 2021?---
A:Yes, that’s true and correct, I decided I was disillusioned with the lawyers that I had previously engaged, so I just decided not to engage with any lawyers until 2021.
MR BLANDEN:
Thank you, Your Honour.
HER HONOUR:
Q:Why did you pick Maurice Blackburn?---
MS LYNCH:
A:Why did I pick Maurice and Blackburn?
Q:Yes?---
A:I picked Maurice and Blackburn because Jason, the officer from TAC has said you need to ring Maurice and Blackburn and get them to help you with your law case, that’s why I picked Maurice and Blackburn.
Q:So, then Mr Blanden is right, the reason you saw not only the lawyers, but that particular firm of lawyers was on the advice of the TAC?---
A:No, it wasn’t on the advice of the TAC.
Q:(Indistinct)?---
A:He has said to me, you need to get a lawyer and he gave me a few suggestions, Maurice and Blackburn, Shine Lawyers and all that, I just picked Maurice and Blackburn.”[42]
[42]T55-57
Re-Examination
56When re-examined by Mr Ingram, the plaintiff again confirmed that she had assumed the common law claim was ongoing because she had the waiver, which had no end date.[43] The plaintiff also confirmed that she was in constant contact with the TAC during the period between ceasing contact with Mr Lay and engaging Maurice Blackburn Lawyers regarding “medical things that … [she] might request”.[44] The plaintiff also said that no one from the TAC had discussed her common law claim with her before it was mentioned by the claims officer in May 2021.[45] The plaintiff also stated that she was “pretty sure” she had already met with Maurice Blackburn Lawyers before she had engaged Zaparas Lawyers for her WorkCover Claim.
[43]T58; T62
[44]T62
[45]T59
57Given the plaintiff’s inconsistent answers about the extent of the waiver, I sought to clarify with the plaintiff which of her versions I should accept:
HER HONOUR:
Q:“When asked by Mr Blanden, he asked you whether there was any discussion about the length of the waiver, that was with Mr Lay, and you said ‘I assumed it was an unended waiver’. And then he asked you questions, you didn’t think that it would last forever, and you said ‘Of course the waiver would not go forever’. That’s what you said when asked questions by Mr Blanden. But now you say that the waiver meant there was no time limit on bringing the common law claim, so I’m just not sure which version I should accept?---
MS LYNCH:
A:Well - - -
Q:Should I accept that you knew of course the waiver would not go forever, or - - -?---
A:The second comment, please. I knew the waiver wouldn’t go forever, but it’s more to what the comment I said, I didn’t - there was (indistinct) - - -
Q:There’s a bit of both, is it?---
A:Yeah, it’s a bit of both, combine both answers.”[46]
[46]T63
Exhibits tendered on behalf of the Plaintiff
Exhibit E – Affidavit of Pey-Chiann Hor, solicitor acting on behalf of the Plaintiff, dated 8 August 2023
58This affidavit was affirmed to accompany the plaintiff’s earlier application to change the defendant named in the Writ and Statement of Claim from Dale Keating to the TAC on account of Mr Keating’s passing in 2009.
59Ms Hor deposed that the plaintiff first attended the offices of Maurice Blackburn Lawyers regarding the 2001 collision on 9 and 13 July 2021.
60The file note made by the solicitors documenting the instructions provided by the plaintiff at her consultation on 9 July 2021 are annexed to Exhibit E. The file note relevantly reads:
TAC INITIAL INSTRUCTION SHEET – matter 5621413[47]
[47]Exhibit E, annexure 2.3.3
Date 9/07/2021 Operator Alice Tan with Kate Ross … Name Therese Lynch … Prior legal advice? No never had any previous advice about a TAC claim. Spent time in court over dispute with husband – family law.
Spoke with Jason William (TAC) – told her to get legal advice - ask the solicitor to call him. Alice advised she can call him after this call.
Referral source SDA Member DOA/Time 6 or 7 October 2001
Claim number 01/01574
SLE 5 October 2007 Location Panton Hill Accident Circs T was the passenger in a vehicle on 6 or 7/10/2001. Was at the pub at Panton Hill, she had had too much to drink so she let someone drive her car home. She did not know them that well. It was just the two of them in the car.
Unsure if the driver had been drinking. Does not remember if she asked them to driver (sic) her home or if the person volunteered.
The weather conditions were rainy and foggy, the road was extremely slippery. The driver of the vehicle lost control of the vehicle and the car flipped, trapping T inside the car for 4 hours until the Jaws of Life arrived. There was no other car involved.
- T does not remember the name of the road, but states that she was going towards Panton Hill
- T does not remember any other details of the accident (e.g. speed, who called emergency services)
Ambulance arrived. Taken to Austin Hospital. Had 4 surgeries and one involved the insertion of a metal rod in her L leg. She had a broken L femur in 2 places. She also have (sic) peripheral implant into her back. Also, has scarring on left leg – it is like an indent in the leg. Has other little scars as well. Was in the Austin for 6 or 7 weeks.
Rehab in Glen Waverl[e]y for 8 months.
Then did physio at TAC - they would pick her up and go get physio and rehab and then she would go back home.
Saw a psychologist as well. Saw a few – does not have details. TAC paid for this.
Potential D Other driver – though not sure who this is. Witnesses Police attend? Ambulance attend? Yes Injuries Back and leg injury still bother her. … ADVICE …
Any reason why she didn’t get advice earlier?
- Was going to court with her ex-husband. She has solicitor for some of these dealings.
- Did not know of time limits
- Mentally and physically unwell following accident
- Father died
If TAC approved medical and like expenses what would you like now?
