McDonald v Transport Accident Commission
[2018] VCC 1598
•4 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-01921
| Shannon McDonald | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2018 | |
DATE OF RULING: | 4 October 2018 | |
CASE MAY BE CITED AS: | McDonald v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1598 | |
RULING
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Catchwords: Catchwords: LIMITATION OF ACTIONS – application under s.23A – effect of Transport Accident Act 1985 upon entitlement of plaintiff to commence proceedings – relevance of specific and general prejudice.
Legislation Cited: Transport Accident Act 1986 (Vic); Limitation of Actions Act 1958 (Vic).
Cases Cited:Davis v Nilsen [2015] VSC 584; Taylor v Western General Hospital [1986] VR 250; Bell v SPC Limited [1988] VR 123; Palmer v TAC [2017] CCV 259; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and Ms C Spitaleri | Maurice Blackburn |
| For the Defendant | Ms R Annesley QC and Ms B Myers | Transport Accident Commission |
HIS HONOUR:
1 On 30 September 1999 the plaintiff, who had just turned 18, was involved in a transport accident in which a vehicle being driven by Mark Heron, in which the plaintiff was travelling as a front seat passenger, came into collision with another vehicle at the intersection of Ferntree Gully Road and Watsons Road in Glen Waverley.
2 There is no issue that the injuries sustained by the plaintiff in the transport accident are serious within the meaning of the Transport Accident Act.
3 The plaintiff now brings an application against the Transport Accident Commission pursuant to s. 23A of the Limitation of Actions Act (‘Limitations Act’) seeking an extension of time within which proceedings may be instituted against Heron.
4 Not withstanding that this application is made prior to the issuing of a Statement of Claim and the filing of a Defence, the parties are in agreement that in dealing with this application I should do so by undertaking the analysis required in considering applications made pursuant to the provisions of s 23A the Limitations Act.
5 At the time which this hearing commenced the defendant, rightfully in my opinion, raised the issue that no proposed Statement of Claim had been served by the plaintiff. Accordingly, I stood the matter down and required a draft Statement of Claim to be prepared for the purpose of clarifying the identity of the proposed defendants and the nature of the pleadings.
6 Upon the filing of the draft Statement of Claim it became clear that the only defendant to the proceeding is to be Heron.
7 I then invited the defendant to file a draft Defence. In extending the invitation, I made it clear that the defendant would be given the time it considered necessary for the creation of that document. The defendant chose not to file a draft Defence but nevertheless indicated that the primary issue relevant to liability involved the potential of a “Volenti” pleading. In addition, the defendant intended to take issue with the causal relationship between the transport accident and the injury to the plaintiff’s left ankle.
8 In my determination of this application I will analyse the issues on the basis of:
(i) the plaintiff’s draft Statement of Claim; and
(ii) the position of the defendant to which I referred above, together with that in the written submissions filed on behalf of the defendant in this instance.
Applicable Principles
9 In Davis v Nilsen[1] J Forrest J succinctly made the following statement as to the issues relevant to the determination of an application under section 23A the Limitations Act, namely:
[1][2015] VSC 584 para 43.
“The principles applicable to an application for extension of time are well known and it is not necessary to recite them in any detail. It suffices to say the following:
(a) A claim arising out of a transport accident is statute-barred six years after the date of accrual of a cause of action – invariably the date of the accident
(b) A limitation period is imposed by the legislature for good reasons of public policy and should not be regarded as a mere signpost.
(c) Having said that, since 1973, in this State, the legislature has seen fit to enable a claimant, in a case where it is just and equitable to do so, to apply for an extension of time to bring their claim. The provision, s 23A, is beneficial and provides the Court with a wide discretion as to whether an extension of time ought to be granted.
(d) Whilst the primary consideration in a s 23A application is whether it is ‘just and reasonable’ to extend the period in which to bring a claim, the legislature has identified six non-exhaustive criteria to be considered by a court in such an application –(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.
