Omo v Transport Accident Commission
[2018] VCC 32
•12 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01185
| KANAYO GEORGE OMO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 27 and 30 November 2017 | |
DATE OF JUDGMENT: | 12 February 2018 | |
CASE MAY BE CITED AS: | Omo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 32 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT – LIMITATION OF ACTIONS
Catchwords: Serious injury – significant delay between alleged infliction of injury and first attendance for medical treatment for the claimed injury – causation – whether plaintiff’s failure to seek medical treatment for a significant period of time due to a serious psychiatric illness – relevance of radiology in determining causation – whether the consequences meet the statutory test – date of accrual of cause of action – significant effluxion of time from accrual of cause of action before the plaintiff filed an Originating Motion seeking an extension of time – whether the plaintiff’s failure to commence a proceeding at common law within the limitation period due to a serious psychiatric illness – synthesis of competing considerations of fact and law – whether just and reasonable to extend time
Legislation Cited: Transport Accident Act 1986, s93; Limitation of Actions Act 1958, s23A
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114; Millard v State of Victoria [2006] VSCA 29; Delai v Western District Health Service & Anor [2009] VSC 151; Prince Alfred College Inc v ADC [2016] HCA 37; Davies v Nilsen [2015] VSC 584
Judgment: Leave granted to the plaintiff to bring a proceeding at common law. Limitation period extended within which the plaintiff can bring that proceeding.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A T Broadfoot QC with Ms S C Bailey | Robinson Gill Lawyers |
| For the Defendant | Ms A Magee QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff alleges that he was injured in a transport accident on 11 November 2003. It resulted in him suffering a neck injury which he says constitutes a serious long-term impairment or loss of the function of his neck.
2 Mr A Broadfoot QC appeared with Ms S Bailey of counsel for the plaintiff. Ms A Magee QC appeared with Ms S Manova for the defendant.
The Transport Accident
3 On 11 November 2003, the plaintiff was a passenger in a car which was travelling along Ballarat Road. It was hit from behind by another car travelling at a high speed. The car in which the plaintiff was a passenger was written off.[1]
[1]PCB 22
4 The incident report prepared by attending police officers confirms that the car in which the plaintiff was a passenger was the subject of a rear impact, and that the level of damage to that car was extensive to the point of the car being unrepairable.[2]
[2]PCB 73
5 The defendant did not contest either the plaintiff’s description of the magnitude of the collision nor the description of it in the incident report.
The Issues
6 In basic terms there are several issues which I am called on to determine.
7 Firstly, whether the plaintiff suffered a neck injury resulting from the transport accident.
8 Secondly, whether the present impairment of the function of the plaintiff’s neck is causally linked to the transport accident.
9 Thirdly, if there is a causal link, then are the impairment consequences serious.
10 Fourthly, is the plaintiff statute barred, given that the transport accident occurred about fourteen years ago.
11 I will summarise the evidence through the prism of each of these issues, and will subsequently analyse that evidence for the purpose of determining what I accept and reject.
The Plaintiff’s psychiatric illness
12 The plaintiff relied upon the interference caused by a psychiatric illness as the reason why he did not report the onset of a neck injury and seek medical treatment for some years, and why he did understand and act upon the legal advice he was given.
13 The plaintiff was first formally diagnosed with Schizophrenia on 15 December 1993. He was treated at a clinic which is now under the umbrella of NorthWestern Mental Health.
14 Dr Peyton, consultant psychiatrist, provided a report dated 16 January 2017 from medical records held by NorthWestern Mental Health.[3] He described the first contact which plaintiff had with NorthWestern Mental Health as follows:
“The first mentioned contact with Mr. Omo in our files is 15/12/1993 at which time he was recorded as suffering Schizophrenia. There are no other records to clarify this but the next entry available, being from an admission from 6/09/2002 to 3/10/2002 to the inpatient unit at Sunshine Hospital, suggest there were mental health hospital admissions, treatment under the Mental Health Act and drug and alcohol issues in the intervening years.”
[3]PCB 97-98
15 Dr Peyton said that the records he had available disclosed the following:
“In September 2002, when our records were again available, he is reported as presenting with elaborate paranoid delusions, grandiose delusions, poor treatment compliance and both drug (marijuana) and alcohol abuse problems. His diagnosis was confirmed as being Schizophrenia.”
16 The gravity of the plaintiff’s Schizophrenia is then demonstrated by the number of admissions which the plaintiff had from 24 May 2004 to 9 November 2016:
“24/05/2004 to 10/06/2004
25/08/2005 to 30/08/2005
28/05/2009 to 04/06/2009
14/06/2010 to 17/06/2010
23/06/2010 to 29/06/2010
19/02/2012 to 21/02/2012
14/04/2012 to 30/04/2012
25/02/2013 to 03/03/2013
09/12/2014 to 14/01/2015
And most recently, 9/11/2016 to 28/11/2016.”
17 Dr Peyton said that the plaintiff was difficult to treat:
“Throughout the years Mr. Omo’s files show he was frequently under the provisions of the Victorian Mental Health Act, as he is currently, with clinical efforts supporting and exhorting him to remain on treatment, to be off drugs and to keep regular clinic appointments. However and regrettably, his illness did severely impact his judgement and decisions, adversely affecting his interactions with authorities, including police, courts and Government departments and included the impairment of his ability to give instructions to legal counsel at times.
One outcome of this cascade of difficulties and problems is that any deadlines or statutory limitations would have passed by without his acting to preserve his rights.”
18 At the time of his discharge from his last bout of inpatient treatment on 28 November 2016, Dr Peyton considered that the plaintiff was not delusional. He considered that the plaintiff had a capacity at that time to understand legal advice and to provide instructions to his lawyers. However, his last observation about the plaintiff appears to me to capture the plaintiff’s history of psychiatric illness very well:
“As I emphasized to Mr Omo today, he has a potential to relapse should he stop being compliant with his treatment and resort to drugs and alcohol abuse. Thus any future reports may rapidly change, should that occur.”
19 The record of inpatient treatment since 6 September 2002 through 2 November 2016 resonates with descriptions of a psychiatric illness which has been acute, requiring a serious level of intervention to stabilise the condition.