- She would choose to have physio or pain relief. Has a rejected physio claim though (not sure how old this is)
Entitled to Medical and like. If they don’t approve something you have 12 months to dispute this decision. We would have to get a copy of TAC record to know what decisions have been made. Have to get legal advice to challenge this decision.
If they have rejected something in the past and 12 months has expired then there is not much we can do about that.
… Common Law • I advised that this is a larger lump sum compensation for p&s and/ or LOEC.
• Need to prove:
SI; and
Negligence
• SLE: 6 years
Under the law, ordinarily a person has 6 years to lodge application to court. We would have to lodge application to extend date stating that there has been a reasonable delay – stating that she was unwell physically and psychologically and did not see lawyer after accidentAlso father died after the accident, dispute with partner.
Could will make this decision.
We would need to act on this pretty quickly.
She will need to come into Ringwood office so that she can sign some documents and get things rolling as she now has sought legal advice. The court will not look favourably on any further delay.
…
(sic)
61Ms Hor also deposed that Maurice Blackburn Lawyers contacted Mr Williams of the TAC by email on 9 July 2021 to advise that they had been consulted by the plaintiff.
62By reply email, Mr Williams advised that the statute of limitations had expired, however, a waiver was granted in accordance with the TAC’s Common Law Time Limit Waiver Policy. Mr Williams’ email, annexed to Ms Hor’s affidavit, also states that the TAC will not claim any additional prejudice from 9 July 2021 should the matter need to be determined by a court.
63Ms Hor also deposed that the TAC granted a Serious Injury Certificate on 13 May 2022, however, the TAC denied any liability for the collision and refused to resolve the claim through its Common Law Protocols.
Exhibit D – Further Affidavit of Pey-Chiann Hor dated 28 November 2023
64Ms Hor noted that Maurice Blackburn Lawyers was officially engaged during the second appointment with the plaintiff on 13 July 2021. Ms Hor also deposed that the plaintiff was notified of her potential entitlements to lump sum payments and common law damages during her initial appointment on 9 July 2021.
65The plaintiff was further advised, by way of a letter dated 15 July 2021,[48] that the limitation period had expired, and she may need to make an application for an extension of time if the TAC pressed the statute of limitations defence. Ms Hor deposed, however, that the plaintiff was also advised that the TAC had granted a waiver with no end date around 10 October 2007.
Other evidence tendered by the Plaintiff
[48]Exhibit E, annexure 2.3.6
Exhibit F – Ambulance Case Sheets
66The Ambulance Case Sheets prepared by the paramedics who attended the scene of the collision were tendered as Exhibit F. These documents record that Ms Lynch was the front left passenger of the car, which “… apparently left the road at speed and collided l[eft] side into trees and down an embankment. Car then came to stop precariously against a tree.” They also record injuries to the left side of Ms Lynch’s body, most notably her left leg. The Case Sheets also note the presence of “intoxicated persons on scene”, although it is not specified who was intoxicated.
Exhibit G – Collision Report number 42002030324
67The Collision Report was tendered as Exhibit G. The document is reproduced in poor quality, making it difficult to decipher, however, it appears that it contains a sketch of the path that the plaintiff’s car took immediately prior to the collision. There is a brief description of the circumstances of the collision:
“(illegible scil: plaintiff’s vehicle) trav around bend lost control down embankment + hit 2x trees”.[49]
(sic)
[49]Exhibit G, page 2
Exhibit H – undated images of Toyota Camry, registration number PFB 420
68The images show damage to the plaintiff’s car, the most significant of which is found squarely with the front passenger door. As I understand it, the plaintiff submits that the damage to the left side of the vehicle is consistent with the plaintiff’s left-sided physical injuries, making it more likely that she was the front passenger, as claimed.
Exhibit J – Affidavit of Katherine Ross dated 27 February 2024
69A third affidavit sworn by a solicitor of Maurice Blackburn Lawyers, Katherine Ross, was tendered as Exhibit J. This brief affidavit confirms that the police member who attended the collision is still an active member of Victoria Police. Ms Ross believes he would be available to give evidence.
Exhibit N – Report of Dr David Weissman, medico-legal psychiatrist, dated 9 May 2022
70Dr Weissman set out the history of the collision as provided to him by the plaintiff:
“3.1 Description of Accident
The subject transport accident occurred on 7 October 2001, more than 20 years ago.
The accident occurred on the day after her 33rd birthday. She is now aged 53.
...
I asked her what happened in the accident. The claimant told me that she ‘went to the pub’. She told me that she went to the Panton Hill Hotel which is ‘up the hills’ past Greensborough.
She said ‘We were drinking. We were having a good time. We were going to go to another pub.’ She told me that she actually left her bag at the Panton Hill Hotel.
She told me that a man named Dale was driving her car, a white Toyota Camry vehicle.
She told me that she did not really know Dale at all. She told me that she was at a pub where he worked. She said ‘I didn’t really know him from a bar of soap’. She told me that he was not injured in the accident.
I asked her what happened. She told me that the car hit the side of the road (on the left). She told me that she hit the left side of her head on the inside of the left front passenger’s door. The car lost control. She told me that it swerved off the road and went down an embankment. She believes that the vehicle hit a tree which caused damage to the front passenger side door (where she was sitting). As a result, she told me that her left leg was trapped. She had blood trickling down her face from the left temple region. She told me that she was trapped in the vehicle for four hours. She told me that she thought that she was going to die.
…
She told me that she has ‘no idea’ if Dale had been drinking. She said ‘I’m a bit unaware of what was going on because I’d had too much to drink’. She told me that she has ‘no idea’ whether Dale was charged over the accident.
She said ‘He left me in the car and went to the pub to get help, so I was left in the car alone in the dark, pretty scared’.