(e) The plaintiff carries the onus of establishing that it is just and reasonable to grant an extension of time.
(f) The right of a plaintiff to bring a case against a former solicitor for failing to initiate a proceeding within time is a relevant consideration in determining whether to grant an extension of time the weight to be given to this consideration depends upon the circumstances of the case.
The task of the trial judge in determining such an application is not unlike that of the imposition of a sentence in a criminal trial: the synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion.”
10 To the already comprehensive list referred to by J Forrest J I am inclined to add only two additional statements, namely:
(i) the plaintiff’s prospect of success in the proposed proceedings is not a relevant factor, subject to the Court being satisfied that the plaintiff has a cause of action which does not amount to an abuse of process;[2] and
(ii) the question posed by s.23A of the Limitations Act is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of sub(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them.[3]
[2]Taylor v Western General Hospital [1986] VR 250. I am satisfied in the present case that the plaintiff has established that the cause of action pleaded against each of the defendants does not amount to an abuse of process.
[3]Bell v SPC Limited [1988] VR 123.
11 In the course of considering generally the circumstances of the case, I find it convenient to address the issues raised by the defendant as to the plaintiff’s credibility and reliability as a witness and secondly to analyse the relevant matters raised by the provisions of s.23A(3) of the Limitations Act. [4]
[4]Sub-paragraphs (3)(c) and (3)(d) of s23A have no application given the circumstances of the present case.
12 The starting point for that analysis involves a fact about which there is no issue, namely that the period which has elapsed between the accident and the commencement of this application is some 17 years and 7 months, being the period which expired between the transport accident on 30 September 1999 and the date upon which the plaintiff filed the Originating Motion dated 4 May 2017.
13 Before turning to the specific elements identified by the Limitations Act as being relevant to this application, it is appropriate that I make findings as to the challenge made by the defendant as to the plaintiff’s credibility and reliability given the potential influence which both of these issues may have upon the decision making process required of me in assessing the reasons for the delay associated with the commencement of this proceeding.
Analysis of the issues identified by the defendant relevant to the credibility/reliability of the plaintiff as a witness
14 Essentially the evidence given by the plaintiff as to the condition of his ankle following the transport accident may be summarised as follows:
(i) in the course of the transport accident contact was made between the plaintiff’s left lower limb and the dashboard of the vehicle. That contact resulted in significant fractures of the left femur, however no injury to the left ankle was diagnosed at that time. It follows that the plaintiff received no treatment for any such injury;
(ii) within a short time of the accident the plaintiff developed symptoms in his ankle which he described as being:
· largely random in the timing of their onset;[5] and
[5] T 20 L22.
· essentially confined to pain secondary to incidents of rolling his ankle,[6] the cause of which the plaintiff ascribed to a weakness in his ankle stemming from the transport accident, which he did not consider to be associated with a frank injury.[7]
[6] T 21 L 23.
[7] T 21 L 10.
(iii) In June 2011 the plaintiff consulted a rheumatologist Dr Lionel Schachna in respect of lower thoracic pain. In the course of that consultation the plaintiff was advised that he presented with shortening in his left leg.
(iv) In March 2015, after working a 12 hour day, the plaintiff found himself limping. The plaintiff described the onset of those symptoms in the following terms
“I had previously felt pain and had a tendency to roll my left ankle for as long as I could remember but it had never been so bad as to cause me to limp” … “In mid-2016, during a midyear study break, I took on a labouring job to make some money during the break. However after a long day I again found myself limping and in pain and I saw Dr Rimi Roper”[8]
[8] the plaintiff consulted Dr Roper on 7 July 2016.
(v) the plaintiff described the symptoms which he first experienced in 2015 as being different both in nature and longevity to those associated with the incidents when he went over on his ankle,[9] and said that he did not associate the pain which he commenced to experience 2015 with his transport accident;[10]
[9] T 43 L24 – 44 L21.
[10] T 44 - L22.
