Mackay v Winston (Ruling)
[2022] VCC 2093
•6 December 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-03178
| THEA MACKAY | Plaintiff |
| v | |
| JOHN WINSTON | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 9 August 2022 | |
DATE OF RULING: | 6 December 2022 | |
CASE MAY BE CITED AS: | Mackay v Winston (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2093 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury – transport accident – application to bring claim for common law damages out of time – substantial delay in bringing claim – prejudice – fair trial – cause of action against solicitors
Legislation Cited: Limitation of Actions Act 1958 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:Davies v Nilsen [2015] VSC 584; Hunt v Holcombe [2018] VSCA 248; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639
Ruling:Extension of time granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Cooper | Slater and Gordon |
| For the Defendant | Mr J L Batten with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff, Thea Mackay, was involved in a motor vehicle collision on 10 April 2005. At around midday, Ms Mackay was driving her car through the intersection of the Monash Freeway off-ramp and Blackburn Road, Glen Waverley. She had the benefit of a green light. As she proceeded through the intersection, the defendant, John Winston, drove his vehicle through a red light and “T‑boned” her car (“the accident”).
2That the accident occurred, and Ms Mackay suffered injury as a consequence, was not in dispute at the hearing of this application.[1] That Ms Mackay has a cause of action at common law against Mr Winston was also accepted by him.[2]
[1]Transcript (“T”) 8, Lines (“L”) 13-14
[2]T147, L20-23
3A common law proceeding is subject to the provisions of the Limitation of Actions Act1958 (Vic) (“the LAA”), and in particular s5(1), which provides for a six-year limitation period.
4The six-year limitation period expired on 11 April 2011. Ms Mackay served her serious injury application on Mr Winston’s insurer, the Transport Accident Commission (“TAC”) on 10 May 2016.[3] Proceedings were issued on 17 July 2020. Ms Mackay served her serious injury application and issued common law proceedings well out of time.
[3] T25, L21 – T26, L2
5In this application, Ms Mackay seeks an extension of the date to issue her proceedings to 17 July 2020.
The legislation
6Section 23A(2) of the LAA empowers the Court to extend the limitation period within which an action for personal injury may be brought. The Court must be satisfied that it is “just and reasonable so to do”.
7Section 23A(3) relevantly provides:
“(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.”
The issues
8The issues to be determined include:
· As to Ms Mackay’s credit and the reliability of her evidence.
· The length and reasons for Ms Mackay’s delay.
· The extent of specific prejudice suffered by Mr Winston.
· The extent of general prejudice suffered by Mr Winston.
· The extent to which Ms Mackay acted promptly and reasonably once she knew of her right to pursue an action for damages.
· The weight, if any, to be given to a potential claim that Ms Mackay may have against her former or current lawyers.
· Having analysed the issues in the matter, I must undertake a synthesis of the competing considerations.[4]
[4]Davies v Nilsen [2015] VSC 584 at paragraph [44] (per J Forrest J)
Ms Mackay’s credit
9In the course of the application, Mr Winston challenged the credibility and reliability of Ms Mackay’s evidence. He said there were many aspects of her evidence which I should not accept. He said that, generally, her evidence was unsatisfactory.
10The attack on Ms Mackay’s credit was made in the context of both:
(a) her evidence in this application; and
(b) the prejudice which Mr Winston would face at the trial of the substantive matter, given she was not an honest person.
11In the course of undertaking my analysis of the issues, it is necessary for me to review the evidence and make findings in respect to the plaintiff’s credit and the facts which are relevant to this application.
The length and reasons for the delay on the part of Ms Mackay
12It is convenient that I break up my analysis of the delay by Ms Mackay into six discrete periods:
(a) the relevant background prior to the accident;
(b) between the accident and 8 May 2008, when Ms Mackay first sought legal advice;
(c) from 8 May 2008 through to 11 April 2011, when the limitation period expired;
(d) from the 11 April 2011 through to February 2014, when Ms Mackay retained Nowicki Carbone lawyers;
(e) between February 2014 and 10 May 2016, when Ms Mackay lodged her serious injury application;
(f) between 10 May 2016 and the hearing of this application.
Ms Mackay – history prior to the accident
13Ms Mackay was born in 1968. She is aged fifty-four years. She was divorced at the time of the accident. She has no dependants.
14On 20 January 2003, Ms Mackay commenced work as a bank teller at the Westpac Bank. Initially she was working full time.[5]
[5] Plaintiff’s Further Amended Court Book (“PFACB”) 183
15It was also in 2003 that Ms Mackay developed an interest in children’s entertainment, in particular, face painting and acting as a clown.
16Ms Mackay’s involvement in this hobby grew. She saw the potential to obtain work as a children’s entertainer. She registered the business name “Bebop Children’s Entertainment”. At a later time, the business name was changed to “AbraKIDabra Children’s Entertainment”.[6]
[6]The name change occurred 18 July 2006, T43, L29-30
17In late 2003, Ms Mackay hurt her back in a slipping accident while at work with Westpac. She lodged a WorkCover claim. She said she received medical treatment for this injury in 2003 and 2004. She said that, by the time the accident occurred, this injury had settled.
18In 2003, Ms Mackay obtained work at the Bayswater Hotel as a children’s entertainer.[7] She worked at the hotel on Friday and Saturday nights for two hours. Given this commitment, she reduced her hours at Westpac to thirty-five hours per week. She did not work at the bank on Friday afternoons.[8]
[7] T44, L18
[8] T130, L9-23
19Thus, at the time of the accident, Ms Mackay was working thirty-five hours per week at Westpac, and two nights per week as a children’s entertainer.
The accident through to 8 May 2008 when Ms Mackay first sought legal advice
20Ms Mackay did not seek medical treatment on the day of the accident.
21The next day, Ms Mackay consulted her general practitioner. At that time, she said she was suffering pain in her lower back and in her torso region. By reason of these injuries she was certified off work.
22On 13 April 2005, Ms Mackay telephoned the TAC to report the accident and to lodge her claim for benefits under the no-fault statutory scheme set up under the Transport Accident Act 1986 (Vic) (as amended) (“the TAA”).
23At the time of this telephone discussion, Ms Mackay said she told the TAC that she was working as a children’s entertainer.
24The TAC records of this discussion confirm this:
“LOE: Clnt works part-time at Westpac. I advised her to provide 12m pay details pre-MVA. Clnt also has a business which she has barely started. She’s not interested in claiming loss of income from the business as it would be hard for her to prove anyway.”[9]
[9]PFACB 376
25Subsequent to her initial discussion with the TAC, they forwarded to her a partly-completed claim form. Ms Mackay then completed part of this form and sent it back to the TAC.