…
She reiterated that she ‘had way too much to drink’.
… .”[50]
[50]Exhibit N , pages 3-4
71Dr Weissman referred to the period of delay:
“At the beginning of the interview today I asked the claimant why her case is still active even though the accident occurred 20 years ago. She explained to me that up until now she had ‘put up with’ her physical and emotional symptoms whilst she was raising her four children. However her four children are now adults and have left home.”[51]
(emphasis in original)
[51]Exhibit N, page 4
72It would appear that the plaintiff did not say that her reason for the delay was that she had a “waiver” and that she had been told she had nothing to worry about.
Exhibit P – Victoria State Emergency Service Road Accident Operation Report dated 12 November 2001
73This report tends to support the inference that the plaintiff was the passenger when the collision occurred.
Other exhibits
74The plaintiff tendered a number of additional exhibits, including medical reports and copies of communications with the TAC. I do not propose to further refer to these, since there is no issue before me regarding the injuries that the plaintiff claims to have suffered as a result of the collision.[52]
Exhibit A – Chronology prepared by the Plaintiff’s representatives detailing dates of communications between the Plaintiff and the TAC
[52]Exhibit L – TAC file note dated 13 February 2018; Exhibit M – Letter from the TAC to the plaintiff dated 30 May 2017; Exhibit N – report of Dr David Weissman, medico-legal psychiatrist, dated 9 May 2022; Exhibit O – report of Mr Thomas Kossman, orthopaedic surgeon, dated 20 June 2022
75This document confirms that between 7 January 2008 and 24 June 2021, there were some 114 communications passing between the plaintiff and the TAC. The first such communication regarding the plaintiff’s potential common law claim occurred on 31 May 2021, the 111th communication. I have summarised the content of this communication earlier.
The Defendant’s case
76The defendant called no viva voce evidence. The defendant tendered a number of exhibits.
Exhibit 1 – Affidavit of Christopher Inness dated 23 January 2024
77Mr Christopher Inness, solicitor acting on behalf of the defendant, swore an affidavit dated 23 January 2024 in opposition to the plaintiff’s application to extend time. In it, Mr Inness confirmed that the plaintiff lodged a TAC Claim Form (annexed to the affidavit) on or about 15 October 2001, in which she gave the following account of the collision:
“‘Driving up road, myself as passenger and a car drove straight at us lights on high beam. Dale swe[r]ved to miss (indistinct) and banged into side road and went down the embankment.’”[53]
(emphasis in affidavit)
[53]Exhibit 1, paragraph 5
78Mr Inness deposed that the plaintiff was assessed by an orthopaedic surgeon, Mr Jonathan Rush, to whom she provided a similar account of the collision:
“… In his report dated 15 December 2004 Mr Rush recorded the following history given by the plaintiff:
‘… She was the front seat passenger in a Toyota Camry car. An oncoming car with the full beam lights on came straight at the car in which she was travelling. The car swerved to miss the other car, banged into the side of the road, and went down an embankment and hit a tree.’”[54]
(emphasis in affidavit)
[54]Exhibit 1, paragraph 14, and annexure CI 4
79Mr Inness also provided information about a police accident report dated 12 September 2002, noting that it records Mr Keating as the driver, as well as the fact that he was unlicenced. Mr Inness noted that despite this, Mr Keating was not charged with any offence arising from the collision. A copy of the police accident report is annexed to Mr Inness’s affidavit.[55]
[55]Exhibit 1, annexure CI 2
80Mr Inness also annexed to his affidavit a letter sent by Balfe & Webb solicitors to the plaintiff dated 7 September 2007, which, omitting formal parts, reads:
“7 September, 2007
…
Dear Therese,
Re: TAC Claim
I refer to our recent telephone discussions.
I confirm that, given that your accident occurred on 7 October 2001, then unless proceedings are commenced on your behalf by 7 October 2007, your claim for common law damages will be statute barred and you will have no further rights to bring such a claim.
Accordingly, should you wish to pursue the matter, I require you to provide confirmation of your instructions well prior to 7 October 2007.
Yours faithfully,
BALFE & WEBB.”[56]
(emphasis in original)
[56]Exhibit 1, annexure CI 6
81Mr Inness also set out the chronological history of correspondence between the TAC and Mr Lay regarding the granting of the waiver:
(a) Balfe & Webb advised the TAC that they had instructions to pursue impairment benefit and common law damages claims by letter dated 2 October 2007. They also noted that the statutory time limit was about to expire, and advised that they were not in a position to commence common law proceedings. Accordingly, they sought an extension of time and a waiver of the limitation period to enable the determination of the impairment benefits claim and “commencement of common law proceedings thereafter”;[57]
(b) On Wednesday, 3 October 2007, Mr Lay telephoned the TAC to again advise that they were acting on behalf of the plaintiff. A file note of the conversation annexed to Mr Inness’s affidavit records “Sols concerned 6 years EXPIRES on 7 OCTOBER 2007”, and notes that Mr Lay was requesting a waiver to extend the limitation period;[58]
(c) The next day, on Thursday, 4 October 2007, Mr Lay again telephoned the TAC “in relation to recent correspondence requesting Waiver - 6 years approaching”. The file note of the conversation records that “Sols will contact TAC again tomorrow to ascertain status. Will need to issue proceedings should waiver not be forthcoming”;[59]
(d) The following day, on Friday, 5 October 2007, Mr Lay again telephoned the TAC to enquire about the status of the waiver. Mr Lay was informed that the TAC needed to confirm the registration status of the vehicle at the time of the collision;
(e) On Monday, 8 October 2007, Ms Sarah Morrison of the TAC telephoned Mr Lay to report on the status of the waiver application. A file note of the conversation records:
“… Phone call to client’s solicitor Greg Lay to confirm extension of time - 6 months in which to provide a compliant Application in accordance with the [TAC] protocols.”[60]
(emphasis in original)
[57]Exhibit 1, paragraph 19, and annexure CI 7
[58]Exhibit 1, paragraph 20, and annexure CI 8
[59]Exhibit 1, paragraph 21, and annexure CI 9
[60]Exhibit 1, paragraph 24, and annexure CI 11
I note that the relevant protocol was not tendered in evidence by either party;
(f) The TAC confirmed by letter dated 10 October 2007 that “the waiver policy will apply in this matter”[61] (the “waiver letter”).