(vi) On 7 July 2016 Dr Roper compiled the following note as to the plaintiff’s presentation relevant to his 1999 motor vehicle accident:
“since this injury he has had chronic left ankle pain post activity. He was told by his rheumatologist that left leg (sic) is shorter as a result of femur # (sic) and that he may developed left ankle issues as the result of the left length discrepancy”
(vii) The plaintiff’s consultation with Dr Roper was his first consultation with a medical practitioner in respect of any symptoms in his left ankle following the transport accident;
(viii) On 5 November 2017 the plaintiff presented to an orthopaedic surgeon Mr Reza Salleh with a history of struggling with prolonged activity which Mr Salleh diagnosed as arising from the subtalar joint of his left ankle;
(ix) In a report relevant to that presentation Mr Salleh details the history to the effect that the plaintiff’s:
“left foot also went through the dashboard and he has since had pain and instability in his ankle” (‘the Salleh history’).[11]
(x) the plaintiff said that it was upon consulting Mr Salleh that he first realised he had a serious problem in his ankle.[12]
[11] DCB 284.
[12] T 46L-15.
15 It is put on behalf of the defendant that the plaintiff’s credit is impugned by reason of inconsistency between his viva voce evidence, his affidavit evidence and histories provided by the plaintiff to various medical practitioners.
16 As I understand the defendant’s position, it is put that the Salleh history involves an admission by the plaintiff that he suffered from a condition which was responsible for instability in his ankle to a degree or regularity inconsistent with that described by him in his evidence.
17 When the totality of the plaintiff’s evidence is taken into account I do not accept the defendant’s assertion that the history recorded by Mr Salleh (both as to the severity of the plaintiff’s condition or its duration) is inconsistent with the plaintiff’s sworn evidence.
18 I make that statement taking into account the nature and purpose for which a history is made in medical records. Such a history is generated as an aide memoir and not to record matters with significant precision. It follows that caution should be adopted in preferring statements in medical histories to sworn evidence.[13]
[13] See the plaintiff's explanation as to his relevant history at T 24 L15 - T 25 L28.
19 Given the brevity and lack of particularity in the Salleh history, I do not find that history to be inconsistent with the description by the plaintiff of the incidents and symptoms associated with his recurring condition of rolling his ankle.
20 A similar comment and an identical analysis applies to the medical record of Dr Roper of 5 July 2016, insofar as that note records the presence of chronic left ankle pain.
21 I do not find it surprising that a medical practitioner might make a shorthand notation of chronic ankle pain post activity to describe the long-standing recurring process which involved the plaintiff going over on his ankle and experiencing the pain associated with that activity to which he referred in his evidence.
22 In my opinion, my analysis above is bolstered by the comment which the plaintiff made to Dr Roper as to his recollection of the advice given to him by Dr Schachna in 2011. That history is clearly consistent with:
· the plaintiff presenting to Dr Schachna with no complaint of an injury or condition in his ankle and being advised that such a condition may manifest itself at some stage in the future given the disparity in his leg length; and
· the plaintiff’s evidence as to the way he regarded his condition namely as not involving an injury per se.
23 In his notes of 5 July 2016, Dr Roper records the plaintiff as providing a history that he had been advised by his rheumatologist that he may develop left ankle issues.
24 In her closing address Ms Annesley QC pointed to the discrepancy between the plaintiff’s description of the advice given to him by his rheumatologist, which the plaintiff said was general in nature, and that contained in the report of Dr Roper which made specific reference to the left ankle.
25 Whilst I accept the validity of that point, which does call into question the plaintiff’s reliability on that issue, my general impression of the plaintiff was that he was a reliable witness and a consistent historian.
26 Further, the issue in question is really of no moment having regard to the fact that at the time which the conversation occurred between the plaintiff and his rheumatologist in 2011 it is clear that:
(i) the plaintiff was not consulting the rheumatologist in respect of any symptoms in his left ankle; and
(ii) the advice that the plaintiff was given, namely that “he might develop left ankle issues as the result of the leg length discrepancy” is so nebulous as to:
· the nature or severity of the symptoms which might develop; or
· the timing of the onset of any such symptoms;
that it could not reasonably be suggested it would have warranted some action or investigation by the plaintiff.