26The claim form did not make reference to Bebop Children’s Entertainment or Ms Mackay’s work as a children’s entertainer. Much was made of this omission by Mr Winston in the course of the hearing. He said the failure by Ms Mackay to disclose her work as a children’s entertainer in her claim form went to her credit.
27Ms Mackay’s claim for statutory benefits under the TAA was accepted. Payments were made for both loss of earnings and medical and like expenses.
28Apart from an unsuccessful return-to-work attempt approximately one month after the accident, Ms Mackay has not returned to work with Westpac. She said that she was unable to return to this work because of her lower back injury. Ms Mackay also said that she was experiencing considerable depression and anxiety because of her pain and ongoing restriction.
29After the accident, Ms Mackay returned to her children’s entertainment work at the Bayswater Hotel. She said that she initially resumed working one night per week for two hours.
30Though Ms Mackay could not recall in specific detail, it became clear in the course of the application that she did have some ongoing contact with the TAC in 2005 and 2006.[10] The TAC records of this contact did make reference to Ms Mackay’s child-entertainment business.
[10]See the TAC records annexed to the two affidavits of Ms Najd Hussein, sworn 8 August 2022, at PFACB 373-386.
31Ms Mackay said she continued to undertake work as a child entertainer throughout 2005 to 2008. Her hours gradually increased.[11] She also organised other child entertainers to undertake work at other venues. Ms Mackay did not advise the TAC of her earnings from her child-entertainment business. Ms Mackay did not advise the medico-legal assessors organised by the TAC of this work. In this period, for the TAC, she was assessed by:
(a) Mr John O’Brien, orthopaedic surgeon, 8 February 2006 and 27 September 2006,
(b) Dr David Weissman, psychiatrist, 8 February 2006 and 9 October 2007;
(c) Dr Chris Baker, occupational physician, 28 December 2007.
[11]See the email at PFACB 209-210 which Ms Mackay sent to Maurice Blackburn, 13 May 2008, which sets out the hours she worked.
32Mr Winston said that Ms Mackay’s failure to tell the TAC, and these doctors, of her ongoing work as a children’s entertainer affected her credit and the reliability of these reports.
33Between the accident and May 2008, Ms Mackay said she received treatment for her lower back injury. This included attendances on her general practitioner, Dr Daryl Ryter, CT and MRI scans, and attendances on various specialists, including Dr Clayton Thomas, Dr Peter Courtney, and Dr David Vivian. She said she underwent three medial branch block injections.
34Ms Mackay was also receiving treatment for the psychological distress caused by the accident and her ongoing back injury. In addition to speaking with Dr Ryter, she was referred for psychological assessment and treatment. She said that she had consulted a number of different psychologists, including Ms Gemma Ali and Ms Amanda Bond, and psychiatrist Dr Sujit Sharma.
35Ms Mackay said that the TAC had paid for some of her medical treatment.
36Between the date of the accident and February 2008, Ms Mackay had received loss of earnings/loss of earning capacity benefits from the TAC.
37In February 2008, the TAC notified Ms Mackay that her loss of earning capacity benefits would be terminated. The TAC advised her that they had received information that she was currently operating a child-entertainment business and had been doing so for some time. As Ms Mackay had been working, but had not advised the TAC of the details, they said they would not pay further income support.
38Up to this time, Ms Mackay had not sought legal advice in respect to her rights arising out of the accident.
8 May 2008 to the expiration of the limitation period on 11 April 2011
39By letter dated 7 May 2008, the TAC advised Ms Mackay they considered that she may have committed criminal offences contrary to the TAA. They invited her to participate in a formal interview which would be taped in accordance with s464 of the Crimes Act 1958 (Vic). The TAC letter also advised Ms Mackay that she may wish to seek legal advice.
40Ms Mackay sought legal advice. She contacted Victoria Legal Aid, Slater and Gordon, and Mr John Voyage at Maurice Blackburn. Mr Voyage organised for Ms Mackay to meet with Mr Malcolm Cumming, solicitor, at that firm’s Ringwood office.
41On 8 May 2008, Ms Mackay consulted Mr Cumming. This was a lengthy consultation. Eleven pages of notes from this meeting were tendered. Ms Mackay said that the main focus of the discussion was on the threatened prosecution. The notes were difficult to decipher. What is clear is, that in addition to his notes on the threatened prosecution, Mr Cumming took a very detailed history of the circumstances of the accident, the injuries suffered by Ms Mackay, the treatment received by her, and the work which she had undertaken as a children’s entertainer.
42Ms Mackay said, at this time, she did not receive advice about “common law rights”. However, she did say that, as a result of her discussions with the lawyers, she understood that she may have rights to further compensation if she had a 30 per cent impairment, or a very serious injury, such as the loss of a limb.
43Subsequent to the 8 May 2008 consultation, Ms Mackay provided Mr Cumming with further information and, in particular, an email dated 13 May 2008 setting out the hours which she had been working as a children’s entertainer.[12]
[12]PFACB 209-210
44By letter dated 14 May 2008 addressed to Ms Mackay, Mr Cumming provided a great deal of advice.[13] Specifically, this letter referred to:
(a) a potential common law claim;
(b) the six-year limitation period.
[13]PFACB 212-213
45On 24 June 2008, Ms Mackay telephoned Maurice Blackburn and left a message. The file note of this message said, in part:
“Hasn’t heard back from us.
What’s happening?”[14]
[14]PFACB 215
One interpretation of this file note is that Ms Mackay had not received or read the 14 May 2008 Maurice Blackburn correspondence.
46Mr Cumming, by letter dated 26 June 2008, advised Ms Mackay that he had referred her to Robert Stary and Associates for advice in respect to the criminal prosecution. He told her that he had requested further information from the TAC. He said that he would provide her with further advice about “your potential lump sum compensation entitlements”.[15]
[15]PFACB 218
47This correspondence also confirmed that formal instructions had not been provided to Maurice Blackburn by Ms Mackay. Mr Cumming requested that she sign the Preliminary Disclosure Statement and have that returned to his office.
48Ms Mackay did not retain Robert Stary and Associates as recommended. Rather, she organised a solicitor from Legal Aid to represent her in the TAC prosecution.
