Palmer v TAC
[2017] VCC 259
•21 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MILDURA
COMMON LAW DIVISION
Case No. CI-16-01548
| TIMOTHY PALMER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 16 March 2017 | |
DATE OF JUDGMENT: | 21 March 2017 | |
CASE MAY BE CITED AS: | Palmer v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 259 | |
REASONS FOR JUDGMENT
Amended 22 March 2017
---
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.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC and Ms A Spitzer | Maurice Blackburn |
| For the Defendant | Mr WR Middleton QC and Mr M Clarke | Transport Accident Commission |
HIS HONOUR:
1 In 1 March 1991 the plaintiff who was then 18 years old was injured when a motorcycle he was riding came into collision with a motor vehicle being driven by Leon Brand.
2 At the time of the collision the plaintiff was travelling along South boundary Road in Pearcedale, carrying his brother on his motorcycle as a pillion passenger.
3 Both the plaintiff and his brother have provided affidavits which contain a brief description of the circumstances of the accident. Those descriptions are consistent with the detail of an incident report prepared by the Victoria police which contains a diagram describing the collision as occurring in circumstances in which Mr Brand executed a right-hand turn across the path of the plaintiff’s vehicle.
4 The plaintiff now brings an application pursuant to s.23A of the Limitations of Actions Act (“the Limitations Act”) for leave to commence this proceeding against the defendant, notwithstanding the expiration of the limitation period.
The Relevant Legal Principles
Applicable Principles
5 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 20 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 timeThe 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.”
6 To the already comprehensive list referred to by Justice Forrest I am inclined to read 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 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 subs(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
7 In the course of considering generally the circumstances of the case, I find it convenient to deal firstly with 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
The Length of and Reasons for the Delay on the Part of the Plaintiff
The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
8 There is no issue that the delay in this instance extends for a period between the date of the subject accident on 7 March 1991 in the present date namely 26 years.
9 On any view this is an extremely lengthy delay.
10 I find it convenient to analyse the issues relevant to each of these sub paragraphs jointly given that the concept of disability in this instance involves the position taken by the defendant:
(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, until he sought legal advice in 2015, unaware of the existence of any common-law right or statutory limitation upon the time which he had to exercise such a right, should not be accepted.
Analysis of the contention 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
11 It is put by the defendant that given;
(i) the ongoing nature of the plaintiff’s symptoms; and
(ii) the delay of some three years between the date upon which Prof de Steiger advised the plaintiff that he should undergo a left knee arthroscopy and meniscectomy and the plaintiff submitting a claim with respect to that procedure to the Transport Accident Commission and undergoing the procedure;
I should take the view that the plaintiff was inclined to sit upon his rights rather than act upon or investigate them and this should weigh against the plaintiff in this application.
12 I am not satisfied that there is any real merit to this position notwithstanding the vehemence with which it was pursued by Mr Middleton QC who appeared with Mr Clark on behalf of the defendant.
13 It is clear that the plaintiff did not make a complete recovery from the injury sustained in the transport accident and that over the years he had ongoing symptoms both in his left knee and right hip. Those symptoms were such as to require the plaintiff to cease work as a concreter but not such that they disabled him from working as a market gardener.
14 Whilst the plaintiff in the early years following his accident was able to return to playing football albeit with symptoms[5], and to surf, these activities became precluded to him as his symptoms increased. Notwithstanding increasing symptoms however the plaintiff was able to continue to work as a market gardener, and did so until January 2016, which work he described as largely manual. [6]
[5] There is no issue that Mr Stephen Doig, to whom the plaintiff presented on 7 July 2016 who obtained a history from the plaintiff that his hip had remained under reasonable control for about 15 years allowing him to return to football which are found difficult but persevered notwithstanding the presence of symptoms.
[6]JCB 8 para 8
15 There is no issue that the plaintiff was first advised that he had suffered a severe injury to his hip which may predispose him to the need to undergo hip replacement surgery at some stage in his life fact, whilst an inpatient at Frankston Hospital.