27 In closing submissions the defendant asserted that:
(i) the delay by the plaintiff in this instance is incapable of being explained by the presence of some hidden causative element or consequence of the transport accident which manifested itself many years later;
(ii) sufficient facts were known by the plaintiff to put him on notice that the injury to his left ankle was caused by the act or omission of the defendant; and
(iii) it could not be said that the plaintiff was not aware of his injuries.
28 In asserting that position the defendant relies upon the plaintiff’s evidence that he presented with the condition of pain and weakness in his ankle which dated back to the transport accident in respect of which he was well aware the transport accident was the cause.
29 Whilst there is no issue that the plaintiff presented with a tendency to roll his ankle and pain secondary to that tendency for many years following the accident, which conditions the plaintiff recognise were associated with the accident, I accept the plaintiff’s evidence that:
(i) it was in 2015, in the incident to which I have previously referred, that the plaintiff first experienced symptoms in his ankle which persisted for a significant period of time and were not secondary to rolling his ankle; and
(ii) it was not until 2016 that that condition developed such that the plaintiff thought it necessary to consult a medical practitioner as to the condition of his left ankle.
30 I am satisfied that this evidence is persuasive and reliable having regard to the combination of:
· the absence of any diagnosis that the plaintiff had suffered an injury to his left ankle by reason of the transport accident prior to that date; and
· the plaintiff’s history of seeking no medical investigation or treatment for his left ankle prior to 2015.
31 Further, there is no issue that the first occasion upon which the plaintiff became aware that he had suffered a high-grade disruption of the lateral ligaments, together with a fracture in his subtalar joint of his left foot, was when that diagnosis was made by Mr Salleh as a result of an MRI scan undertaken on 27 July 2016.
32 It is clear that the foundation for the position taken by the defendant to which I have referred above is the assertion made by the defendant that the condition with which the plaintiff presented to Mr Salleh had been present since the transport accident and was responsible for the symptoms about which the plaintiff was well aware, namely his tendency of his foot to give way and the pain associated with that tendency.
33 In my opinion a fair analysis of the totality of the plaintiff’s evidence upon this issue is that:
(i) whilst the plaintiff was aware of a weakness in his ankle and his tendency to experience pain upon rolling his ankle, he did not regard that processes involving an injury per se but rather a weakness which in my opinion is appropriately described as being a chronic nuisance; and
(ii) that over time, commencing in about 2015, the plaintiff commenced to develop symptoms of pain which were:
· not associated with the aftermath of rolling his ankle; and
· caused by his need to spend longer periods of time on his feet in the course of the performance of his work,
which symptoms the plaintiff first experienced with any degree of significance in 2015 and which manifested themselves with greater regularity and significance in 2016.
34 Further, although there is no specific evidence on this point, I am satisfied that the presence of the condition responsible for the symptoms which manifested themselves in 2015 was not readily observable in x-rays of the plaintiff’s ankle.
35 In making that statement I rely upon the facts that:
a) when the plaintiff presented to Mr Salleh with recent x-rays, those films did not reveal the presence of the underlying injury;
b) it was clearly the opinion of Mr Salleh that a more detailed examination of the ankle joint than that generated from an x-ray was required and for that reason MRI imaging was requested; and
c) it was only upon receiving the results of the MRI scan that Mr Salleh arrived at a diagnosis that an injury warranting operative treatment had been occasioned to the plaintiff’s ankle in the 1999 transport accident.
36 For the reasons set out above, I am satisfied that:
· the plaintiff was not aware that he had suffered an injury of any significance to his left ankle at any time prior to the diagnosis by Mr Salleh; and
· it was not unreasonable of the plaintiff to delay seeking treatment for his symptoms prior to 2015 (and probably as late as the date upon which the plaintiff first consulted Dr Roper), by which time the plaintiff realised that his symptoms may have a significant influence upon his capacity for activity and work.