49Subsequent to his 26 June 2008 letter, Mr Cumming forwarded to Ms Mackay, further letters of advice dated 9 September 2008, 28 November 2008 and 6 October 2009. These letters provide generic advice, including reference to common law entitlements and the six-year limitation period. A brochure setting out the rights of a person injured in a transport accident was also said to have been provided.
50Ms Mackay did not respond to this further Maurice Blackburn correspondence, nor did she establish a retainer with them.
51Ms Mackay’s knowledge of her potential common law rights was strenuously tested in the course of the application. She said that she had not, to her recollection, read the letters from Mr Cumming, nor the brochure which was said to have been provided. Ms Mackay said that, at the time of this correspondence, there were periods when she did not open her mail.
52On 21 June 2010, at the Ringwood Magistrates’ Court, she pleaded guilty to charges brought against her by the TAC Prosecution Division.[16]
[16]T78, L18-23
53In October 2010, the TAC sought restitution from Ms Mackay in the sum of $7,997.[17] Ms Mackay said that restitution was made to the TAC, but for a lesser amount.[18]
[17]See TAC letter to Ms Mackay of 29 October 2010, Defendant’s Amended Court Book (“DACB”) 76
[18]T78, L26-30
54Ms Mackay said she had formed the view, having spoken with the lawyers in May 2018, that her injuries were not sufficiently serious to enable her to pursue any claim for further compensation. She also said she had been very distressed by reason of the TAC prosecution.
55Ms Mackay said she did not seek any further legal advice from either Maurice Blackburn or any other lawyers prior to 11 April 2011.
56Thus, on 11 April 2011, the limitation of actions period expired.
11 April 2011 to February 2014 when Ms Mackay retained Nowicki Carbone
57Ms Mackay said that, having formed the view that her injuries were not 30 per cent or very serious, such as the loss of a limb, she did not believe she had an entitlement to any further compensation. She did not, in those circumstances, seek any further or alternative legal advice between 11 April 2011 and February 2014.
February 2014 to the lodging of the Serious Injury Application on 10 May 2016
58In February 2014, Ms Mackay accompanied her mother to a meeting with Ms Felicity Broughton, solicitor, Nowicki Carbone Lawyers. Ms Mackay’s mother was seeking advice in respect to an injury which she had suffered in an accident. Ms Mackay said she was providing her mother with support, and she did not attend this meeting with a view to discussing the accident or any entitlements which she may have.
59In the course of this meeting, the circumstances of Ms Mackay’s accident and the ongoing injuries which she was suffering, came up in conversation. Ms Mackay said Ms Broughton explained to her that she may have the basis of a common law claim for damages. Ms Mackay said that Ms Broughton provided advice in respect to the six-year limitation period.
60Ms Mackay said it was at the time of this discussion that she first appreciated she may have had a viable common law claim.
61As a result of her discussion with Ms Broughton, Ms Mackay retained Nowicki Carbone to act on her behalf.
62Nowicki Carbone, by letter 12 March 2014, advised the TAC they acted for Ms Mackay and were investigating a common law claim on her behalf. Nowicki Carbone requested the TAC implement its “waiver policy” in respect to the potential limitation defence.
63The TAC, by letter 25 March 2014, advised Nowicki Carbone it could not implement its “waiver policy”, as the request had been made outside the six-year limitation period.
64While the TAC advised Nowicki Carbone it would not implement its waiver policy, they did commence an investigation into the circumstances of the accident. Ms Mary-Anne Bourke, Mr Winston’s solicitor, said, in paragraph 65 of her first affidavit:
“As it appeared that the plaintiff intended to seek a determination that she had a serious injury and to make a claim for common law damages, the TAC conducted investigations that the vehicle driven by the potential defendant was registered at the date of the accident and arranging to interview the insured driver and witnesses identified in the police report.”[19]
(My emphasis.)
[19]Affidavit of Ms Mary-Anne Bourke, sworn 13 May 2022, DACB 11 at paragraph [65]
65Thus, by March 2014, the TAC, Mr Winston’s insurer, had identified a potential liability on his behalf. A Police Incident Report had been obtained. The TAC was arranging interviews with Mr Winston and the witnesses who had been identified in the Police Incident Report.
66I pause here to refer to the Police Incident Report. There were three witnesses identified in this report:
(a) George Cherian, whose birthday is December 1981;
(b) Bernie Fahrmer, whose birthday is August 1958;
(c) Woon Ooi, for whom there was no date of birth recorded.
Mr Cherian was identified as being a passenger. There was no identification in the Police Incident Report of the circumstances of Mr Fahrmer or Mr/Ms Ooi witnessing the accident.
67Ms Bourke said that, between 25 March 2014 and 4 May 2016, no further correspondence was received by the TAC from Nowicki Carbone. She said that, on 4 May 2016, Nowicki Carbone (who had merged with Slater and Gordon), served the TAC with an originating motion which had been issued on 5 May 2015. That originating motion sought a serious injury certificate pursuant to s93 of the TAA and an extension of the limitation period pursuant to s23A of the LAA. Ms Bourke said that the parties signed consent orders on 9 June 2016. The TAC agreed to have this application held in abeyance.[20] It was not to be listed for administrative mention before 9 September 2016.
[20]DACB 12 at paragraph [68]
68On 10 May 2016, Ms Mackay’s serious injury application was served on the TAC.[21]
[21]T25, L21 – T26, L2
10 May 2016 to the hearing of the application
69Notwithstanding that the serious injury application was in the hands of the TAC by 10 May 2016, no final determination was made by them until 9 April 2019. In the intervening period of nearly three years, there had been sporadic correspondence between the TAC and Nowicki Carbone/Slater and Gordon. [22] Ultimately, a serious injury certificate was granted to Ms Mackay on 9 April 2019.[23]
[22]See Ms Bourke’s affidavit, DACB 11-14 at paragraphs [61]-[86], which details the various interactions between the TAC and Nowicki Carbone/Slater and Gordon.
[23] DACB 12 at paragraph [86]
70Subsequent to the granting of the Serious Injury Certificate, Ms Mackay’s case entered into the TAC protocol conferencing process.
71A TAC protocol common law conference was not held until 24 June 2020. The matter did not resolve. The Writ was filed on 17 July 2020. Mr Winston’s Defence, which included his pleading of the Limitation Defence, is dated 18 February 2021.
Analysis of the reasons for the delay prior to Ms Mackay retaining Nowicki Carbone
72When determining the reasonableness of Ms Mackay’s delay in bringing her claim, I must examine her personal state of knowledge.[24] I must do so in respect to:
(a) the existence of a common law cause of action;
(b) the limitation period which may defeat that claim.