20 There is significantly more detail of episodes of the plaintiff’s serious psychiatric illness in the Defendant’s Court Book dating back to October 1992 which demonstrate that the plaintiff was very ill and continued to be prior to the occurrence of the transport accident. I will summarise some of it briefly:
· 31 October 1992 – the plaintiff had a psychotic episode with grandiose and religious delusions.[4]
[4]DCB 153
· A Discharge Summary relevant to admissions on 31 October 1992 and 3 November 1992 to 10 November 1992 – a provisional diagnosis of Cannabis Delusional Disorder and intoxication was made with a differential diagnosis of Schizophrenia form or Schizoaffective Disorder.[5]
[5]DCB 154
· A Discharge Summary dated 20 January 1994 relevant to an admission on 26 December 1993 – a diagnosis of an escalation of psychotic symptoms.[6]
[6]DCB 155-158
· A Discharge Summary of involvement of the North West CATT relevant to a date of referral of 4 July 1996 – a diagnosis of florid psychosis.[7]
[7]DCB 159-161
· A document relevant to an admission on 28 April 2001 – a diagnosis of paranoid Schizophrenia with grandiosity.[8]
[8]DCB 162-164
· A document relevant to an admission on 19 May 2001 – a diagnosis of Schizophrenia relevant to an attempt to set fire to wood at a petrol station, and a reference to non-compliance with oral medication with resulting increased psychiatric symptoms.[9]
[9]DCB 165-168
· A case presentation containing a history of psychiatric treatment between 1992 and 1999, and an admission on 28 April 2001, the diagnosis of Schizoaffective Disorder and substance dependence.[10]
[10]DCB 169-174
· A referral to a mental health service on 8 June 2001 with a noted diagnosis of Schizoaffective Disorder and substance abuse and poor compliance with medication.[11]
[11]DCB 175-176
· An assessment protocol of the Royal Melbourne Hospital dated 19 June 2001 also setting out a history of the plaintiff’s psychiatric problems with a diagnosis of Schizoaffective Disorder and substance dependence.[12]
[12]DCB 180-185
· A determination of the Mental Health Review Board dated 13 July 2001 relevant to the plaintiff’s detention as an involuntary patient.[13]
· A Discharge Summary dated 8 February 2002 which also contains a history of the plaintiff’s psychiatric problems which refers to the plaintiff’s poor compliance with medication, use of cannabis and domestic and other problems related to his Schizophrenia.[14]
[13]DCB 186
[14]DCB 187-190
Psychiatric examinations
21 The plaintiff has been examined by a number of psychiatrists on a medico-legal basis. I propose to summarise their opinions by reference to the dates upon which they examined the plaintiff.
22 The first in time was Dr Entwisle, psychiatrist, who examined the plaintiff on 19 November 2007. He considered that the plaintiff was suffering from a paranoid Schizophrenic illness and a drug induced psychosis. He recommended that the plaintiff undergo detoxification relevant to his marijuana consumption.[15]
[15]DCB 191-195, and in particular at DCB 194-195
23 Dr Weissman, psychiatrist, examined the plaintiff on 6 October 2009, 4 May 2011 and 22 August 2012. He considered that the plaintiff was suffering from chronic paranoid Schizophrenia or a Schizoaffective Disorder, and he noted elements of grandiosity and paranoia.[16] After examining the plaintiff on the third occasion, he considered that the plaintiff had a major psychiatric problem comprising a chronic psychotic illness which he described as chronic paranoid Schizophrenia or a Schizoaffective Disorder with the possibility of maladaptive personality traits.[17]
[16]PCB 206-236, and in particular at PCB 231-232
[17]DCB 249-258, and in particular at DCB 257-258
24 Dr Senadipathy, psychiatrist, examined the plaintiff on 17 November 2015. He considered that the plaintiff was suffering from chronic Schizophrenia.[18]
[18]DCB 264-269, and in particular at DCB 268
25 Associate Professor Doherty, psychiatrist, examined the plaintiff on 28 November 2016. It would appear that he was provided with a significant number of enclosures relevant to the plaintiff’s past psychiatric treatment. He considered that the plaintiff was suffering from either paranoid Schizophrenia or a Schizoaffective Disorder, and his use of cannabis warranted a further diagnosis of a Cannabis Use Disorder. Associate Professor Doherty was asked for his opinion relevant to the plaintiff’s psychiatric condition prior to the occurrence of the transport accident, and he relevantly said:
“It would appear that the psychiatric condition suffered before the transport accident did make a significant interference in the plaintiff’s personal and social interactions and relationships. He was employed for a brief period of time. The history of the worker suggests that his ability to maintain friendships, relationships and employment were all significantly disturbed before the transport accident.”[19]
[19]DCB 281
26 Associate Professor Paoletti, psychiatrist, examined the plaintiff on 2 September 2016 and 24 January 2017. He was provided with a significant number of enclosures relevant to the plaintiff’s past psychiatric treatment. He considered that the plaintiff was suffering from Schizophrenia of a chronic paranoid type, a Cannabis Use Disorder, an unspecified Anxiety Disorder, a chronic unspecified Adjustment Disorder and perhaps depressive symptoms, and perhaps an acquired brain injury due to substance abuse.[20]
[20]PCB 116-142 and in particular at PCB 134-135 and 141
27 Associate Professor Paoletti was asked whether the plaintiff’s psychiatric condition had fluctuated over time, and in particular, since 2003, relevant to his capacity to understand the legal process, and he relevantly said:
“Mr Omo’s capacity would have certainly fluctuated over time, specifically according to the degree of psychosis. The periods that he has been hospitalised would be the ones where he probably had le[a]st capacity, but he may have reduced capacity even in periods when he was not in hospital. Particularly not being his treating psychiatrist, it is difficult to get an overall longitudinal sense. What I would suggest is that, if there are specific issues about capacity/responsibility, for example, behaviour that may have caused legal issues for him, an analysis of psychiatric files relating to those periods may assist, and that may be best done by treating doctors.”[21]
[21]PCB 141
28 From the evidence I have just reviewed I think it is probable that the plaintiff has suffered from Schizophrenia or a Schizoaffective Disorder, together with a Cannabis Use Disorder since 1992.
29 The opinions of Dr Peyton, Associate Professor Doherty and Associate Professor Paoletti are highly relevant in determining the extent that the plaintiff’s psychiatric illness interfered with his capacity to reason logically and effectively. Their opinions, and those of the other psychiatrists, fortify me in unconditionally accepting the opinion of Dr Peyton, who considered that the impact of his psychiatric condition has “severely” impacted on the plaintiff’s judgement and decisions and has
aadversely affected his relationship with authority and understanding the legal process. He considered that impact extended to the plaintiff understanding deadlines and statutory limitations.