The plaintiff’s awareness of his right to pursue common law damages
37 It is put by the defendant that the plaintiff’s evidence that he was not aware of the existence of his entitlement to commence a proceeding claiming damages at common law should not be accepted.
38 It is asserted that it “beggars belief” that the plaintiff could have been unaware of his common law right to claim damages given the knowledge available to the community at large, including advertising, which should have alerted the plaintiff to the existence of that right.
39 Largely my analysis as to this point is identical to that which I explained in Palmer v TAC,[14] namely that that position is completely without merit for the following reasons:
[14] [2017] CCV 259.
(i) Firstly, it is incorrect to say that at any relevant time the plaintiff had a common law right to commence a proceeding claiming damages for the injuries suffered by him in the transport accident. That right did not come into existence until the plaintiff established that the transport accident had caused serious injury to him as that term is defined by the provisions of the Transport Accident Act;
(ii) Secondly, the plaintiff’s first affidavit which discloses the basis upon which he asserted that he had suffered a serious injury in the transport accident makes it clear that while he suffered significant traumatic injuries in the transport accident, once those injuries had stabilised they had no real impact upon his life or lifestyle until the symptoms in his left ankle manifested themselves in 2015.
It follows that, in my opinion, had the plaintiff consulted a solicitor for the purpose of obtaining advice as to his entitlement to commence a proceeding claiming common law damages prior to 2015, it is likely he would have been advised that having regard to the degree to which he had recovered from his initial plethora of substantial physical injuries he did not present with an impairment of body function significant enough to meet the definition of serious injury;
(iii) Thirdly, the plaintiff’s evidence that he was not aware of his right to commence a proceeding claiming common law damages is supported by the fact that notwithstanding the onset of his symptoms in March 2015, he took no action to seek legal advice until it was suggested by his physiotherapist that he should approach Maurice Blackburn for the purpose of enquiring as to whether he could recover out-of-pocket expenses associated with the treatment he was receiving at that time;
(iv) Fourthly, whilst the defendant points to the plaintiff’s knowledge of the no-fault benefits available to him under the Transport Accident Act, given the complete disconnect between:
a) the no-fault arm of the Transport Accident Commission and the services which it supplies in terms of medical and like expenses; and
b) the concept of common law negligence and entitlement to recover damages,
I do not find it unlikely that a recipient of no fault payments under the Transport Accident Act may not be aware of the existence of his entitlement to pursue an additional remedy in the presence of negligence.
If anything, I find it more likely that the existence of a no-fault scheme may lead a person who is unfamiliar with the law to take the view that no other remedy is available to him.
40 In this instance, the plaintiff’s evidence that he was unaware of his common law rights until he sought advice from Maurice Blackburn in October 2017 was not challenged. Nor was the opportunity taken to cross examine the plaintiff as to conversations he might have had with anyone as to whether he should seek advice about those rights.
41 In those circumstances I am of the opinion that there is no merit in the position put by the defendant that the plaintiff should have adduced evidence from his mother or any other person to confirm the unchallenged position that he had no knowledge of his common law rights.
42 For these reasons:
· I am satisfied that I should accept the plaintiff’s evidence that he was unaware of the existence of any common law right, or limitation period which applied to that right, until he first sought legal advice from Maurice Blackburn in October 2017 and that there was no significant delay on behalf of the plaintiff in seeking that advice or commencing this application; and
· I am further satisfied that the plaintiff’s delay in seeking treatment is explained by his lack of significant symptoms until he developed the symptoms which manifested themselves in 2015 – 2016, and there was no significant delay by the plaintiff in seeking treatment upon his symptoms progressing to a state in which they required treatment.
43 I will now analyse the matters raised by the provisions of s.23A(3) of the Limitations Act.[15]
[15]Sub-paragraphs (3)(c) and (3)(d) of s23A have no application given the circumstances of the present case.