16 I am not satisfied that this advice given to the plaintiff when he was 18 years of age should be accorded any weight upon the issue as to whether the plaintiff truly appreciated the potential for his injury to result in a debilitating condition, given his immaturity at the time at which it was conveyed to him when considered in the context of the nebulous nature of the timeframe during which such a debilitating condition might manifest itself.
17 The plaintiff consulted Mr Nigel Broughton in April 2010. In a report dated 11 April 2010 Mr Broughton comments that the plaintiff presented to him with a history that:
(i)he had been fine since being discharged from the Frankston Hospital;
(ii)he had been working as a market gardener; and
(iii)he found that he was unable to surf as this activity caused him to suffer pain for months afterwards, and he had intermittent problems at night with pain but had been managing reasonably well.
18 Mr Broughton records that in the course of that consultation that he explained to the plaintiff that he had moderate osteoarthritic change in his left hip and he would eventually require a hip replacement.
19 In my view that advice considered in the context of the history provided by the plaintiff to Mr Broughton that he had been managing reasonably well and his continued ability to work is not such that it was unreasonable for the plaintiff not to seek to investigate his legal rights in the context of:
· the nebulous nature of the timeframe associated with his need for surgery;
· the level of his symptoms; and the
· lack of knowledge as to the existence of any relevant legal rights.
20 The plaintiff presented to Prof Richard de Steiger in August 2011 with symptoms of right hip pain which was becoming worse and causing night pain, together with left knee pain.
21 At that time Prof de Steiger recommended that the plaintiff undergo arthroscopic surgery to his right hip to remove a loose body and resect a femoral bump.
22 In September 2011 the plaintiff consulted Prof de Steiger who discussed with him the proposed surgery to which I referred above.
23 Prof de Steiger's notes of 29 September 2011, record the plaintiff's wish to make a claim to the TAC in respect of the proposed surgery.
24 It is not in issue that Prof de Steiger prepared a letter dated 29 September 2011 to be directed to the TAC enquiring as to whether the proposed surgery surgery would be covered by the TAC.
25 Neither is it in issue that Prof de Steiger's September 2011 letter was not submitted to the TAC until May 2014 and that the proposed procedures were not undertaken until December 2014.
26 The defendant is critical of the delay by the plaintiff in both referring his request for approval of the surgical procedure to be undertaken to his right hip and also delaying the undergoing of that procedure until 2014.
27 In my opinion this delay should be seen in the context of the advice given by Prof de Steiger to the plaintiff to which he refers in his report report dated 15 September 2016, namely:
“with regards to his right hip my initial advice to Mr Palmer was to try and manage his right hip symptoms for as long as possible with some weight loss and general rehab exercises. If he didn't improve I suggested initially hip arthroscopy to excise the bony bump on his femoral head and remove the loose body with the aim of trying to preserve his hip as long as possible”
28 Whilst the defendant submits that the delay in submitting the request by Prof de Steiger to the TAC for authority to undertake the surgery of 16 December 2014 arose by reason of the plaintiff’s inclination not to pursue his treatment diligently I am satisfied that the more probable explanation for the delay in this instance lies in the advice given to the plaintiff by Prof de Steiger that the plaintiff should manage his symptoms for as long as possible without recourse to surgery.
29 Given the slow but relatively steady progress in his symptoms, I am satisfied that it was not unreasonable of the plaintiff not to seek legal advice as to any entitlement he may have to claim damages in respect of his injuries until it became apparent to him that the course of his symptoms was such that they would invariably impact upon not merely his ability to engage in recreational activity but rather his ability to work.
30 I make that statement on the basis that I accept the plaintiff’s evidence that he had no knowledge of this entitlement to commence a proceeding seeking common law damages until October 2015, for the reasons I will develop in due course.