30 The defendant objected to the latter opinion by Dr Peyton on the basis that he did not identify the basis upon which such a broad opinion was based. I do not consider that opinion to be objectionable on any ground. It occurs to me that it is the culmination of his opinion of the nature and extent of the plaintiff’s psychiatric illness, and directly attacks the question of the plaintiff’s capacity to reason and behave logically and effectively when faced with the need to understand legal advice and act upon it.
31 Furthermore, the opinions of Associate Professor Doherty and Associate Professor Paoletti are consistent with Dr Peyton’s opinion. Associate Professor Doherty considered that the plaintiff’s psychiatric illness had a significant impact on the plaintiff’s friendships, relationships and employment, and I think that opinion is capable of being read as not only relevant to what the plaintiff was like before the occurrence of the transport accident, but since. Associate Professor Paoletti was guarded in the expression of a similar opinion, but notwithstanding his caution, it was his sense that the plaintiff has had similar difficulties since.
32 My preliminary view is that when this evidence is coupled with the plaintiff’s evidence, that a picture emerges of a person whose psychiatric illness was so severe that it interfered with his capacity to reason logically and effectively.
The General Practitioner’ medical records
33 The plaintiff attended the St Luke Medical Centre on 15 May 2003 and reasonably regularly until 13 October 2005.[22] He subsequently resumed attending that medical centre on 27 December 2013. The first occasion that an attending medical practitioner recorded a complaint of neck pain was on 13 June 2014.[23] The note simply refers to “NECK PAIN”. The clinical notes of that medical centre demonstrate that the plaintiff attended that medical centre on twenty-seven occasions before 13 June 2014 for medical treatment without mentioning a neck injury or the transport accident.
[22]DCB 342-347
[23]DCB 351
34 During cross-examination, the plaintiff was asked to explain how it could be that he was capable of recognising the need to attend that medical centre for treatment for a variety of medical conditions yet could maintain that it was his psychiatric illness that interfered with his capacity to obtain medical treatment for an actively symptomatic neck injury.[24] The plaintiff gave the following answer:
“… I had a serious neck injury going throughout. Like I - as I said, it might just - I’m just going to blame it on my mental illness that has stopped me from being able to relate and communicate very well to my doctors to explain that I have a serious neck injury going to St Luke Medical Centre, but I did that with St Albans Family Doctor Clinic.”[25]
[24]Transcript 36-39
[25]Transcript 37
35 The plaintiff also attended the St Alban’s Family Doctor Clinic. He first attended at that clinic on 28 December 2005. The first occasion that an attending medical practitioner recorded that the plaintiff had been involved in the transport accident was on 26 February 2008. He saw Dr P Pham, general practitioner, who recorded the following:
“Apparently was in car accident in 2003.
Is claiming compensation from TAC.
Believes head injury responsible for his schizophrenia and memory loss. … .”[26]
[26]DCB 330
36 It was during an attendance on 14 February 2008 that he first complained of neck pain to Dr P Pham, who recorded the following:
“Neck - Pain accident 3 years ago.”[27]
[27]DCB 330
37 The clinical notes of that medical centre demonstrate that the plaintiff attended that medical centre on over thirty-five occasions before 14 February 2008 for medical treatment without mentioning a neck injury or the transport accident.
38 During cross-examination, the plaintiff was also asked to explain how it could be that he was capable of recognising the need to attend that medical centre for treatment for a variety of medical conditions yet could maintain that it was his psychiatric illness that interfered with his capacity to obtain medical treatment for an actively symptomatic neck injury.[28] The plaintiff gave the following answer:
“After getting better with my mental illness and that would have allowed me to express myself much more better to my doctor to talk about the whiplash that I mentioned about. He make diagnosis to the neck pain as a result of the car accident.”[29]
(sic)
[28]Transcript 40
[29]Transcript 40
39 The plaintiff denied that the reason why he did not complain of neck pain and report that he had been in a transport accident was because his neck was not giving him any trouble.[30]
[30]Transcript 41-43
40 The plaintiff’s psychiatric illness when considered alone leads to a conclusion that it probably interfered with his capacity to reason and behave logically and effectively.
41 However, the history of the plaintiff’s attendances on medical practitioners for his general medical needs when considered alone suggests that he was able to reason and behave logically and effectively because it is evident that when he developed an ailment, he made a positive decision that he needed to obtain medical treatment.
42 On the basis of its analysis of the medical records, the defendant submitted that I should not accept that the plaintiff’s capacity to reason and behave logically and effectively was overpowered by his psychiatric illness.
43 The pursuit of medical treatment for a number of medical conditions certainly is at odds with the plaintiff’s evidence that his neck injury was troubling him significantly. If it was troubling him to that extent, it is not an unreasonable expectation that he would have sought medical treatment; however, I am not persuaded that the answer to why he did not obtain treatment for his neck injury is that simple.
Pursuit of legal advice
44 The plaintiff’s pursuit of legal advice is well summarised in the affidavit of Ian James Izzard, solicitor for the defendant, sworn 18 January 2017 (“the Izzard affidavit”).
45 Despite lodging a general claim for compensation under the Transport Accident Act 1986 (“the TAA”) with the defendant dated 15 January 2004 identifying that he had suffered a whiplash injury to his neck,[31] he did not seek legal advice until he retained Maurice Blackburn, Lawyers, in January 2008.
[31]PCB 59-71, and in particular at PCB 63
46 The solicitor at Maurice Blackburn who advised the plaintiff initially, wrote to the defendant by letter dated January 2008[32] asking it to note that Maurice Blackburn had been retained by the plaintiff, and requesting a copy of the plaintiff’s Claim Form, copies of correspondence, a printout of payments made on behalf of the plaintiff and copies of medical and like reports in the possession of the defendant. I infer that the plaintiff must have given instructions to the solicitor that he had been involved in the transport accident, and that he had suffered injury.
[32]DCB 7 – the actual date is obscured by the photocopying process
47 The solicitor wrote to the plaintiff by letter dated 19 February 2008. The letter is heavily redacted, but the most relevant part of it which remains is as follows:
“… We remind you that there is a six-year limitation period in Victoria on bringing such a claim.