[24]Hunt v Holcombe [2018] VSCA 248 at paragraph [61]
Existence of a common law cause of action
73I will firstly deal with Ms Mackay’s knowledge of the existence of a common law cause of action against Mr Winston.
74There is no doubt that Ms Mackay received legal advice in May 2008. It was Ms Mackay’s case that, notwithstanding that advice, she was “ignorant” of her entitlement to pursue a common law claim.
75Mr Winston said that she had been advised of her rights, she was not ignorant, and that she had chosen not to pursue her claim until a very long time after the expiry of the limitation period.
76There is, as recently discussed by the Court of Appeal in Griffiths v Nillumbik Shire Council,[25] a distinction between a claimant understanding that they may have a common law claim and the claimant believing that there were poor prospects of success in such a claim. In this matter, my assessment of the evidence favours a finding of the latter scenario.
[25][2022] VSCA 212
77Ms Mackay’s evidence on these matters was inconsistent. While she said she was ignorant of her rights, she gave evidence that such a claim had, in fact, been discussed. I refer particularly to the following evidence:
(a) Ms Mackay, in her affidavit of 3 May 2016, said of her consultation with Mr Cumming:
“… I think I saw him in respect of my TAC claim including my TAC Court matter, although I had great difficulty understanding his advice.”;[26]
[26]PFACB 241 at paragraph [30]
(b) Ms Mackay, in her affidavit of 30 June 2022, said of her consultation with Mr Cumming:
“So far as my injuries are concerned, my recollection is that I was informed that I had an insufficient impairment to make any further claim for compensation. I can recall a phrase being used around that I had ‘not lost a limb’ or was ‘not in a wheelchair’ and my understanding was that no claim was available to me.”;[27]
[27]PFACB 172 at paragraph [6]
(My emphasis.)
(c) In response to questioning by Mr Batten, Ms Mackay said:
“The first I heard about the 30 per cent impairment was from Malcolm Cumming and he said to me to sue for any lump sum, you would need to have at least a 30 per cent impairment, and you don’t have that. You’re not in a wheelchair, you haven’t lost a limb, so you wouldn’t make the 30 per cent so you don’t have a case.”;[28]
[28]T75, L12-17
(My emphasis.)
(d) In response to questions by her own counsel, Ms Mackay said:
Q:“… Insofar as – you told His Honour that you recalled Malcolm saying to you you’ve got to be 30 per cent to pursue damages or common law damages. I think was what was put to you. When you were told that advice, did you have any reason to question that advice?---
A:No, because I wasn’t even there for that anyway. So, I didn’t know why we were talking about 30 per cent and anything anyway.”;[29]
(e) Again, when answering questions by her counsel, Ms Mackay said:
“... the first I knew about it was when he brought up the 30 per cent and that I wouldn’t qualify because I haven’t lost a limb. I’m not in a wheelchair. So, you won’t qualify. So, therefore, you have no case.”[30]
(My emphasis.)
[29]T95, L16-22
[30]T96, L24-28
78I also note Mr Voyage’s file note of 8 May 2008. He recorded of his discussion with Ms Mackay:
“Has already rung Slaters, they gave advice of 30%wpi as the only door to c/l[31]
and
“Ref by Legal Aid (gave our number and Slaters)”.[32]
[31]PFACB 196. I interpret “30%wpi” as referring to the 30 per cent whole person impairment threshold for a serious injury and “c/l” is reference to a common law claim.
[32]PFACB 196
79I do not accept that Ms Mackay, consequential to the legal advice provided to her in May 2008, did not understand that she potentially had an entitlement to “sue” for damages. The language used by her in her evidence is consistent with the two gateways to bring a common law claim contained in the TAA. That is:
(a) a 30 per cent whole person impairment;
(b) a serious injury.
80I conclude that, having received advice, Ms Mackay formed the view that her injuries were not sufficiently serious to justify proceeding with a case. That is, she was aware of the possibility of a common law action, but formed the view that she did not have a viable claim.
81I accept Mr Winston’s assertion that, at the time Ms Mackay received advice from Maurice Blackburn in May 2008, she knew that his actions might be capable of giving rise to an action for damages.[33]
[33]See, in particular, the discussion in Griffithsv Nillumbik Shire Council (supra) at paragraph [81].
82I also accept that this conclusion was reached by Ms Mackay in the context of her being very distressed by reason of the TAC prosecution, and in circumstances where she was suffering psychological injury.
Knowledge of the limitation period
83I will now deal with Ms Mackay’s knowledge of the limitation period.
84Ms Mackay said she did not have knowledge of the six-year limitation period until her meeting at Nowicki Carbone in February 2014.[34]
[34]PFACB 173 at paragraph [12]
85Mr Winston said that the letters which Mr Cumming forwarded to Ms Mackay did refer to the six-year limitation period, even if that advice had not been provided in conference.
86In the course of her oral evidence, Ms Mackay said that, while the letters may have been sent by Maurice Blackburn, she did not believe she had opened them. She said, because of her psychological distress, there were a lot of letters that she did not open, and which she just ignored. For example, in answer to questions by Mr Batten she said:
“I ignored any correspondence from anyone, including Maurice Blackburn, because they told me I didn’t have a case and they couldn’t help me. So I had no reason.”[35]
[35]T73, L21-24
87I accept that Ms Mackay did not appreciate, prior to the expiration of the limitation period, that there was a six-year limitation period for bringing a common law claim. While Maurice Blackburn clearly advised of this limitation period in at least two of their letters of advice, I am prepared to accept, having heard and observed Ms Mackay give evidence, that she did not have knowledge of the six-year limitation period prior to consulting Nowicki Carbone. I gain some comfort in this conclusion from the 24 June 2008 Maurice Blackburn file note. While a letter had been forwarded by Maurice Blackburn, dated 14 May 2008, on 24 June 2008, Ms Mackay maintained that she had not heard from them. This is consistent with Ms Mackay not dealing with her mail.
Conclusions in respect to Ms Mackay’s delay prior to retaining Nowicki Carbone
88I accept that, between June 2008 and the expiration of the limitation period and/or the retention of Nowicki Carbone, Ms Mackay:
(a) did not pursue any further advice from Maurice Blackburn, nor alternative lawyers, as she had formed the view she did not have a viable claim;
(b) did not appreciate there was a six-year limitation period.