[61]Exhibit 1, paragraph 25, and annexure CI 12
82Mr Inness deposed that despite the waiver letter not specifying a timeframe, he believes “it is probable” that a six-month extension waiver was granted verbally based on the file note of the telephone call between Ms Morrison and Mr Lay of 8 October 2007. Furthermore, Mr Inness stated that he is “fortified” in this view on account of a further file note, also created by Ms Morrison, dated 18 June 2008, which file note references the 8 October 2007 conversation, and notes:
“… a waiver was granted & refer to my telephone conversation with the client’s solicitor Greg Lay on 08/10/2007 to confirm extension of time - 6 months in which to provide a compliant Application in accordance with the Protocols. 6 months has expired. However, waiver letter to e-file 11/10/2007 did not specify time frame. AT RISK. Jason, please review for CLP … .”[62]
[62]Exhibit 1, paragraph 26, and annexure CI 13
Although not expressly defined, I believe that, on a contextual reading of the file note, “CLP” stands for “common law potential”.
83Mr Inness deposed that the TAC determined the plaintiff’s impairment rating at 18 per cent whole person impairment. Despite this, no serious injury application was ever made. Mr Inness noted that the Balfe & Webb file had been destroyed after seven years[63] and that he was unable to state why no action had been taken when the plaintiff had apparently instructed Balfe & Webb to pursue common law proceedings following the determination of the impairment claim. Mr Inness also noted that he was “… unable to discern from the plaintiff’s affidavit what if any steps she took to either contact Balfe & Webb or the TAC in order to further her common law claim between 2008 and 2021”.[64]
[63]This is confirmed by email dated 30 November 2021, included in Exhibit E, annexure 2.3.8.
[64]Exhibit 1, paragraph 32
84In August 2008, the TAC arranged for an accident circumstances report to be prepared. Mr Inness noted that an investigator was appointed for this purpose. The investigator, Mr Philip Marshall, interviewed Mr Keating. During the interview, Mr Keating told Mr Marshall that he was not the driver of the vehicle. Mr Keating died on 24 January 2009. Mr Inness attempted to obtain further information from Mr Marshall about Mr Keating’s denial, however, Mr Marshall refused to cooperate.
85Mr Inness deposed that the plaintiff lodged a serious injury application with the TAC on or about 23 March 2022, which application included an affidavit (exhibit C in this application) with the following description of the collision:
“We were travelling along Kangaroo Ground – St Andrew Road.
I was in the front passenger seat, with my seatbelt on. It was dark, wet and foggy.
An oncoming vehicle came towards us with its high beams on. Dale swerved […] off to the right side of the road and went down an embankment, swerving through the trees, finally hitting a tree.”[65]
(sic)
[65]Exhibit 1, paragraph 41
86The TAC granted a serious injury certificate on 13 May 2022.
87Mr Inness then identified the likely prejudice that he alleged the defendant would suffer should leave be granted to extend time:
(a) Mr Inness noted that the nature of the plaintiff’s common law claim is based in negligence, and only particularises allegations against Mr Keating, who is now dead. There are no independent witnesses to the collision, and no police investigation notes or running sheets have been produced, save for the police accident report referred to above;
(b) The plaintiff’s given histories, and her account as sworn in her affidavits, allege that another vehicle drove directly at the plaintiff’s vehicle with its headlights on high beam, and that Mr Keating swerved to avoid that vehicle. In Mr Inness’s view, the plaintiff’s representations about the cause of the collision do not bespeak of any negligent act or omission on the part of Mr Keating, who, on the plaintiff’s version, did no more than take evasive action to avoid a head-on collision with another vehicle, whose driver was solely to blame. Furthermore, the plaintiff has never suggested that Mr Keating was speeding or was intoxicated;
(c) In light of the fact that Mr Keating is now deceased and that there are no other witnesses to the collision, Mr Inness deposed that the TAC is “specifically prejudiced in its ability to … [defend] the allegations against … [Mr Keating], particularly in the context of evidence of the oncoming vehicle”;[66]
(d) Mr Inness also deposed that the plaintiff had proffered no explanation as to why she “apparently did nothing at all in furtherance of her claim between 2008 and 2021”;[67]
(e) In all the circumstances, Mr Inness deposed that the defendant could not receive a fair trial should an extension of time be granted:
“53.I believe the TAC cannot receive a fair trial; it will suffer specific prejudice flowing from the death of Mr Keating and significant general prejudice flowing from the very substantial delay between the accrual of the cause of action and the plaintiff’s first indication to the TAC in July 2021 that she wished to further her common law claim. In my view no cogent or acceptable reason has been provided as to why it took well over a decade for the plaintiff to contact the TAC when she knew of the existence of a potential cause of action against Mr Keating and had specifically instructed her then solicitors to obtain a waiver for the purpose of pursuing that cause of action.”[68]
[66]Exhibit 1, paragraph 48
[67]Exhibit 1, paragraph 51
[68]Exhibit 1, paragraph 53
Exhibit 2 – Report of Dr Erin Redmond dated 4 February 2022
88The plaintiff saw Dr Erin Redmond, consultant psychiatrist, in relation to a separate WorkCover claim of bullying she had made against her workplace. Relevantly, the plaintiff denied any previous medical or psychiatric problems to Dr Redmond, who also reported that the plaintiff informed her “she is usually a very happy person and loves her life”.[69]
[69]Exhibit 2, page 3
89I note that the eleven-page report makes no mention of the 2001 collision.