We confirm your instructions at the collision occurred in November 2003. Accordingly, 1 November 2006, being the day before the sixth anniversary of your accident, is the last day for issuing common law proceedings.”[33]
[33]DCB 9-12
48 Subsequently, the solicitor wrote to the plaintiff by letter dated 11 September 2008 reminding him that he had instructed the solicitor not to proceed with his claim against the defendant; that two medical appointments had been cancelled as a result, and also reminding him of the periods available to him to review the decision of the defendant relevant to his impairment claim and the limitation period relevant to his common-law claim.[34]
[34]PCB 161a – 161b
49 Subsequently, the solicitor wrote to the plaintiff by letter dated 5 January 2009. Again, the letter is heavily redacted, but the most relevant part of it which remains is as follows:
“… any decision and 6 years from the date of the accident to seek a determination of impairment and / or a common law claim for damages. As your accident occurred on 11 November 2003, you have until 10 November 2009 to seek a determination of impairment and / or commence a common law claim. If you fail to do so you will be statute barred from bringing such a claim.”[35]
[35]DCB 13-15, and in particular at DCB 14
50 After receiving that advice, the plaintiff took no step to commence an application for an impairment assessment or for serious injury. What the plaintiff did was to cease his retainer of Maurice Blackburn and then to subsequently seek advice from eight firms of solicitors before ultimately engaging his present solicitors. A summary of the solicitors he subsequently retained is referred to in the Izzard affidavit:
· March 2009 – Victorian Compensation Lawyers.[36]
[36]DCB 2 and 17
· May to 11 October 2010 – Nowicki Carbone Lawyers.[37]
[37]DCB 3 and 19-21
· December 2010 to September 2011 and July 2012 to September 2012 – Patrick Cash and Associates.[38]
[38]DCB 3 and 23-27
· November 2011 to March 2012 – Goz Lawyers.[39]
[39]DCB 3 and 29-32
· October to November 2012 – Pasha Legal.[40]
[40]DCB 3 and 34-37
· October 2015 – Slater and Gordon Lawyers.[41] The plaintiff retained Slater and Gordon for other reasons which I will refer to later.
· June 2015 – Arnold Dallas MacPherson.[42]
· November 2015 – Adviceline Injury Lawyers.[43]
[41]DCB 3
[42]DCB 3 and 51
[43]DCB 3 and 53
51 There is correspondence exhibited to the Izzard affidavit from each of the firms of solicitors he retained, except for Slater and Gordon, relating to the transport accident. I infer that he gave each of those firms’ instructions that he had suffered injury in the transport accident.
52 The plaintiff’s retainer of Slater and Gordon was to be directed to a claim made by the plaintiff for WorkCover payments arising out of his employment with Chubb Security in 1995 relevant to his work as a security officer stationed at bank branches. It would appear that the plaintiff claimed that he suffered “post-traumatic paranoid Schizophrenia” and “hypertension”. These are the injuries which he noted on a Worker’s Injury Claim Form which he signed on 16 October 2015.[44] In support of his claim, he made a statement dated 12 May 2015.[45] He referred to two matters of significance in the statement. The first is a reference to his retainer of Adviceline Injury Lawyers who he said were pursuing a common law damages claim for him, and the second is a bizarre episode when he poured petrol over firewood at a petrol station and attempted to set it on fire. He was removed by the police.
[44]DCB 48-49
[45]DCB 39-47
53 The Izzard affidavit also contains a number of documents which are also relevant. For the time being I will simply summarise them as follows:
· A notice of application for review to Victorian Civil and Administrative Tribunal (“VCAT”) made by the applicant in person dated 5 May 2010 seeking a lump sum payment, and impairment benefit, a serious injury certificate and what he described as a “Total pay-out”.[46]
[46]DCB 57
· The decision of VCAT dated 15 May 2012 dismissing a review of the defendant’s decision relevant to the plaintiff’s application for an impairment benefit.[47]
[47]DCB 76-81
· An Originating Motion filed in the Supreme Court dated 18 May 2012 applying for a review of the decision of VCAT. It not only seeks to review that decision but also seeks an order that the Director of Housing pay him compensation.[48]
[48]DCB 59-62. The Originating Motion was accompanied by a Summons on Originating Motion at DCB 64‑65, and an affidavit at DCB 66-71
· A draft notice of appeal filed in the Supreme Court dated 18 May 2012 also seeking a review of the decision of VCAT.[49]
[49]DCB 72-74
· A notice of appeal filed in the Supreme Court dated 29 May 2012 seeking a review of the decision of VCAT.[50]
[50]DCB 88-91
· The notice of appeal filed in the Supreme Court dated 29 May 2012 seeking a review of the decision of VCAT.[51]
[51]DCB 88-91
· There is a Summons on Originating Motion dated 30 May 2012 and an affidavit sworn the same day, but it there is no associated originating motion in the Izzard affidavit. Both seem to be directed to seeking a review of the decision of VCAT.[52]
· An Originating Motion filed in the Supreme Court dated 5 December 2012 presumably reviewing the decision of VCAT.[53]
· A release executed by the plaintiff dated 1 November 2012 settling the plaintiff’s claim for impairment benefits at 13 per cent.[54]
[52]DCB 94-96 and 97-100 respectively
[53]DCB 83-87
[54]DCB 104-106
Business activity
54 The plaintiff made attempts to establish a number of businesses. The defendant submitted that those attempts are highly relevant in determining the plaintiff’s capacity to reason and behave logically and effectively:
· The plaintiff has resided at an address in St Albans for at least fifteen years. He used that address as his business address.
· He attempted to establish a real estate agency under the name of Boulavard Real Estate Agents after completing a short course at Victoria University.
· He conducted a business known as Black Is Black Productions, and after the transport accident, a business known as George Omo Productions. Both of the last mentioned businesses were described by the plaintiff as involving movies, sport, music production and black entertainment.[55]
[55]Transcript 72, and generally at Transcript 67-79
55 The call was made for the business records of each of the businesses. The plaintiff said he had lost them. He said that he went to the airport about a year ago, intending to fly to London. He did not have an airline ticket nor a visa. He took a box containing all of his business documents with him. He left the box at the airport. His explanation for what appears to be bizarre behaviour was that he was not mentally well.[56]
[56]Transcript 78-80
56 It was my impression from the cross-examination that none of these businesses were much more than a baseless hope that they would be productive. Packing a box with all of his relevant documents, and possibly important documents, and taking them to the airport when he did not have an airline ticket or a visa and then losing all the documents is bizarre behaviour.
57 Against that impression is the fact that he did work as a security guard at the Melbourne Commonwealth Games for four days and at AMB Telecommunications in Spencer Street for three months as a senior sales executive, working four hours per day, five days per week.
Passports
58 A call was made for the plaintiff to produce any passports he had in his possession. He said that he had two passports, one of which was destroyed because it went through the wash in a washing machine. He believes the other one was stolen. The basis of that belief is that it was in his house, but because he is unable to find it, it must have been stolen.[57]
[57]Transcript 108-109
The Plaintiff’s mental capacity
59 I have considered the whole of the evidence on the issue of the plaintiff’s capacity to reason and behave logically and effectively. The conclusions I have reached are as follows.