When is the end point of the delay?
89In the course of this application, counsel for both parties made differing submissions in respect to the end point for the delay. It is appropriate that I consider and clarify this before proceeding with the analysis of the delay subsequent to Ms Mackay retaining Nowicki Carbone.
90Mr Winston said the end point for the timing of the delay was the issue of the current application.[36]
[36]T149, L9-29
91Mr Winston said there was a seventeen-year delay between the accident and Ms Mackay issuing the current application.[37] He said this delay was “inordinate” and “inexcusable”.[38]
[37]There were many references to this in the course of the application. See for example; T138, L27 ꟷ T139, L2.
[38]T138, L29-30; Defendant’s submissions, paragraph [41] at page 10
92Ms Mackay said that the end point for the delay was 12 March 2014, when Nowicki Carbone wrote to the TAC seeking a waiver of any limitation period.[39]
[39]T158, L13-14
93The end point for the period of delay was recently considered by the Court of Appeal in Griffiths v Nillimbuk Shire Council. Their Honours, Beach JA, Keogh and J Forrest AJJA, at paragraph 108, said:
“… we agree that the appropriate end point for calculating the period of delay in a claim involving a ‘serious injury’ process such as that provided by s 134AB of the AC Act, is the date upon which the respondent to the claim (or its insurer) receives the serious injury application and the material supporting the application … This approach has been adopted by trial judges of this Court.”[40]
(Footnote omitted.)
[40]Griffiths v Nillumbik Shire Council (supra) at paragraph [108]
94It was agreed that Ms Mackay’s serious injury application was served on 10 May 2016.[41] Thus, the end point for the delay:
(a) is eleven years and one month from the date of the accident;
(b) five years and one month after the expiration of the limitation period;
(c) two years and two months after Ms Mackay retained Nowicki Carbone.
[41]T25, L 21-30
95I do not accept:
(a) Mr Winston’s submission that the end point for the delay goes beyond 10 May 2016;
(b) Ms Mackay’s submission that the period of delay finished on 12 March 2014.
The delay after Ms Mackay retained Nowicki Carbone
96Moving, now, to the delay of two years and two months between Ms Mackay retaining Nowicki Carbone and the lodging of the Serious Injury Application.
97In that time:
(a) the letter 12 April 2014 was sent to the TAC;
(b) the TAC undertook the investigations referred to in paragraph 65 of Ms Bourke’s affidavit;
(c) Nowicki Carbone obtained Ms Mackay’s file from Maurice Blackburn;
(d) A Freedom of Information application was lodged by Nowicki Carbone to the TAC;[42]
(e) an originating motion was issued, but not served, by Nowicki Carbone, seeking relief pursuant to both s93 of the TAA and s23A of the LAA;
(f) medico-legal assessments were organised by Nowicki Carbone for Ms Mackay to be assessed by Mr Garry Grossbard, orthopaedic surgeon,[43] and Dr Muhamed Nathar, psychiatrist.[44]
[42]DACB 131
[43]PFACB 292
[44]PFACB 296
98There may have been other steps taken (for example, the retention of counsel to draw the 3 May 2016 affidavit.)[45] However, no evidence was adduced in this regard.
[45] PFACB 234
99I accept that the steps identified were necessary for the investigation and preparation of a serious injury application/common law claim on behalf of Ms Mackay.
100Mr Winston said that Nowicki Carbone could have progressed the matter more expeditiously. That may be so. However, I accept that Ms Mackay, having retained Nowicki Carbone, believed her matter was being progressed appropriately. As set out by J Forrest J in Davies v Nilsen,[46] there are traps to be had in assessing Ms Mackay’s actions in this period through an adversarial legal prism.[47] I accept Ms Mackay does not have legal training, and clearly had limited knowledge of the laws of tort.
[46]Supra
[47](Ibid) at paragraphs [105]-[106]
101I accept that any delay which occurred between Ms Mackay retaining Nowicki Carbone and 10 May 2016 occurred in circumstances where:
(a) Ms Mackay held a reasonable belief that Nowicki Carbone was taking appropriate action;
(b) no evidence was adduced that any delays during this period were of Ms Mackay’s doing.
102I also note, notwithstanding the submissions made by Mr Batten, that the TAC, as Mr Winston’s insurer, were, from March 2014, conducting investigations with respect to the accident, including matters relevant to breach.
Specific prejudice
103Mr Winston said there were three grounds of specific prejudice suffered by him:
(a) his inability to obtain materials from the Department of Transport in respect to the traffic-light sequencing at the time of the accident;
(b) the destruction of the Victoria Police records;
(c) the “existence of a potential witness, namely the driver of another motor vehicle”.[48]
[48]Defendant’s written submissions, paragraph [59] at page 12
104Before I deal with each of the items of specific prejudice, I will make some general observations in respect to:
(a) the circumstances of the accident;
(b) the evidence of the circumstances of the accident which is available.
105In making these observations, I will adopt the approach of J Forrest J in Davies v Nilsen[49] at page 8, where he referred to the need to sort out the “furphies and red herrings”.
[49]Supra
106Mr Winston conceded that Ms Mackay has a cause of action against him arising out of the accident. Mr Winston alleges contributory negligence against Ms Mackay. In paragraph 5 of his Defence, he particularised these allegations:
(a) failing to take any, or any proper, precautions for her own safety;
(b) failing to keep a proper lookout;
(c) placing herself in a position of danger;
(d) exposing herself unnecessarily to the risk of injury;
(e) commencing to turn her vehicle and allowing it to diverge into the path of Mr Winston’s vehicle, when it was unsafe and/or when there was neither time, nor opportunity to do so safely;
(f) failing to give way to Mr Winston’s vehicle;
(g) failing to observe or obey a traffic-control signal;
(h) failing to apply the brakes of her vehicle sufficiently to avoid a collision, or at all;
(i) creating an emergency depriving Mr Winston of any, or any reasonable, opportunity of avoiding a collision.
107The Police Incident Report stated that the intersectional lights were operating at the time of the accident.[50] Further:
(a) It was never put to Ms Mackay nor, indeed, put in dispute in the course of the application, that Ms Mackay was facing anything other than a green light as she was proceeding through the intersection;
(b) Mr Winston, in his answers to interrogatories, conceded that he, when he proceeded through the intersection, was facing a red light.[51] No other evidence was adduced by him that this was not the case.