Exhibit 3 – Report of Dr Leon Turnbull dated 23 October 2022
90The plaintiff also attended Dr Leon Turnbull, occupational and forensic psychiatrist, for her WorkCover Claim of bullying. In his report, Dr Turnbull noted:
“I asked her about avoidance through her life, and she told me ‘if I’ve needed help, I’ve asked for it’. She cited the example of her ex-partner, which was physically abusive, and she sought assistance ‘straight away’. She also had a motor vehicle accident over two decades ago and was trapped in a car, and she recalls fairly promptly seeing a psychologist thereafter for some unwanted memories.”[70]
[70]Exhibit 3, page 4
91The plaintiff also noted to Dr Turnbull that she “is in reasonable physical health”.[71]
[71]Exhibit 3, page 5
The parties’ submissions
92The parties each filed written submissions, which they augmented in oral argument.[72]
[72]Exhibit Q – plaintiff’s submissions dated 18 March 2024; Exhibit 4 – defendant’s submissions dated 20 March 2024
The Plaintiff’s submissions
93The plaintiff submits that the principal question affecting the exercise of discretion is whether a fair trial can be had should the application be successful:
“6.In exercising this discretion, the major consideration ‘is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’’: Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at [79]; Davies v Nilsen [2015] VSC 584 at [108]; WCB v Roman Catholic Trusts Corp of [scil for] the Diocese of Sale (No 2) [2020] VSC 639.”[73]
[73]Exhibit Q, paragraph 6
94With regard to the question of a fair trial, the plaintiff submits that a “fair trial” does not mean a “perfect trial”. In this regard, according to the plaintiff, the defendant can have a fair trial even though it may not be perfect, contending that the defendant will suffer no significant prejudice if leave is granted to extend time.
95Addressing the factors identified in s23A of the Act, the plaintiff submits:
(a) The plaintiff believed on reasonable grounds that she had been granted a waiver that entitled her to bring her cause of action when she was ready to do so;
183According to the plaintiff, before the statutory time limit expired, she knew that there was a statutory time limit of six years within which to bring her common law proceedings. The earlier correspondence from Mr Adam in 2004 informed her that common law proceedings could not be instituted unless she first established she had sustained a serious injury. She was aware a waiver had been granted, but claims she was unaware of the time limit it imposed.
184According to the plaintiff, she did nothing to press her rights prior to 31 May 2021, over thirteen years after the waiver period expired, when Mr Hoogendoorn of the TAC informed her that she had an active common law claim. Mr Hoogendoorn told the plaintiff he would have a member of the common law team call her back. Mr Williams of the TAC contacted the plaintiff, and suggested to her that she retain lawyers, which the plaintiff did.
185The plaintiff insists that the reason for delay was that Mr Lay told her that he had obtained a waiver and that “she had nothing to worry about”. She maintained that she believed the waiver was of such duration that allowed her to bring her proceedings whenever she was ready.
186I do not accept the plaintiff’s evidence in this regard for the following reasons:
(a) It is clear that in order to receive the benefit of the waiver, the plaintiff had only six months to prepare and file a compliant serious injury application in accordance with the TAC protocols. I consider it to be inherently improbable that having pressed the TAC about the urgency of the need for a waiver given the imminent expiration of the statutory time limit, and having received the waiver and knowing its terms, Mr Lay would tell the plaintiff or convey the impression to her that that the waiver was unconditional and unlimited by time. In other words, why would Mr Lay say or do anything to convey that the waiver was unconditional if he knew it was not? I do not accept that if Mr Lay told that plaintiff that she “had nothing to worry about”, he did so without advising her that she had an additional six months to file the necessary paperwork. If the plaintiff had complied with the terms of the waiver, then she would have had nothing to worry about;
(b) I consider it to be inherently unlikely that the party who granted the waiver, the TAC, would grant a waiver, the duration of which was not defined by the TAC or that did not accord with TAC policy. In other words, I do not consider it likely that the waiver deadline would be determined at the whim of the party to whom the waiver was granted. I am satisfied that the waiver was not open ended; it was for a defined period of six months. I am not satisfied that the plaintiff believed she could, at any time, bring common law proceedings without first making a serious injury application within that six-month period;
(c) The plaintiff did not see the waiver letter until it was shown to her by her current solicitors, who were only appointed on 24 June 2021, some thirteen years after the waiver period lapsed. She could not have known that this letter did not refer to an end date until then. Her current solicitor advised that the TAC had issued the waiver without an end date on it, as is evident from their letter to the plaintiff of 15 July 2021:
“Time limits - Out of time claims
… Fortunately, the TAC granted the waiver with no end date.
As such, it is arguable that we can still bring a common law claim … .”[112]
[112]Exhibit E, annexure 2.3.6
(d) Similarly, the plaintiff did not see the TAC file note of 18 June 2008 until these proceedings were commenced, so she could not have known that the TAC considered it may be “at risk” because of the way in which the waiver letter was drafted; and
(e) For the reasons set out earlier, I do not accept that the plaintiff is a credible witness.