31 I am satisfied, notwithstanding the warnings which the plaintiff had been given at various times including those administered by Mr Broughton in April 2010 to the effect that he would eventually require hip replacement surgery, that it was not until late 2015 when the plaintiff consulted Prof de Steiger (some 12 months after he had undergone the arthroscopy to his right hip), that it became clear to the plaintiff that right hip replacement surgery was both unavoidable and likely to be necessary in the near future. I make that finding given the comments made by Prof de Steiger in his report of 5 October 2015 in which he commented:
“at present stage Tim is too young to have a hip replacement… I recommended that he takes Panadol osteo on a regular basis … I think he will need to delay any interventional surgery for a while longer yet but I would be happy to review him if needed “[7]
[7]JCB 36
32 Whilst it is put that the warning issued to a young man that his future would at some stage involve the need for surgery in the form of a hip replacement should have motivated the plaintiff to act in some way to inform himself as to his common law rights, the problem with this submission which in my opinion causes it to lack any persuasion involves the disconnect between the two processes.
33 Neither am I satisfied for the reasons to which I have earlier referred that the plaintiff’s delay in pursuing invasive treatment in any way indicates a lack of diligence on his part to pursue his rights.
34 It is not uncommon for members of the community to put off medical procedures suggested to them, or for that matter to avoid even thinking about the long-term consequences to them of a particular condition with which they present, until circumstances arise which require them to do so.
35 I do not find it unlikely that the plaintiff, notwithstanding the fact that his symptoms impacted at varying levels of significance upon his enjoyment of life, would not have been motivated to undergo invasive treatment for his symptoms until that process could no longer be avoided. That approach being consistent with the advice I would have expected the plaintiff to have received generally from any medical practitioner to which he presented and the advice which he was given Prof de Steiger, to which I referred earlier.
36 Further, I do not find it unlikely that the plaintiff would delay seeking advice about his entitlement to common law damages in the absence of any knowledge of the existence of that right, until a position of pain inconvenience which he could tolerate, altered into one in which his livelihood was threatened by the progression of his condition.
37 It follows that I do not accept the first of the positions advanced by the defendant referred to in paragraph 10 above .
Analysis and findings as to the issue which it is alleged “beggars belief”
38 It is put on behalf of the plaintiff that the delay in this instance was primarily born of the fact that until the plaintiff sought legal advice from Slater and Gordon on 15 October 2015 he was unaware of:
· his right to commence a claim seeking damages in respect of the injuries suffered by him in the collision; or
· that his right to commence such a claim was affected by the time bar imposed by the Limitations Act.
39 On behalf of the defendant it was urged upon me that I should take the view that in circumstances in which:
(i) the plaintiff had been an inpatient at the Frankston Hospital for 15 or so days immediately following the accident and a claim had been initiated with the TAC in respect of the costs associated with that inpatient stay under the no fault provisions of the Transport Accident Act;
(ii) over the years the plaintiff had sought treatment from various doctors in respect of his injuries in a course of which he had been advised:
· not only whilst he was inpatient at Frankston Hospital immediately following the accident: but also
· on a number of occasions in the course of medical consultations thereafter;
that he had suffered a significant injury to his hip which would expose will him in the future to undergoing hip replacement; and
(iii) the plaintiff’s mother was a nurse;
that I should infer that in the course of the plaintiff’s contact with:
· the medical and allied staff at the Frankston Hospital;
· treating doctors following his discharge from the Frankston Hospital; and
· his mother;
someone must have appraised the plaintiff of his common-law rights which would have motivated him to investigate those rights.
40 Essentially it was Mr Middleton QC’s position that it “beggars belief”[8]given:
[8]By reason of the amendment made 22 March 2017 the word “beggars” was substituted for the word “beggered.”
· the seriousness of the injury to the plaintiff’s right hip; and
· the repeated statements that the plaintiff would eventually require hip replacement surgery;
that someone would not have informed the plaintiff of his common law rights or encourage him to investigate them.