(c) No evidence was adduced by Mr Winston that the three witnesses to the accident identified in the Police Incident Report were not available to give evidence, and that the steps referred to in paragraph 65 of Ms Bourke’s affidavit were unsuccessful. Nor was any evidence adduced that the memories of the witnesses were impaired.
[50]PFACB 191
[51]Mr Winston’s answer to the plaintiff’s Interrogatory 4, PFACB 369
The traffic-light sequencing
108Mr Winston did not seek information from the Department of Transport in respect to the traffic-light sequencing until 16 March 2021.[52] That is, a little short of five years after the Serious Injury Application was served.
[52]DACB 164
109I accept that the traffic-sequencing information sought by Mr Winston is not available. However, as I have previously noted:
(a) that Ms Mackay says she was facing a green light is not in issue;
(b) that Mr Winston concedes he was facing a red light is not in issue.
110I find myself in the same position as J Forrest J in Davies v Nilsen. It was never adequately explained to me by Mr Batten how the allegations of contributory negligence were to be seriously advanced and how the light-sequencing records would be of any probative value. When I sought specifics from Mr Batten, he said “[i]t’s just not relevant.”[53] Further, he said that as “documentation in respect of the sequence no longer exists” that was “as high as we can put it”.[54]
[53]T148, L13-14
[54]T148, L24-26
The destruction of Victoria Police records
111Mr Winston said he sought the complete records of Victoria Police by way of an Order 42A subpoena dated 15 March 2021.[55] Mr Winston said he was advised by Victoria Police, by letter dated 24 March 2021[56] that, apart from the Police Incident Report, no further material exists, as it had been since destroyed in accordance with the previous Victoria Police Destruction/Retention Policy.
[55]Affidavit of Ms Mary-Anne Bourke, paragraph [6] at DACB 148
[56]DACB 159
112I accept the further Victoria Police materials have been destroyed and this may be to some prejudice on behalf of Mr Winston. For example, the existence of the police notes, or any statements which may have been taken at the time, may provide a basis at trial for allegations of either a prior consistent or prior inconsistent statement.
113However:
(a) the two parties are available to give evidence and be cross-examined;
(b) no evidence was adduced that the three witnesses identified in the Police Incident Report, and paragraph 65 of Ms Bourke’s affidavit, were not available to give evidence, or that their memories of the accident have been in any way impaired.
The existence of a “potential witness”
114The final ground of specific prejudice relied upon by Mr Winston arises out of cross-examination of Ms Mackay in the course of the application.
115Ms Mackay said, on the day of the accident, she spoke with one of the police officers who attended. She said she had been told by the police officer that there was another motorist who saw the accident and they were obtaining a statement from him. Ms Mackay did not know who that was, or have any details.
116As I have noted previously, there are three witnesses identified in the Police Incident Report.
117While one of those witnesses was said to be a passenger, the role of the other two was not identified. Again, as previously noted, Mr Winston did not assert:
(a) that the witnesses identified in the Police Incident Report had not been located;
(b) that the witnesses identified in the Police Incident Report had not been interviewed;
(c) that the witnesses identified in the Police Incident Report were not available;
(d) that the witnesses identified had any impairment of their memories about the accident.
118The final ground of specific prejudice relied upon by Mr Winston is, at best, uncertain. I accept that, if there was a further witness who was not identified in the Police Incident Report and who now could no longer be identified, that would potentially be prejudicial to Mr Winston. However, there are three witnesses identified in the Police Incident Report. They have been named. No evidence was adduced that they were not interviewed, as foreshadowed in paragraph 65 of Ms Bourke’s affidavit. It is speculation that the person who Ms Mackay was talking about was not one of those three people.
General prejudice
119Mr Winston said that there was general prejudice to him. He said the general prejudice arose because:
(a) the delay of seventeen years since the accident was, of itself, evidence of inordinate delay and potential witness memory loss;
(b) the loss of the opportunity for him to investigate the veracity, from a common law perspective, of Ms Mackay’s injury, loss and damage, particularly the economic loss component;
(c) the inability to obtain surveillance;
(d) the inability to obtain statements from potential liability witnesses;
(e) the inability to obtain contemporaneous expert opinion, particularly in respect to the plaintiff’s pre‑existing lower back condition now claimed to present her major disability;
(f) the loss of opportunity to contemporaneously investigate the nature and extent of the plaintiff’s business affairs prior to 29 January 2008 and thereafter; and
(g) the loss of opportunity to obtain financial records relating to the plaintiff by legal discovery prior to the 2011 flood.[57]
[57]Defendant’s written submissions, paragraph [60] at pages 12-13
120I accept that Mr Winston does suffer general prejudice by reason of the mere passage of time. This is a well-accepted principle.[58]
[58]See, for example, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Tsiadis v Patterson (2001) 4 VR 114
121I also accept that, by reason of the delay, Mr Winston has not had the opportunity to undertake the forensic analysis which may normally be undertaken. This would include:
(a) surveillance;
(b) the organisation of medico-legal assessments between 2008 and 10 May 2016 (noting that the TAC organised medico-legal assessments in 2006-2007);
(c) an assessment of Ms Mackay’s children’s entertainment business, particularly between 2008 and 10 May 2016.
122The clock cannot be turned back in respect to surveillance which may have been undertaken by Mr Winston prior to 10 May 2016. In circumstances where Ms Mackay’s honesty is in issue, I accept this is a matter of prejudice to Mr Winston.
123I also accept that Mr Winston did not have the opportunity to obtain medico-legal assessments between 2008 and 10 May 2016. I accept Mr Winston suffers a level of prejudice because of this. However, I note that the TAC had organised medico-legal assessments in 2006-2007 and had received treating-doctor reports in the period between 2008 and 2016. I also note that the TAC held sufficient material upon which to grant Ms Mackay a serious injury certificate.
124In the materials before the Court, there were some twenty medical reports.[59] There was also a schedule of clinical records from numerous medical clinics where Ms Mackay had attended for treatment.[60] No issue was taken in the course of the application that these records were defective or had been, by reason of the effluxion of time, destroyed, or that any of the medical practitioners who had provided reports were no longer available to give evidence. There is a large volume of medical evidence available to be tested at trial.
[59]PFACB 255-361
[60]PFACB 362
125Referring, now, specifically to paragraph (e) of Mr Winston’s grounds of general prejudice. I note that Mr O’Brien, orthopaedic surgeon, who assessed Ms Mackay on behalf of the TAC on two occasions in 2006, obtained a history from Ms Mackay of the work-related back injury suffered at Westpac.[61] It is clear that the TAC, as far back as 8 February 2006, had obtained medical opinion which touched upon the back injury sustained by Ms Mackay in the course of her employment.