187I reject the plaintiff’s submission that the TAC’s internal acknowledgment that it was “at risk” because the waiver letter did not have an end date on it is a relevant consideration. First, the state of mind of a member of the TAC about the status of the waiver letter says nothing about the state of mind of the parties to the conversation at the time that the waiver was granted orally by Ms Morrison to Mr Lay on 8 October 2007. The plaintiff was not privy to that conversation. More significantly, however, there is no evidence to suggest that Mr Lay was confused about the terms of the waiver as articulated to him. He asked for a waiver and an extension of time. He did not ask for an open-ended waiver:
“…
Accordingly, we hereby confirm our request for an extension of time and waiver of the limitation period to enable the determination of the impairment claim and the commencement of common law proceedings thereafter.
… .”[113]
[113]Exhibit 1, annexure CI 7
188The fact that Mr Lay asked for an extension of time implies that he knew that there were applicable time limits and that he was merely seeking a limited period of time within which to file the necessary documentation.
189There is no evidence to suggest that Mr Lay did not appreciate that the waiver was also conditional upon a compliant application being made in accordance with TAC protocols.
190The issue is not that the defendant thought it might be at risk because the letter did not specify an end date: the real issue is what the actual terms of the waiver were, whether its terms were communicated and understood by the plaintiff’s solicitor, Mr Lay, what Mr Lay communicated to the plaintiff about the terms of the waiver, and what the plaintiff did about it.
Section 23A(3)(b) – likely extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
191The plaintiff submits that the defendant will suffer no, or no significant prejudice to the defendant if leave is granted.
192On the other hand, the defendant submits that in addition to the presumed prejudice that will be suffered by reason of the lengthy delay, actual, incurable prejudice will be suffered by the defendant.
193I respectfully agree with the defendant’s counsel. The simple fact is that the plaintiff was intoxicated at the time of the collision. If her first accounts of the collision are to be accepted, it is difficult to see what Mr Keating did, or failed to do, that amounts to negligence. If the plaintiff’s latest versions of the collision are to be accepted, then it is difficult to see how the defendant can have a fair trial without being able to call or cross-examine Mr Keating. Clearly, Mr Keating is the critical liability witness.
194As to the inability to call the driver of the oncoming car as a witness, if that person ever existed, it appears that that person left the scene without leaving details. The absence of the other driver assumes more significance because it would mean that neither driver would be available to give evidence. There were no independent eye witnesses, and there is no suggestion that there is any other form of independent evidence to shed light on the circumstances of the collision.
Section 23A(3)(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
195The plaintiff submits that the TAC is essentially to blame for the delay:
“40.Despite the TAC recognising on 18 June 2008 that it had failed to stipulate a timeframe attached to the grant of a waiver and so remained on risk, it failed to alert the Plaintiff that it considered her common law claim to remain active until 31 May 2021.
41.It is submitted that this failure of the TAC to clarify the terms of the waiver was ultimately a major reason for the length of the delay.”[114]
[114]Exhibit Q, paragraphs 40-41
196I do not consider that these arguments satisfy the elements to which s23A(3)(c) is directed. The subparagraph is directed to what, if any, action the defendant took “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”.
197In August 2008, the TAC commissioned an accident investigation report. The report was unfavourable to the plaintiff because Mr Keating told Mr Marshall, the investigator, that he was not the driver of the plaintiff’s car. Mr Keating died in January the next year, and Mr Marshall refused to cooperate any further.
198The simple fact is that by then, the plaintiff had taken no action to press her rights. The contents of the investigation report were made available to the plaintiff’s legal representatives.
199There were no other witnesses to the collision. The plaintiff has failed to identify what steps the defendant could have taken to ascertain the circumstances of the collision, much less what the TAC failed to do by way of making available to the plaintiff the means of ascertaining the facts relevant to her cause of action. In fact, there is no suggestion that the defendant has denied access to any of the relevant material in its possession, custody or control that might have assisted the plaintiff to ascertain facts relevant to her cause of action.
Section 23A(3)(d) – duration of any disability of the Plaintiff
200There is no evidence to establish that at any relevant time, the plaintiff was under any disability, legal or otherwise, that prevented her from bringing her action before the expiration of the six-month waiver period.
201The plaintiff’s case is that she had no reason to bring her action within time, not that she was prevented from doing so because of any form of disability.
Section 23A(3)(e) – the extent to which the Plaintiff acted promptly and reasonably once she knew that Mr Keating’s acts or omissions might be capable at that time of giving rise to an action for damages
202As early as 22 July 2002, the plaintiff was aware that she might be able to bring a common law action to recover damages arising from the collision.
203Delay was caused in the period in which Moores refused to deliver the plaintiff’s file to Balfe & Webb. I attribute no blame to the plaintiff for this period of delay.
204Once Mr Lay took over carriage of the plaintiff’s action, he acted promptly and responsibly on the plaintiff’s behalf to secure a waiver and extension of time.
205I have found it inherently unlikely that Mr Lay would not have informed the plaintiff that she had only an additional six months within which to provide a compliant application in accordance with TAC policy. I have found that the plaintiff was aware of her rights but took no action for thirteen years to press her rights. No subsequent applications were made for further waivers.
206In all the circumstances, I find that the plaintiff acted neither promptly nor reasonably in pursuing her common law rights. I found the plaintiff was not a credible witness, and I have rejected her explanations for failing to take timely and appropriate action to commence common law proceedings.
Section 23A(3)(f) – steps, if any, taken by the Plaintiff to obtain medical and other expert advice, and the nature of any such advice received
207It is unclear what specific medical and other expert advice the plaintiff obtained prior to the expiration of the limitation period, although the plaintiff states that in early 2004, Moores notified her that she was required to attend appointments with medico-legal experts. The TAC sought expert opinion from Mr Jonathan Rush, who provided a report dated 15 December 2004, a copy of which forms part of Exhibit 1.