The Length of, and Reasons for, the Delay on the Part of the Plaintiff
44 There is no issue that the delay in this instance extends for a period between the date of the subject accident on 30 September 1999 and the filing of the present application.
45 On any view this is an extremely lengthy delay. That delay is however largely explained by the fact that the plaintiff was not aware that he had suffered any significant injury to his left ankle in the transport accident.
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
46 The position taken by the defendant as to this issue is as follows:
(i) Firstly, that the plaintiff by reason of the disability and inconvenience associated with his injuries should have been motivated to take steps to investigate the existence of, and/or pursue his entitlement to claim common law damages;
(ii) Secondly, that the position taken by the plaintiff that his delay in this instance is, for the most part, explained by the fact that he was unaware of the existence of any common law right or statutory limitation upon the time which he had to exercise such a right until he sought legal advice in 2015, should not be accepted.
47 In reality the defendant’s submissions relevant to this subheading have already been dealt with in my analysis as to the plaintiff’s credit and reliability.
48 For the reasons set out above, I am satisfied that there was no unreasonable delay by the plaintiff in:
(i) seeking treatment which diagnosed the presence of the injury to his ankle; or
(ii) consulting solicitors as to his entitlement to commence the present claim.
The extent to which having regard to the delay there is or is likely to be prejudice to the defendant
49 It is submitted on behalf of the defendant that the delay on the part of the plaintiff in pursuing this matter gives rise to such prejudice for the defendant that the plaintiff’s application should be refused.
50 In Brisbane South Regional Health Authority v Taylor,[16] the High Court, in considering an application made under s.31(2) of the Limitation of Actions Act (Qld) 1974, set out the following propositions which were germane to the application made by the plaintiff in that proceeding:
[16](1996) 186 CLR 541.
(i) When an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension;
(ii) That as time goes by, relevant evidence is likely to be lost;
(iii) That it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;
(iv) That people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
(v) That insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period;
(vi) That the final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible;
(vii) That prejudice may be occasioned merely by the effluxion of time;
(viii) That time may well diminish the significance of a known fact or circumstance and that the longer the delay in commencing a proceeding, the more likely it is that a case will be decided on less evidence than was available to the parties at the time in which the cause of action arose.[17]
[17]per McHugh J, at page 551, with whom Dawson J agreed.
51 In Tsiadis v Patterson,[18] the Court of Appeal distinguished the decision of the High Court in Taylor,[19] on the basis that the Queensland legislation which was applicable to that case did not require the Court to concentrate upon all the circumstances in the case, and that the extent to which prejudice arises by reason of the presence of delay is but one of those factors.[20] Indeed, in Tsiadis Buchanan JA observed that:
“… the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. …”
[18](2001) 4 VR 114.
[19](supra).
[20]See the judgment of Buchanan JA, at paragraph 31, with whom Ormiston JA agreed.
52 That having been said, however, there is no doubt that the effluxion of time alone can occasion significant prejudice, the extent of which is often difficult to assess by reason of the fact that it is impossible to identify precisely what evidence has been lost by reason of ever dimming memory.
53 In my analysis of the prejudice to the defendant in this instance I give appropriate weight to all the statements and factors to which I have referred above.
Analysis of Prejudice asserted by the Defendant
54 In its affidavit and submissions the defendant points to the presence of:
(i) Specific prejudice arising by reason of:
a) the absence of lay witnesses and police witnesses from whom relevant evidence may have been accessed as to liability;
b) its reduced ability to challenge the causation of the plaintiff’s ankle injury given the inability of the defendant to have the plaintiff medically examined between 2002 and 2015;
c) the personal position of Heron which arises by reason of the defendant’s current intention to commence recovery proceedings against him in respect of any damages which the plaintiff might recover in this proceeding and
(ii) General prejudice, which is well recognised as arising by reason of the effluxion of time and the inability to recover or even quantify information which has been lost.