[61]PFACB 345-346
126Referring, now, to Ms Mackay’s business operations. At paragraph 14 of Ms Bourke’s affidavit, sworn 4 August 2022, it is conceded that Mr Winston has been provided with Ms Mackay’s:
(a) personal taxation returns for years 2003 to 2019;
(b) payment summaries for the years 2004 to 2019;
(c) notices of assessment for the years 2001 to 2011.
127Ms Bourke said that Ms Mackay was yet to provide complete financial records for her children’s entertainment business.[62] When questioned about the availability of her financial records for the children’s entertainment business, Ms Mackay said she had all of the records for all the invoicing. She said these records set out the relevant dates and times for the work which she had undertaken.[63]
[62]DACB 149 at paragraph [16]
[63]T48, L30 – T49, L7
128Ms Mackay said she ceased operating the business some time in 2015.
129In the course of the application, Ms Mackay was subject to significant cross-examination in respect to the work which she had undertaken in her children’s entertainment business.[64] It was apparent Mr Winston had sourced a good deal of information relating to that enterprise.
[64]See, for example, T43–T51 and T55–T62
130Referring, now, to paragraph (g) of Mr Winston’s items of general prejudice. Mr Winston asserted that financial records had been destroyed in the 2011 flood. On analysis of Ms Mackay’s evidence, it was unopened letters in Safeway bags which were damaged.[65]
[65]T99, L5-27
The extent to which Ms Mackay acted promptly and reasonably once she knew of her right to pursue a common law action for damages
131I accept that Ms Mackay did not pursue a common law claim promptly after receiving legal advice in May 2008. That is clear. Ms Mackay wrongly formed the view that her injuries were not of sufficient severity to get through the gateway requirements of the TAA. This led to the delay between the expiration of the limitation period and Ms Mackay’s attendance at Nowicki Carbone.
132I accept that, once Ms Mackay was advised by Ms Broughton that she may have a viable common law claim, and of the six-year limitation period, she then acted promptly and reasonably.
133However, I accept this does not absolve Ms Mackay of what, I consider to be, the reasonable criticism by Mr Winston in respect to that aspect of the delay which occurred prior to February 2014.
What, if any, weight should I give to a potential claim by Ms Mackay against her former or current lawyers?
134In the course of the application, Ms Mackay was asked whether she had brought, or was contemplating bringing, proceedings against Maurice Blackburn and/or Nowicki Carbone. While Ms Mackay said that she had not brought proceedings, and that she was not contemplating such proceedings,[66] this is a relevant consideration. As the Court of Appeal in Griffiths v Nillumbik Shire Council said:
“… The existence of a cause of action against a solicitor is a relevant matter; but only in determining if it is appropriate to refuse an application to extend time. Two examples demonstrate this point. In Tsiadis the right to sue a solicitor for negligent advice was held to be a relevant factor to the exercise of the discretion to refuse the application but not one which in that case ultimately precluded its exercise in favour of the applicant. On the other hand, in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd, the cause of action against the solicitor was held to be sufficiently strong that the bar imposed by the limitation period was not disturbed by a discretionary extension of time.”[67]
(Footnote omitted.)
[66]T100, L13-22
[67](Supra) at paragraph [82]
135In respect to a cause of action against Maurice Blackburn, I make the following observations:
(a) I accept Mr Cumming did provide advice to Ms Mackay in respect to a potential common law claim. That is, should she satisfy the gateway provisions, she could sue Mr Winston;
(b) Mr Cumming did send, to Ms Mackay, letters of advice and a brochure. In particular, the letter 14 May 2008 expressly referred to serious injury certification, common law damages and a six-year limitation period. Such advice was repeated in the letter 6 October 2009;
(c) Ms Mackay did not return the signed disclosure statement to Maurice Blackburn. She did not, subsequent to June 2008, respond to further correspondence forwarded by Maurice Blackburn. A retainer with Maurice Blackburn was never established;
(d) The letters which were forwarded by Maurice Blackburn were of a type which a prudent personal injuries lawyer would provide in the circumstances.
136In the circumstances where a retainer was not established and where appropriate reporting correspondence had been forwarded, it is difficult to see that there exists a possible cause of action against Maurice Blackburn.
137Referring, now, to a potential action against Nowicki Carbone/Slater and Gordon.
138I accept that, from Ms Mackay’s perspective, once she had retained Nowicki Carbone, she formed the view that they had matters in hand. It was not established that Ms Mackay had contributed to the delay.
139In respect to Nowicki Carbone, in the two-year and two-month period between the establishment of the retainer and the lodging of the serious injury application, I accept that:
(a) Nowicki Carbone did undertake appropriate investigations and the preparation of Ms Mackay’s serious injury application;
(b) ultimately, the Serious Injury Application was served;
(c) there may have been some delay which could have been avoided with more expeditious action.
140Mr Winston complained of an eight-year delay by Nowicki Carbone.[68] For reasons set out earlier in this judgment, I do not consider this is correct. Further, as set out in paragraph 68 of Ms Bourke’s first affidavit,[69] the TAC agreed to hold the Originating Motion which sought relief pursuant to s23A of the LAA “in abeyance”. No point was taken by the TAC/Mr Winston at that time.
[68]T84, L11-14
[69]DACB 12
141I do not consider there is sufficient basis to refuse Ms Mackay’s application solely based on the existence of a potential cause of action against either Maurice Blackburn or Nowicki Carbone/Slater and Gordon.
My synthesis of the competing considerations
142It is Ms Mackay who bears the onus of establishing that it is just and reasonable for the Court to order the limitation period be extended.[70]
[70]See, for example, J Forrest J in Davies v Nilsen (supra) at paragraph [44]; Griffiths v Nillumbik Shire Council (supra) at paragraph [68]; and Prince Alfred College Incorporated v ADC [2016] 258 CLR 134 at paragraph [99].
143I must consider whether there can be a fair trial conducted on the merits.[71] A fair trial does not mean a perfect trial; rather, one that is an acceptably fair trial.[72]
[71]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraph [79]
[72]WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 at paragraph [94]
144Starting, firstly, with Ms Mackay’s knowledge of her common law rights. Ms Mackay said that she was “ignorant” of these rights prior to February 2014. I do not accept this. I accept Mr Winston’s assertions that she was not ignorant of her rights. She had received advice from Mr Cumming, but wrongly formed the view she did not have a viable case. This finding tends against the exercise of my discretion in her favour. However, it is not necessarily fatal to the application.