208It is not in dispute that a number of subsequent medical reports have been obtained.
209It does not appear that the plaintiff’s injuries are disputed. So much is clear from the fact that the TAC has made payments to the plaintiff, and that it has granted a Serious Injury Certificate on 13 May 2022. The issue is whether the TAC is liable for damages.
Conclusion and Orders
210Balancing all matters raised by the parties, and taking into account the evidence, the statutory framework and the relevant authorities, the Court is not satisfied that the plaintiff has established, on the balance of probabilities, that it is just and reasonable to order that the period within which an action on the cause of action proposed by the plaintiff be extended.
211Accordingly, I dismiss the plaintiff’s application.
212I shall hear the parties on the question of costs.
Annexure
Chronology
Date Event 1968
Plaintiff born
06/10/2001
Plaintiff celebrates her birthday at the Panton Hill Hotel
07/10/2001
Collision occurs shortly after midnight.
Ambulance Case Sheets, tendered as Exhibit F. The case sheets record that the plaintiff was located in the front left passenger seat
07/10/2001 – 15/10/2001
Plaintiff is an inpatient at the Austin Hospital, undergoing two surgeries on her left leg
15/10/2001
Plaintiff transferred to the Victorian Rehabilitation Centre for three weeks’ inpatient rehabilitation
15/10/2001
TAC Claim for Compensation form lodged and accepted by the TAC
The Claim Form includes the follow description of the collision:
“Driving up road, myself as passenger and a car drove straight at us lights on high beam. Dale swe[r]ved to miss them and banged into side road and went down the embankment.”
12/11/2001
Victoria State Emergency Services Road Accident Operation Report, tendered as Exhibit P
12/11/2001
Victoria SES Road Accident Operation Report, tendered as exhibit P. Implies that the plaintiff was the front passenger in the vehicle.
01/01/2002
Date unknown
Friend of plaintiff suggests that she obtain legal advice from Moores
01/07/2002
Date unknown
Plaintiff first attends offices of Moores
22/07/2002
Plaintiff engages Moores to act on her behalf
A letter dated 22 July 2022 addressed to the plaintiff confirms that Moores will act on her behalf, and explained the various claims the plaintiff may be able to make, including a claim for common law damages; however, the letter does not refer to any time limit in which a common law claim must be brought.
The plaintiff does not recall attending Moores again but notes she received letters regarding the status of her TAC funding.
28/08/2002
Collision Report Number 42002030324 compiled, tendered as Exhibit G. Records that the plaintiff’s vehicle “trav around bend lost control down embankment + hit 2 x trees”. (sic)
01/01/2004
Actual date unknown
Plaintiff received correspondence from Moores requesting her to attend medico-legal appointment
01/10/2004
Letter sent from Mr Tim Adam of Moores Legal to the plaintiff confirming she had previously received detailed advice about a common law claim and again requesting that she provide tax return information and further instructions in relation to her claim.
15/12/2004
Mr Jonathan Rush reports plaintiff’s history of collision as:
“… she was the front seat passenger … an oncoming car with the full beam lights on came straight at the car in which she was travelling. The car swerved to miss the other car … .”
01/01/2005
2005 to 2007 - exact period unknown
Plaintiff takes action via Legal Services Commissioner to obtain the file from Moores
01/04/2005
Actual date unknown
Plaintiff attends appointment with Mr Greg Lay, Solicitor, at Balfe & Webb
28/09/2007
Balfe & Webb receives file from Moores.
Mr Lay advises plaintiff that she has a six-year time limit to bring a common law claim, which period expires on 7 October 2007
07/09/2007
Letter from Balfe & Webb to the plaintiff requesting urgent instructions from her.
Letter states that the statutory time limit for bringing a claim for common law damages will expire on 7 October 2007
01/10/2007
Phone call from Balfe & Webb to the TAC, details of which do not appear in the materials.[115]
2/10/2007
Letter from Balfe & Webb to the TAC advising they have instructions to pursue impairment benefits and common law damages. The author refers to the imminent expiry of the time limit, noting they are not in a position to commence common law proceedings. An extension of time and waiver is sought.
03/10/2007
Mr Lay telephones the TAC, confirming he acts for the plaintiff and requests a waiver to extend the limitation period
04/10/2007
Mr Lay telephones the TAC, noting the limitation period is approaching and that he will contact the TAC again the next day to ascertain waiver status. He indicates that proceedings would have to be issued should a waiver not be granted
05/10/2007
Mr Lay telephones the TAC to enquire about the status of the waiver. TAC is awaiting registration status of the vehicle
07/10/2007
STATUTORY TIME LIMIT EXPIRES
08/10/2007
Sarah Morrison of the TAC phones Mr Lay, confirming an extension of time is granted:
“6 months in which to provide a compliant application in accordance with the TAC protocols.”
10/10/2007
Carlo Cresci of the TAC writes to Balfe & Webb confirming “that the waiver policy will apply in this matter”
12/11/2007
Letter dated 12 November 2007 from the Legal Services Commissioner to the plaintiff notifying her that no disciplinary action will be taken against Moores.
07/04/2008
THE WAIVER EXTENSION GRANTED VERBALLY ON 8 OCTOBER 2007 EXPIRES
01/12/2007 – 01/05/2008
Plaintiff receives impairment benefits from the TAC
Plaintiff decides to represent herself
18/06/2008
TAC file note references the verbal waiver given 8 October 2007 and states that the waiver was for six months to allow a compliant application to be provided:
“6 months has expired. However waiver letter to e-file 11/10/2007 did not specify a time frame. AT RISK. Jason, please review for CLP”
01/08/2008
Actual date unknown
TAC appoints Philip Marshall (investigator) to provide accident circumstances report. Mr Keating tells Mr Marshall he was not the driver of the vehicle
24/01/2009
Mr Keating dies
18/03/2010
Plaintiff telephones the TAC and instructs them not to give any information to Mr Lay because she did not trust him as a lawyer anymore.