55 In my opinion, given:
(i) the investigation of the circumstances of this accident by the Coroner, and the thoroughness of the statements obtained from witnesses in the course of that investigation which are available to the defendant; and
(ii) the criminal trials conducted in this instance against Heron, including the expert evidence assembled by both prosecution and the defence for that purpose,
the defendant is in an unusually strong position to assess the strength of any defence available to it in circumstances in which:
· the plaintiff was travelling as a passenger in the vehicle being driven by Heron; and
· no issue arises that the negligence of Heron was a cause of the plaintiff’s injuries loss and damage.
56 In pressing its position as to prejudice, the defendant asserts that it has lost the opportunity to assemble probative evidence which would have supported the possibility of a “Volenti“ defence in this instance.
57 When Ms Annesley QC was pressed as to the existence of any evidence which would support such a finding she referred to the combination of:
a) the fact that Heron, in the company of another driver, had been doing “wheelies” in a car park in the Dandenong ranges;
b) the post-accident evidence of the presence of illicit substances within Heron’s bloodstream; and
c) the fact that Heron may have been engaged in a “drag race” at the time at which the collision occurred.
58 It is clear that there is no evidence available to the defendant from the plaintiff or from any source to suggest that Heron’s vehicle was engaged in drag racing or that the plaintiff acquiesced to being a passenger in a vehicle which was engaged in that activity.
59 Further, is clear that there is no evidence to suggest that Heron was in any way affected in his ability to manage his vehicle by reason of the ingestion of any illicit substance or that the plaintiff was aware that he was so affected and nonetheless agreed to travel as a passenger in the vehicle driven by Heron.
60 Thirdly, in my opinion to suggest that a defence of Volenti with respect to a collision which occurred at the intersection of Ferntree Gully Road and Watsons Road in Wheelers Hill may be founded upon driving in a car park in the Dandenong ranges when:
a) between that driving and the collision the vehicle had driven down and out of the Dandenong ranges and had stopped for petrol; and
b) there is a complete absence of any evidence of inappropriate driving in the meantime,
is a position totally without merit.
61 Whilst there is no issue that I should give appropriate weight to the fact that it is impossible to identify what has been lost by reason of the denied opportunity to investigate matters when the evidence is fresh, I am satisfied that in doing so I should take into account whether or not the potential issue identified as warranting investigation involved is:
(i) one which was potentially open upon the evidence; or
(ii) one which was based merely upon the application of inventive speculation.
62 In my opinion the potential defence of Volenti in this instance falls into the latter category when the plaintiff’s viva voce evidence in cross examination on this issue in the course of this application is considered in the totality of the evidence available to the defendant.
63 It is put on behalf of the defendant that specific prejudice arises by reason of:
(i) its inability to make contact with all of the witnesses who have provided witness statements relevant to liability or have been identified as potential witnesses upon that issue; and
(ii) the current position of Heron who has indicated his refusal to cooperate.
64 As to the prejudice which arises by reason of the refusal of Heron to cooperate with the Transport Accident Commission, although there is no evidence upon this point, given the combination of:
a) the position of the Transport Accident Commission that it intends to seek recovery from Heron as to any liability it has to the plaintiff; and
b) the obligation upon the Transport Accident Commission in those circumstances to inform Heron of that fact before obtaining any statement from him which might impact upon that right of recovery,
it seems to me that it would have been unlikely that Heron would have agreed to cooperate with the Transport Accident Commission regardless of the time at which the proceedings were instituted, and that the absence of such cooperation may well be accounted for by the intended pursuit of recovery proceedings.
65 Independently of the above statement, given the wealth of evidence available to the Transport Accident Commission as to the issue of liability to which I have already referred, I am satisfied that the failure by Heron to cooperate in this instance imposes no significant prejudice upon the TAC.