145Moving to Ms Mackay’s knowledge of the limitation period. Mr Winston said Ms Mackay was aware of the six-year limitation period prior to February 2014. I do not accept that Ms Mackay had knowledge of the six-year limitation period until advised by Ms Broughton. However, I do not consider this would have made any difference in the timing of the lodging of her serious injury application. She did not consider she had a viable case.
146I accept that, in this case, there is a long delay. Mr Winston said the delay was “inordinate” and “inexcusable”. He referred to a seventeen-year delay. Ms Mackay said the delay was not this long, nor was it, of itself, a basis to refuse her application. In reality, the delay was eleven years and one month from the accrual of the cause of action, and five years and one month from the expiry of the limitation period. I do not accept that the length of the delay, in itself, is sufficient to preclude Ms Mackay from succeeding. It is, however, a relevant factor in the exercise of my discretion.
147Moving, now, to the specific prejudice claimed by Mr Winston. He relied upon three specific grounds. Ms Mackay said that Mr Winston conceded he ran a red light. She said none of the grounds alleged changed the facts and there was no specific prejudice.[73] I found many aspects of Mr Winston’s assertions in respect to specific prejudice unconvincing. Mr Winston conceded he drove through a red light. The failure by Mr Winston to adduce evidence as to why the traffic sequence was of relevance, or to adduce evidence that there was difficulty with the availability or recollection of the witnesses identified in the Police Incident Report, reduces the force of Mr Winston’s submission in respect to prejudice relating to liability.
[73]T159, L14 – T162, L3
148I accept there may be some prejudice suffered by Mr Winston by reason of the destruction of police records. I am not, however, satisfied that Mr Winston would be denied an acceptably fair hearing in respect to issues of breach/contributory negligence in circumstances where:
· Ms Mackay is available to be cross-examined.
· Mr Winston is available to give evidence.
· No evidence was adduced that the three witnesses identified in the Police Incident Report were not available, nor their memories impaired.
· The Police Incident Report said the traffic lights were operating.
· In his answers to interrogatories, he conceded he drove through a red light.
149Moving, now, to general prejudice. I accept there is prejudice to Mr Winston by the mere effluxion of time. This is conceded by Ms Mackay.[74]
[74]T162, L4-8
150I also accept Mr Winston’s inability to undertake surveillance prior to 10 May 2016, in the context of this case, is a genuine concern to him, and he has suffered prejudice. However, it was apparent from the extensive cross-examination of Ms Mackay, that Mr Winston had obtained a good deal of material in respect to the operation of Ms Mackay’s children’s entertainment business and life generally. Further, Mr Winston has had the opportunity, from 10 May 2016 to the present time, to have surveillance undertaken.
151Moving, now, to the medical evidence. Ms Mackay said there was no prejudice to Mr Winston. There was no evidence that any of Ms Mackay’s treating doctors/psychologists, or any of the medico-legal witnesses who have provided reports in the matter, are no longer available. There are a great number of medical reports, from both the plaintiff’s treating medical practitioners and medico-legal assessors. These reports date back to 2006.[75] Indeed, Mr Batten said that he did not submit that Mr Winston was unaware of Ms Mackay’s medical condition.[76]
[75]There were some twenty medical reports tendered in evidence by the plaintiff. See PFACB 255 to PFACB 361.
[76]T183, L6-8
152Ms Mackay tendered in evidence a schedule setting out a list of clinical records to be relied upon.[77] No challenge was made by Mr Winston that the schedule of clinical records was in any way deficient. No evidence was adduced that any relevant clinical records for Ms Mackay were no longer available. What Mr Winston said was, that he had been denied the opportunity to test the veracity of Ms Mackay’s presentation because he was denied the opportunity to obtain medico-legal assessments.[78]
[77]PFACB 362
[78]T183, L9-12
153I accept that, for the period between 2008 and 10 May 2016, Mr Winston did not have the opportunity to organise medico-legal assessments. However, Mr Winston has had the opportunity to organise such assessments subsequent to 10 May 2016. Further, TAC had sufficient medical evidence upon which to make a determination of serious injury in April 2019.
154That the TAC, in the period between the accident and 10 May 2016, paid for at least some of Ms Mackay’s medical expenses, was not put into dispute. Ms Mackay said that this tended against prejudice to Mr Winston.
155Moving, now, to Ms Mackay’s claim for loss of earnings/loss of earning capacity. Mr Winston said that he had not been able to undertake the necessary analysis of Ms Mackay’s children’s entertainment business and the circumstances of her economic loss claim. Ms Mackay said there was no prejudice. Ms Mackay was extensively cross-examined in respect to the work which she had undertaken as a children’s entertainer between the accident and 2015, when she ceased that business. Ms Mackay said her taxation records had been provided to Mr Winston. Those materials are set out in Ms Bourke’s affidavit.[79] Mr Winston said Ms Mackay had not provided the complete financial records for her children’s entertainment business and that was prejudicial. Ms Mackay said she had retained those materials, and they were available, and there was no prejudice.[80] I do not accept that Mr Winston is precluded from undertaking a forensic assessment of Ms Mackay’s financial records.
[79]DACB 149 at paragraph [14]
[80]T181, L28 – T182, L2
156I have not identified any specific prejudice or matters raised by Mr Winston under general prejudice which I consider would preclude an acceptably fair trial. However, that is not the end of it. I accept that there is ample authority that general or presumptive prejudice may be, in itself, sufficient to justify refusing Ms Mackay’s application. I also accept that there is potential prejudice to Ms Mackay should the application be refused.[81]
[81]See Ms Mackay’s written submissions at paragraph [32] and the various authorities referred to.
157While I accept there is an element of oppression involved in allowing an action so long after the circumstances which gave rise to it have passed,[82] I do not accept that the general presumptive prejudice in this case, given my analysis, is sufficient to justify refusing Ms Mackay’s application.
[82]See, for example, Prince Alfred College (supra) at paragraph [106] (per French CJ, Kiefel, Bell, Keane and Nettle JJ)
Conclusion
158Having undertaken the synthesis of the competing considerations, and while there has been a considerable delay, I do not accept that the extent of any actual or potential prejudice is sufficient to preclude the Court from extending time on the grounds that it is not just and reasonable to do so.
159I grant the plaintiff’s application.
160I shall hear from the parties as to costs.
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