31/05/2021
Plaintiff telephones the TAC to request funding for orthotics. During the telephone call, the claims officer informs the plaintiff that she has an active common law claim with the TAC
08/06/2021
Plaintiff calls the TAC to follow up on status of her common law claim, stating that she does not have legal representation
07/01/2008 – 24/06/2021
There are 114 communications between the plaintiff directly and the TAC. The first communication about the potential common law claim is on 31 May 2021, the 111th of such communications.
24/06/2021
Plaintiff speaks to Mr Williams of the TAC, who suggests she contact Maurice Blackburn Lawyers
24/06/2021
Plaintiff meets with Ms Alice Tan and Ms Katherine Ross of Maurice Blackburn Lawyers
09/07/2021
Plaintiff first attends the offices of Maurice Blackburn Lawyers regarding the collision.
Plaintiff tells solicitors that she has never had any previous advice about a TAC claim. She states that she was the passenger of the vehicle and because she had too much to drink, she let someone drive her car home “she did not know them that well … unsure if the driver had been drinking … the weather conditions were rainy and foggy, the road was extremely slippery. The driver of the vehicle lost control of the vehicle and the car flipped.”
Asked why she did not get advice earlier, the plaintiff states “did not know of time limits”
Solicitor advises that they would have to lodge an application to extend the date, “stating that there has been a reasonable delay – stating that she was unwell, physically and psychologically and did not see lawyer after accident”
Ms Tan contacts Mr Williams of the TAC via email to advise Maurice Blackburn Lawyers now acts on behalf of the plaintiff.
Mr Williams responds, noting the statute of limitations has expired, with a waiver granted in line with the TAC’s Common Law Time Limit Policy. Mr Williams queries whether the terms of the waiver have been met.
Mr Williams responds to Ms Tan’s email, stating the limitation period has “long expired” and that the plaintiff has had legal representation by at least two firms, Balfe & Webb and Moores. He confirms that a waiver had been granted in accordance with policy, but no serious application was made and “it is arguable whether the terms of the waiver have been met, noting 14 years have since past”.
13/07/2021
Plaintiff attends the offices of Maurice Blackburn
Plaintiff gives formal instructions to Ms Tan and Ms Ross to act on her behalf in respect of a common law claim for damages
15/07/2021
Maurice Blackburn writes a letter to the plaintiff advising that the limitation period has expired, and that an application may need to be made for an extension of time.
04/02/2022
Plaintiff Sees Dr Erin Redmond, consultant psychiatrist, about a separate WorkCover Claim of bullying. She denies any previous medical or psychiatric problems. Report tendered as Exhibit 2
23/03/2022
Plaintiff lodges serious injury application. Describes circumstances of collision in her Affidavit in support, tendered as Exhibit C
“11. Shortly after midnight, I was dancing, Dale said ‘Let’s Go’. I was ready to leave. I thought that I had drunk too much to drive safely, and I thought ‘Let’s Go’. I remember being in my car and Dale driving.
12. We were travelling along Kangaroo Ground – St Andrew[s] Road. I was in the front passenger seat, with my seatbelt on. It was dark, wet and foggy.
13. An oncoming vehicle came towards us with its high beams on. Dale swerved and lost control of the car. The car hit a tree on the left side of the road, swerved off to the right side of the road and went down an embankment, swerving through the trees, finally hitting a tree.”
09/05/2022
Dr David Weissman report, tendered as exhibit N, noting plaintiff’s description of circumstances of collision. Plaintiff states that at the time of the collision, she had “no idea” if Mr Keating had been drinking. She said that she was ‘a bit unaware of what was going on’ because ‘I’d had too much to drink’.
Plaintiff tells Dr Weissman that she has not pressed her claim for twenty years because “she had put up with her physical and emotional symptoms whilst she was raising her four children”.
13/05/2022
TAC grants the plaintiff a Serious Injury Certificate, but denies liability for the collision
16/08/2022
Writ and Statement of Claim filed
23/10/2022
Dr Leon Turnbull, occupational and forensic psychiatrist, reports, in relation to plaintiff’s WorkCover claim of bullying, plaintiff makes brief reference to the collision but provides little detail
08/08/2023
First affidavit of Pey-Chiann Hor, tendered as Exhibit E
08/08/2023
Amended Statement of Claim. The circumstances of the collision are described:
“1. On 7 October 2001, the Plaintiff was a passenger in a motor vehicle (‘the vehicle’) being driven by
the DefendantDale Keating (Date of Birth 21 May 1980) on Kangaroo Ground Road in St Andrews, in the State of Victoria, whenthe DefendantDale Keating lost control of the vehicle and it veered off the road and struck trees (‘the collision’).…
3. The collision was caused by the negligence of
the DefendantDale Keating in the driving and management of the vehicle.”28/11/2023
Further affidavit of Pey-Chiann Hor, tendered as Exhibit D
28/11/2023
Plaintiff swears her affidavit tendered as Exhibit B
23/01/2024
Affidavit of defendant’s solicitor, Christopher Inness, tendered as Exhibit 1
27/02/2024
Affidavit of Katherine Ross, tendered as Exhibit J.
[115]The joint chronology, exhibit R, states that the file note is attached as annexure TL4. In fact, TL4 is the “waiver letter” dated 10 October 2007.
[AS1]Deleted, because text repeated in paragraphs 12 and 13 below
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