66 Whilst I take into account the delay associated with the timing of the commencement of the proposed recovery proceedings by the Transport Accident Commission against Heron, it is appropriate to also take into account:
a) not only the possibility that such recovery proceedings may not be instituted having regard to the absence of any similar recovery proceedings being instituted by the Transport Accident Commission in respect of its liability to pay common law damages to the driver of the other vehicle involved in the collision;
b) but also the culpability of Heron in the cause of the collision which is demonstrated by his criminal convictions which stem solely from the speed at which his vehicle was travelling along Ferntree Gully Road,
in assessing the weight which should be allocated to that issue.
67 For the reasons set out above I am satisfied given:
(i) the amount of evidence relevant to the circumstances in which the subject collision occurred;
(ii) the fact that the plaintiff was travelling as a passenger in Heron’s vehicle; and
(iii) the position conceded by the Transport Accident Commission that Herons driving was a cause of the collision and accordingly injury to the plaintiff,
that the impact of any prejudice which operates to deny the defendant the ability to pursue issues relevant to liability in this instance should be weighted as not being significant.
The defendant’s ability to challenge causation of injury
68 As to the prejudice which arises by reason of the inability of the defendant to investigate the cause of the condition with which the plaintiff presents in his ankle, it seems to me that although there is some merit in the point taken by the defendant, the extent of that prejudice needs to be considered in the context of the reality of the situation, namely:
(i) that although the defendant may choose to assemble evidence which challenges causation, the onus is on the plaintiff to establish that issue;
(ii) that there is no evidence that the plaintiff has been involved in any traumatic incident other than the transport accident, the occurrence of which may impact upon the issue of causation and require separate investigation;
(iii) the defendant has access to all the radiology generated at the time of the accident and subsequently;
(iv) there is no issue that the state of the medical evidence is such as to satisfy the defendant that the plaintiff presents with a discrete impairment to his ankle, the consequences of which are serious within the meaning of the Transport Accident Act; and
(v) Mr O’Brien, in expressing his opinion in which he calls into question the causation of the injury at no time suggests he is in any way hamstrung in expressing that opinion by reason of the passage of time since the transport accident or any absence of other material.
69 In reality for the reasons set out above I am satisfied that the primary prejudice to which the defendant is exposed in this instance involves:
a) General prejudice which operates in the manner described by the High Court in Brisbane South Regional Health Authority v Taylor to which I have previously referred; and
b) Specific prejudice which operates in the manner I have described above.
70 As I observed in the course of my judgement in Palmer v TAC[21] it is extremely difficult to measure the impact associated with general prejudice or specific prejudice in circumstances in which the ability to identify what has been lost is such a nebulous concept.
[21] [2017] CCV 259.
71 In this instance the defendant does have access to an abundance of evidence to enable it to assess its position as to liability which will really be confined, in my opinion, to the defence involving contributory negligence.
72 There is no issue that in considering the effect of prejudice in this instance, the question to be considered is whether or not the relevant prejudice operates so as to make it unlikely that the defendant will be accorded an acceptably fair trial.[22]
[22] see Davies v Nielsen [2015] VSC 584.
73 It follows from my analysis above that I am satisfied that the applicant has satisfied his onus to establish that the relevant prejudice will not operate such as would deny the defendant access to a fair trial by reason of an inability to assemble relevant evidence.
The steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice you may have received.
74 I have dealt with these issue in my previous analysis as set out above.
Conclusion
75 For the reasons set out above, after:
(i) weighing all the competing considerations to which I have referred in the course of my analysis; and
(ii) bearing in mind always that the plaintiff has the onus of persuasion that he should be granted the indulgence sought in this instance;
I am satisfied that it is just and equitable to permit the plaintiff to bring this proceeding out of time, notwithstanding the delay that arises in this instance.
76 I make that finding being satisfied, after giving due weight to all the factors identified by both parties in this instance, that an order granting such leave to the plaintiff will not expose the defendant to prejudice of the level which would make the chance of an acceptably fair trial to be unlikely.
77 I will hear submissions of the parties as to the precise form of the orders which are sought and also upon the issue of costs.
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