60 Firstly, I accept that the plaintiff has laboured under a serious and pervasive psychiatric illness since 1992-1993. It has played upon his capacity to reason and behave logically and effectively, both before and since the occurrence of the transport accident. It has been responsible for what appears to be bizarre behaviour on his part, and in particular, not seeking medical treatment until 2008; attempting to set up businesses which appear to me to be mere flirtations, with a notion that he had that he could be a businessman, and the very odd behaviour when he went to the airport with his box of documents. None of that is the behaviour of someone who was rational and who has the capacity to reason and behave logically and effectively.
61 The defendant submitted that if I concluded that the plaintiff’s psychiatric illness was serious and pervasive, that I should not be tempted to throw it over the plaintiff’s conduct, since the transport accident as the only explanation for his alleged failure to seek medical treatment and to report the occurrence of the transport accident to a medical practitioner until 2008 and to ignore legal advice. Superficially there is some attraction to that submission, but where it fails is an analysis of all of the evidence which demonstrates that the plaintiff’s psychiatric illness was not only serious but all pervasive.
62 Secondly, I do not accept that because the plaintiff sought general medical treatment and did not report the occurrence of his neck injury or the transport accident, that it is necessarily inconsistent with the plaintiff having suffered a neck injury. The fact is that he did lodge a Claim Form in 2004, and gave a reasonable account of the injury in the transport accident in 2008 to Dr Pham on the first solicitor he engaged.
63 Thirdly, I do not accept that because the plaintiff retained so many firms of solicitors, and was probably given very similar advice about his overall legal rights, that he understood the advice he was given and ignored it. The fact that he went to so many solicitors demonstrates irrational behaviour, and that irrational behaviour extended into the reviews which he made to the Supreme Court. Those reviews had no prospect of success. They appear to be the product of an obsessional focus by the plaintiff on his impairment assessment and the orders made by VCAT. This is not the behaviour of someone who was reasoning and behaving logically and effectively.
64 Fourthly, the fact that the plaintiff set up a number of businesses again is not necessarily inconsistent with the plaintiff being seriously affected by his psychiatric illness. His flirtation with the real estate industry was so seriously unsophisticated that it amounts to him kidding himself that he had any prospect of establishing any measure of a successful real estate practice, and I think that also applies to his other flirtations with businesses.
Did the Plaintiff suffer a neck injury?
65 I think it is probable that the plaintiff did suffer a neck injury resulting from the transport accident. My reasons for reaching that conclusion are as follows.
66 The plaintiff was involved in a major rear impact collision. It is probable that he suffered some level of acceleration/deceleration to his upper body consistent with the known effects of such an impact.
67 Although, the plaintiff did not seek any medical treatment until 2008, he did submit the Claim Form in which he referred to a “whiplash injury to the neck” as the only physical injury he suffered.[58]
[58]PCB 63
68 The plaintiff’s failure to seek any medical treatment and to report the occurrence of the transport accident subsequently is explicable by the nature and extent of his psychiatric illness. I have dealt with that so extensively that it does not require repetition.
69 It was following the initial two attendances on Dr Pham in 2008 that there was a medical focus on the plaintiff’s neck injury. He was referred to have an x-ray and CT scan of his neck on 29 August 2008. They demonstrated a moderate central disc protrusion at C4-5 with cord compression in the midline, and minimal C6-7 central protrusion.[59] The plaintiff was then referred to have a CT scan of his neck on 25 May 2010 which demonstrated mild central C3-4 canal stenosis without disc prolapse, moderate central nodular C4-5 disc prolapse without definite nerve root compression, and mild C5-6 cervical spondylosis without disc prolapse.[60]
[59]PCB 75-76
[60]PCB 77
70 Dr Pham referred the plaintiff to Mr Khan, orthopaedic surgeon, who first saw the plaintiff on 25 February 2009. He re-examined him on 5 March 2009 and 12 March 2009. It was as a result of his examinations of the plaintiff and review of the relevant radiology available for his assistance that he provided a report to the defendant dated 17 June 2009 in which he said the following:
“Following the injury in the motorcar accident, he has sustained musculo-skeletal and ligamentous strain to his cervical and thoracic spine and to some extent his ribcage. He has a discogenic pain in his neck, with intermittent referred pain along his left upper limb, but without evidence of definite radiculopathy.”[61]
[61]Mr Khan provided a number of reports dated 25 February 2009 at PCB 80-81; 11 March 2009 at PCB 82-83; 19 March 2009 at PCB 84-85, and finally, 17 June 2009 at PCB 86-90
71 Dr Pham provided two reports dated 5 November 2009[62] and 7 January 2010.[63] He recorded that the plaintiff informed him that he was involved in the transport accident and had been suffering from chronic neck pain since that time.
[62]PCB 91
[63]PCB 92
72 Dr Oludare, general practitioner of the Emmanuel Medical Centre, then referred the plaintiff to Mr Kavar, neurosurgeon, who saw the plaintiff on 1 March 2011. Dr Oludare referred the plaintiff to have an MRI scan which was undertaken on 26 February 2011. Mr Kavar had the results of the MRI scan available when he examined the plaintiff. He considered that it showed a C4-5 disc prolapse with spinal cord compression. He informed the plaintiff that his options were an exercise program or a C4-5 anterior cervical discectomy and fusion. The surgery was directed to relieving the variable pins and needles, numbness and tingling down the plaintiff’s arms which was more so on the left side than the right side, and tingling and stiffness in his legs. The plaintiff preferred to pursue a nonsurgical option.[64]
[64]PCB 94
73 The plaintiff has pursued conservative treatment. He has been prescribed painkilling medication such as Tramal and he has used over-the-counter medication such as Nurofen and Panadol.[65] The plaintiff said that his consumption of cannabis has had the effect of relaxing him to the extent that it removes his focus from his neck pain.[66]
[65]PCB 26
[66]Transcript 142-143. The use of Tramal was limited.