41 To the contrary in my opinion the position contended for has no merit given the absence of a scintilla of evidence to support it.
42 The simple answer to the position advanced by Mr Middleton QC can be found in the analysis of Justice J Forest in Davies, in which His Honour was urged to draw an inference that the plaintiff, by reason of the effect and extent of her injuries would have sought and received legal advice as to
· the existence of any common law right available to her ;or
· the provisions of the limitations of actions act;
from an accredited personal injury specialist with whom she had consulted the purpose of reviewing a no fault impairment assessment by the transport accident commission.
43 At [83] of the judgement His Honour commented:
“It is patently speculative to infer what occurred in any discussion between the two. The absence of records of Mr Cottier means there is no contemporaneous documentation of the instructions given or the advice provided (if any ever existed). Who knows what was said? Just because Mr Cottier was an accredited personal injury specialist does not mean that one can make a leap of faith and surmise that he probably mentioned these issues. Similarly, and contrary to the submission of counsel for Ms Neilson, merely because Ms Davies sought review of the impairment assessment does not go anywhere near creating an inference that she knew about her common law rights and the statute of limitations.”
44 In my opinion it would be equally inappropriate ( if not more so) for me to infer that the plaintiff’s dealings with medical practitioners or the no fault branch the Transport Accident Commission, or with his mother, would have led to the plaintiff being :
· advised or encouraged by someone to seek legal advice as to his common law rights; or
· advised of the existence of his common law rights; or
· counselled to pursue his common law rights.
45 It is clear that the onus is on the plaintiff to persuade the court that he should be granted the indulgence which he seeks in this instance, namely to commence a proceeding in respect of which the time period for its institution has expire.
46 I am of the opinion however that I should accept unchallenged evidence unless there is some reason why I find that evidence not to be persuasive.
47 Contrary to the position taken by the defendant I do not find it to be unlikely that a doctor or a nurse or a mother would not become involved in providing common law legal advice to:
· a patient: or
· a son;
particularly in the absence of any evidence that the person in question possessed any particular knowledge or experience in the law or the existence of such rights.
48 Further, given the complete disconnect between:
(i) the no fault arm of the Transport Accident Commission and the services which it supplies in terms of medical and like expenses: and
(ii) the concept of common law negligence and entitlement to recover damages;
I did not find it unlikely that:
· a claimant for; or
· 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.
49 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.
50 In this instance, the plaintiff’s evidence that he was unaware of his common law rights until he sought advice from Slater and Gordon in October 2015 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.
51 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.
52 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 Slater and Gordon in October 2015; and
· I am further satisfied that the plaintiff’s delay in seeking treatment is explainable and does not support the inference which it is put that I should draw in this instance, namely that his delay in commencing this application is born of the fact that the plaintiff is tardy in his approach to investigating his medical treatment or his legal rights.
The Likelihood of Prejudice to the Defendant
53 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.
54 In Brisbane South Regional Health Authority v Taylor,[9] the High Court, in considering an application made under s.31(2) of the Limitations of Actions Act (Qld) 1974, set out the following propositions which were germane to the application made by the plaintiff in that proceeding, as follows:
[9](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.[10]
[10]per McHugh J, at page 551, with whom Dawson J agreed
55 In Tsiadis v Patterson,[11] the Court of Appeal distinguished the decision of the High Court in Taylor,[12] 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, one of a number being the extent to which, having regard to the delay, there is likely to be prejudice to the proposed defendant.[13] Indeed in Tsiadis, Buchanan JA observed:
“… 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. …”
[11](2001) 4 VR 114
[12](supra)
[13]See the judgment of Buchanan JA, at paragraph 31, with whom Ormiston JA agreed
56 That having been said however, there is no doubt that the effluxion of time alone can occasion significant prejudice the extent of which prejudice 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 an ever dimming memory.