74 The plaintiff was examined by a number of medical practitioners on a medico-legal basis.
75 The first in time was Dr Elder, consultant in occupational medicine, who examined the plaintiff on 29 January 2008. On clinical examination, he found a full range of movement. He considered that the mechanism of the injury would have resulted in a whiplash injury, but the effluxion of time since the transport accident led him to conclude that the plaintiff no longer had any medical condition affecting his neck.[67]
[67]DCB 196-199
76 The next was Mr Shannon, orthopaedic surgeon, who examined the plaintiff on 6 October 2009. Mr Shannon obtained a history from the plaintiff that he saw a general practitioner two years after the transport accident which is clearly wrong. On examination, he found a normal range of movement. He diagnosed a soft tissue injury to the neck with an excellent prognosis.[68]
[68]DCB 200-204
77 The next was Dr Kam, consultant radiologist, who did not examine the plaintiff. He reviewed a large body of material including radiology. He concluded that in the absence of symptoms after the transport accident, that the plaintiff had suffered no injury, or at least no significant injury, and what changes he saw on the radiology had developed closer to 2008 than related to the transport accident.[69]
[69]DCB 237-242
78 The next was Mr Fogarty, orthopaedic surgeon, who examined the plaintiff on 5 July 2011. He obtained a history that the plaintiff saw a general practitioner shortly after the occurrence of the transport accident which is clearly wrong. On examination, he found a normal range of movement. He diagnosed a soft tissue injury to the neck and an aggravation of pre-existing degenerative disc disease, particularly at C4-5 and C5-6 levels. He considered that the plaintiff had suffered an acute injury to his neck and an aggravation of early degenerative changes. He considered that his prognosis was reasonably good.[70]
[70]DCB 243-248
79 The next was Mr Kossman, orthopaedic surgeon, who examined the plaintiff probably on 10 October 2016. He provided two reports dated 10 October 2016[71] and 14 March 2017.[72] Mr Kossman was provided with a large quantity of medical reports and all of the relevant radiology. He was asked what injury he believed the plaintiff had suffered in the transport accident. He gave a long answer as follows:
“Pain cervical spine radiating into the left arm on the basis [of] severe changes including a broad-based posterior disc bulge at the C3/4 level, eccentric to the right and contributed to spinal canal stenosis and deformity of the right hemicord, shallow circumferential disc bulge at the C4/5 level with a superimposed focal large posterior central disc extrusion, resulting in a severe spinal canal stenosis, marked spinal cord deformity, cord signal change and mild left and moderate right-sided foraminal stenosis and shallow circumferential disc bulge at the C5/6 level contributing to mild spinal canal narrowing and moderate right-sided foraminal narrowing and a circumferential disc bulge at the C6/7 level resulting in mild spinal canal stenosis.”[73]
[71]PCB 105-111
[72]PCB 112-114
[73]PCB 109
80 Mr Kossman considered that the plaintiff would require surgery, but that he should undergo an updated x-ray and MRI scan. He considered the surgery would involve instrumental fusion at the C4-5 and C5-6 levels.[74] He provided three reports dated 21 April 2017,[75] 10 May 2017[76] and 27 June 2016.[77]
[74]PCB 110
[75]PCB 143-144
[76]PCB 145-148
[77]PCB 149-150
81 The next was Mr D’Urso, neurosurgeon. Mr D’Urso was provided with a large quantity of medical reports and up-to-date radiology. When he examined the plaintiff on 5 May 2017, he was provided with a further MRI scan taken on 16 June 2017, and subsequently, was of the following opinion:
“It would appear that a motor vehicle accident which Kanayo was involved in on 7th November, 2003 was of sufficient severity, causing whiplash injury to the cervical spine. There is evidence of significant disc prolapse at the C4-5 level causing spinal cord compression and broad-based prolapse at C5-6. It would appear plausible that this accident has contributed to the development of these prolapses or at least aggravated the pre-existing condition.”[78]
[78]PCB 147 and 150
82 Mr D’Urso was asked to review his opinion. He did so in his last report. After undertaking that review, he said that his earlier stated view remain unchanged.[79]
[79]PCB 149-150
83 The defendant required Mr Kossman and Mr D’Urso for cross-examination. The purpose of the cross-examination was to put to Mr Kossman and Mr D’Urso the history of no medical treatment and reports to medical practitioners of the occurrence of the transport accident until 2008, and the essence of the opinions of Dr Elder, Mr Shannon, Dr Kam and Mr Dooley.
84 During cross-examination, and in relation to the question of causation, Mr Kossman said he worked on the basis that he could not exclude the transport accident as being relevant to his diagnosis. He appears to have based that opinion on the plaintiff’s account that he had experienced neck pain since the occurrence of the transport accident.[80] During cross-examination in relation to the same question of causation, Mr D’Urso said that the history that was put to him made it less likely that there was a causal link between the transport accident and the plaintiff’s neck injury.[81]
[80]Transcript 165-166
[81]Transcript 181-182
85 The evidence which I found the most compelling came from Mr D’Urso during re-examination:
Q:“My question also was if he’d complained about whiplash in January 2004, is that a matter that would be significant or insignificant?---
A: I think it would be significant.
Q:Would that be a factor that you would take into account in determining whether the subsequent lack of complaint suggests no injury or no significant injury?---
A: It does bring into focus the temporal relationship between when the accident occurred and when he complained of an injury, and if indeed the injury - he did complain of symptoms within a number of months, that makes it more probable that the accident was significant than a delay of five years.
Q:Can you say how more probable - how much more - - -?---
A:I’d say substantially more probable.”[82]
[82]Transcript 191-192
86 In relation to the radiology, Mr D’Urso added:
Q:“Can you explain to His Honour why the radiology shows more than normal degeneration in this case?---
A:The radiology showed evidence of spinal cord compression and nerve root compression and a degree of injury to the spinal cord, which is clearly not normal at any age, really, so I would say that there was substantial abnormality present, well beyond what I would expect to see in a man of his age.
Q:And what, if any, inferences in relation to the cause of that more than normal degeneration are most reliably able to be drawn, in your opinion, as to the likely cause?---
A:If someone presents with that degree of abnormality, usually there is three factors that have - a confluence of three factors which have led to the degree of abnormality. Firstly, there is a genetic basis; some people are prone to develop advanced degenerative change. Secondly, there is what the person has done throughout their life, how much repetitive neck movement and physical activity they have done. And the third factor is trauma or injury to the neck.
Q:And based on what you know about this case, are you able to express any opinion, and if so what, as to which of those three possible explanations is the most likely in this case?---
A:I would think it’s probably all of the three.”
HIS HONOUR:
Q:“And proportionally between the three?---
A. It's difficult to say that. I would think – it’s difficult to say. I’m not entirely certain what his occupational history was or what he had done throughout his life before the accident or after the accident, but probably a combination of the three factors, and I really can’t dissect it any further than that, I’m afraid.”[83]
[83]Transcript 192-193
87 The reason why I found his analysis more compelling is because, firstly, he had available to him a reasonable history of critically relevant events and issues following the occurrence of the transport accident. In particular, he had all of the relevant radiology. Secondly, he is a surgeon of the highest rank with a special interest in spinal surgery. I think it is a sufficiently well-known fact that neurosurgeons are the preferred medical specialists in the treatment of cervical and thoracic spine conditions. Thirdly, I think he was the only medical witness who had all of the critically relevant issues exposed for his examination both in his report, and in particular, during his very informative oral evidence.
88 I will now deal with Mr Dooley, orthopaedic surgeon. The reason I have decided to deal with his evidence last is because of some very unusual features in one of his reports which I found troubling.
89 Mr Dooley examined the plaintiff on 19 December 2016. He provided three reports dated 17 January 2017,[84] 1 May 2017[85] and 29 November 2017.[86] The history he obtained is very general, and does not include the facts relied on by the defendant relevant to the causation issue. On the basis of the history he was given and his examination, he considered that the plaintiff had suffered a soft tissue neck injury which he described as a “standard soft tissue cervical spine injury” which would result in the plaintiff noting ongoing intermittent neck pain. He considered that the plaintiff would have some restriction in his capacity to work and engage in domestic tasks and recreational activities.[87]
[84]DCB 284-290
[85]DCB 290.1 – 290.2
[86]DCB 290.3 – 290.5
[87]DCB 287-288
90 Mr Dooley reviewed the documentation and medical reports he referred to in his report dated 1 May 2017. None of what he was provided caused him to change his earlier stated opinion.
91 Mr Dooley’s third report dated 29 November 2017 was not included in the Defendant’s Court book. It was handed to me before addresses, accompanied by an application by the defendant to excise parts of the report. The application was contested by the plaintiff. I can see no good reason why material upon which a medical practitioner bases an opinion should be excluded. I can see no good reason why this material should be excluded, because I think it is highly relevant to the way in which Mr Dooley chose to make a number of troubling observations.
92 The only additional material provided to Mr Dooley was the last MRI scan. What he saw on the MRI scan did not cause him to change his earlier stated opinion.
93 There are two matters referred to by Mr Dooley in his last report which I find troubling. The first is the fact that he was either not provided with the expert witness code of conduct or he simply did not bother to refer to it and state that he was aware of its contents and would be bound by it. Notwithstanding this failure, I will admit his reports into evidence.
94 The second is what Mr Dooley said in that report in two fairly lengthy paragraphs in which he proceeded to unpick the nature of personal injury claims and the manner in which medical evidence is presented in them. I found both paragraphs to contain matters which are insulting to medical practitioners who provide reports in a medico-legal context, and insulting to the legal process. I will refer to the second of the two offending paragraphs only:
“When I began medicine, it was a vocation. In time it became a profession. To many it is now a business. I suspect that many within the legal fraternity have noted a similar trend in their field. The world of medicolegal medicine becomes murkier by the minute. Valid high level scientific evidence seems to get thrown out the window in preference to wildly speculative opinions that would not survive scientific scrutiny. Court room questioning is often carefully stage managed. Frequently Dorothy Dixer questions are asked. A person without medical knowledge or experience reading the court transcript would be given the impression that Mr Omo should be wrapped in cotton wool because it any moment and with the most minimal of trauma, he could be rendered paraplegic or tetraplegic. … .[88]
[88]DCB 290.4 – 290.5
95 There are reports of sixteen medical practitioners in the court books. They range from general practice, occupational medicine, psychiatry, through to surgical specialties. I suppose that Mr Dooley intended his criticism to extend to each of those medical practitioners who must not have shared his cynical view, because they gave opinions as they were asked willingly, competently, properly and presumably bound by accepted ethical standards. The lawyers acting for both sides, and I include myself in the following observation, have not acted as if this is stage-managed or some contrived circus event.
96 Despite what I consider are the insults inherent in Mr Dooley’s unwanted and unwarranted observations, I have ignored them, preferring to look at his analysis of the plaintiff’s neck injury.
97 As I have already observed, I found Mr D’Urso’s evidence to be the most compelling. I accept his evidence as being a well-considered, well presented and persuasive opinion relevant to causation. I accept it with little reservation, but I am not blind to the fact that some aspects of the history given to him by the plaintiff are inaccurate. For example when the plaintiff first obtained medical treatment and his use of Tramal for pain relief.
98 Mr Dooley considered that the plaintiff had suffered a soft tissue injury to his neck which involved what he went on to describe as “a so-called cervical sprain, strain, whiplash type injury”. He accepted that the plaintiff was experiencing ongoing neck pain and upper limb pain.[89]
[89]DCB 290.4
99 Both Mr Kossman and Mr D’Urso were cross-examined by reference to Mr Dooley’s diagnosis of a soft tissue injury. They disagreed that the plaintiff had suffered just a soft tissue injury limited to a musculoligamentous injury. They were of the opinion that soft tissue injuries can include discal injury, and they appear to accept that to be the case with the plaintiff.[90] Mr Dooley did not make it clear in what context he was using the diagnostic expression “soft tissue”. My sense is he intended it to include all of the soft tissues in the neck, including cervical discs, because his diagnosis was made in the context of exposure to the relevant radiology which demonstrated discal abnormalities.
[90]Mr Kossman at PCB 166 and Mr D’Urso at PCB 187
100 Both Mr Kossman and Mr D’Urso were put in the unenviable position of being asked to comment on the extent to which, if any, the plaintiff’s psychiatric illness would have played in the plaintiff not seeing a medical practitioner much earlier on complaining of neck pain and reporting the occurrence of the transport accident. They were prepared to consider that it played some role, but as I have already observed, they were really not in a position to be able to say very much in that regard.
101 Neither Mr Kossman nor Mr D’Urso had the benefit of all of the material which I have read, analysed and considered regarding the initial onset of the plaintiff’s psychiatric illness, its gravity, its persistence and chronicity. I am not going to speculate as to what they might have said had they had that benefit, but they may have seen things somewhat differently. As it is, I am persuaded that the nature and extent of the plaintiff’s psychiatric illness did play a significant role in the plaintiff not complaining of neck pain and reporting the occurrence of the transport accident to a medical practitioner as one might expect.
Serious injury
102 I will now proceed to analyse the evidence pointing to the impairment resulting from the plaintiff’s neck injury, and whether the consequences of that impairment in terms of pain and suffering and pecuniary disadvantage are “serious”.
103 I think the starting point is to analyse what the treating medical practitioners thought of the plaintiff’s neck injury. In that respect, the starting point is the diagnosis made by Mr Kavar. He was unequivocal in saying that the plaintiff required a C4-5 anterior cervical discectomy and fusion. He wrote to the defendant seeking its approval for him to undertake that surgery.[91]
[91]PCB 93-94
104 Without repeating my summary and findings with respect to the opinions of Mr Kossman and Mr D’Urso, they appear to me to agree that the plaintiff has a discal injury which they believe is probably related to the occurrence of the transport accident. Both also accept that surgical intervention is an appropriate option for the plaintiff to pursue.[92]
[92]Mr Kossman at PCB 110 and Mr D’Urso at PCB 144
105 Whilst the plaintiff’s account in his affidavits might not be so reliable because of the impact of his psychiatric illness, I accept that, at least by 2008, he sought and obtained medical treatment for neck pain which was of sufficient gravity for him to be referred to Mr Khan and Mr Kavar.
106 I accept the plaintiff’s evidence that he suffers ongoing neck pain with some pain radiating into his upper limbs. I accept that he has a variability in the extent of the pain which he describes as having good days and bad days. I accept that he suffers an interference with his sleep as a result of the pain he experiences. I accept that the range of movement of his neck is restricted by pain.
107 I accept the plaintiff’s evidence that he had an interest in dancing and music, both of which have been interfered with by the impairment of function of his neck injury. I accept that he was active engaging in social, domestic and recreational activities and in his relationships which are now significantly reduced.[93]
[93]PCB 26-27 and 35a-35d
108 I should pause for a moment to note that the plaintiff had suffered injuries to his feet which interfere with his capacity to engage in soccer, and other impact activities unrelated to the transport accident. I have not taken any of his pre-existing problems and their consequences into account except to the extent referred to in Peak Engineering Pty Ltd & Anor v McKenzie.[94]
[94][2014] VSCA 67
109 I have already made observations about the plaintiff’s vocational pursuits. His psychiatric illness which pre-dated the transport accident appears to have been so significant that it is probable that he was either incapacitated for work for which he was qualified or was very limited in his capacity to undertake that work. It is probable that his psychiatric illness continues to interfere with his vocational pursuits. Even though he attempted to establish the businesses which I have referred to earlier, they do not appear to have been at all sophisticated or had any real chance of being very productive of income, if any.
110 However, and despite the extent to which the plaintiff’s psychiatric illness interfered with his capacity for work, his neck injury has been productive of pecuniary disadvantage. I think it is a fair conclusion to reach that with the nature and extent of the neck injury described by Mr Kavar, Mr Kossman and Mr D’Urso, that his vocational prospects would have been limited.
111 In summary, the conclusion I have reached is that the nature and extent of the impairment of function of the plaintiff’s neck has the foregoing consequences which, in terms of pain and suffering and pecuniary disadvantage, meet the relevant test of seriousness.
Limitation defence
112 The next issue which I must deal with is the plaintiff’s application brought pursuant to s23A of the Limitation of Actions Act 1958 (“the Limitation Act”)
113 The relevant limitation period is six years from the date of the accrual of the cause of action. Therefore, the plaintiff’s proceeding became statute barred by 12 November 2009. The plaintiff filed his Originating Motion on 30 March 2016 seeking, among other things, an extension of time.
114 The defendant does not assert any specific prejudice arising from the effluxion of time since the accrual the cause of action,[95] but alleges general prejudice inherent in delay, the deliberate choice made by the plaintiff not to pursue a common law claim in the face of legal advice, and otherwise it would not be just and reasonable to extend time.
[95]Paragraph 35 of the defendant’s written submissions
115 Subsection (2) of the Limitation Act provides that the Court may extend time within which a cause of action may be brought if it decides that it would be just and reasonable to do so. Subsection (3) 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.”
116 The defendant submitted that I should firstly have regard to the underlying rationale for the existence of limitation statutes, and a number of well-known statements relevant to the general prejudice that can arise through the mere effluxion of time.[96]
[96]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh at 551-553; Tsiadis v Patterson (2001) 4 VR 114 per Buchanan JA at 123-124, paragraph [33]; Millard v State of Victoria [2006] VSCA 29 at paragraph [42]; Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21] and Prince Alfred College Inc v ADC [2016] HCA 37 at paragraphs [99]-[100]
117 Both the plaintiff and the defendant referred to the excellent summary of the relevant authorities by J Forrest J in Davies v Nilsen[97]of the relevant principles of law which I should pay regard to:
[97][2015] VSC 584
“43… The principles applicable to an application for extension of time under sae 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.
44 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.”[98]
[98]at paragraph [43] - footnotes deleted
118 I will now deal with each of the considerations referred to in ss(3) where they are relevant.
119 The length of the delay is substantial, if not inordinate. For reasons which I think are now very plain, I accept that the reasons for the delay are due to the plaintiff’s psychiatric illness and the obsession that he developed regarding the pursuit of an impairment assessment.
120 The defendant submitted that the mere effluxion of time is likely to give rise to prejudice. I do not accept that. I think the defendant knows all that it is necessary for it to know about the plaintiff. Firstly, it knows that the plaintiff was a passenger in one of the cars. That must mean that liability will not be an issue. Secondly, the medical material which the plaintiff and the defendant have acquired amply demonstrates the nature and extent of the psychiatric illness both prior to and since the transport accident. Thirdly, there is a significant body of medical evidence both relevant to the plaintiff’s physical injury and his psychiatric condition for any reasonably skilled personal injury lawyer to understand the causation issue and the basis of the plaintiff’s claim for damages.
121 It is not entirely clear whether the plaintiff acted promptly and reasonably. It is difficult to determine when it was that he was able to understand that he had a common law claim and the steps he needed to take to be entitled to bring such a claim. He certainly acquired that knowledge after he retained his current solicitors.
122 The plaintiff has taken relevant steps to obtain historical medical evidence, and relevant medico-legal assessments which demonstrate the issues that will need to be determined in his common-law claim.
123 I am not persuaded that the defendant will have its ability to defend a proceeding brought by the plaintiff impaired by the effluxion of time. For my own part, I can see how the plaintiff will bring his claim, and how the defendant will defend it. I can see that with clarity. I have no doubt that the defendant, being a seasoned professional litigant, will see it with just as much clarity.
124 After undertaking a synthesis of competing considerations, I am satisfied that the plaintiff has discharged the onus which he bears, and therefore, I consider that it is just and reasonable to extend time within which the plaintiff may bring a proceeding.
Orders
125 I propose, therefore, to order that the plaintiff be given leave to bring a proceeding at common law. I also propose to extend the limitation period within which the plaintiff can bring that proceeding.
126 I will now hear counsel on the form of the orders, and any other ancillary orders that are required.
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