57 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
58 In its affidavit on submissions the defendant pointed to the possibility of specific prejudice associated arising by reason of
(i) The defendant’s memory as to the circumstances of the collision being “not as precise as it otherwise would have been had the plaintiff earlier notified the TAC of his intention to bring a claim for common law damages”
I am satisfied that this statement is so nebulous that the prejudice which arises should be given the weight accorded to general rather than specific prejudice. I will further analyse the prejudice associated with the defendants loss of memory upon the ability of the defendant to secure a fair trial in due course.
The loss of the TAC hardcopy file (ii)
Given that the file is a no fault file in circumstances in which it was conceded that it was not the practice of the TAC to advise claimants in respect of no fault payments of the existence of any potential common law rights, I am satisfied that the loss of the TAC file does not give rise to prejudice of any significance in the defendant’s ability to defend the case brought by the plaintiff or to present his position in response.
(iii) The absence of a police file in circumstances in which the file may have contained witness statements
I am satisfied that this raises the potential of specific prejudice ariseing with respect to the absence of the police file which should be accorded appropriate weight, taking into account however:
· the existence of the current police file and diagram:
· the fact that the loss of the police file involves the mere chance that probative witness statements upon some issue which may have been relevant to the defendants defence of a case might have been generated;
· the absence of any suggestion that access to a relevant witness may have been lost which I consider to be extremely unlikely having regard to the location of the collision and its timing;
each of which factors tend to diminish the effect of the prejudice upon the defendant’s ability to defend the case brought against him by the plaintiff or to present his position in response. I will further analyse the prejudice associated with the potential loss by the defendant of probative evidence upon the ability of the defendant to secure a fair trial when I consider the evidentiary issues which are likely to arise in the case in due course.
(iv) The absence of documents from ambulance Victoria.
This position is no longer pursued having regard to the access to the parties of the notes of the ambulance officers attending the scene.
(v) The RACV property damage file relevant to the claim made by the defendant with respect to the damage to his vehicle.
This aspect of prejudice was abandoned by Counsel on behalf of the defendant in the course of discussions during the application
(v) The inability of the defendant to investigate the issue of the causation of the plaintiffs claimed injuries in a timely fashion
This aspect of potential prejudice was not raised by the defendant in the course in its written submissions nor identified by Mr Middleton QC upon my initial enquiry as to whether any prejudice other than that associated with the primary liability for the accident arose for the defendant. In the course of submissions, however Mr Middleton raised the issue of the inability of the defendant to undertake a timely investigation as to the issue of causation. Given the medical records available to the defendant generated during the plaintiffs admission at the Frankston Hospital together with the various x-ray reports generated in the course of the plaintiff’s treatment, all of which is to be considered in the context of:
· the fact that the plaintiffs claim relates to skeletal injuries in respect of which there is no issue that the that the accident involved him in significant trauma to his lower body;
· the fact that during the initial phases of the plaintiff’s management prior to his discharge from the Frankston Hospital those managing the plaintiff considered that his injuries carried with them the risk of the plaintiff requiring a hip replacement at some time in his life’
I am not satisfied that any real prejudice arises as to this issue.
Conclusions as to Prejudice
59 For the reasons set out above I am satisfied that the primary prejudice to which the defendant is exposed to in this instance involves general prejudice no better example of that being the statement as to the effect which the passage of time has had upon Mr Brand namely that his:
“…memory of the circumstances is not as precise as it otherwise would have been..”
60 There can be no doubt that it is extremely difficult to measure the impact associated with the presence of:
· general prejudice in the form of clouding or loss of memory:
· the specific prejudice associated with the loss of the police file the content of which is unknown;
upon the ability of the affected party in defence of the case brought against the party or the presentation of that party’s case.
61 In this instance given the time period which has elapsed I am satisfied that I should allocate considerable weight to the presence of the prejudice which arises in this instance.
62 That having been said I am equally satisfied that I should give due weight to the fact that the issues upon which Mr Brand will give evidence are relatively narrow and would largely be confined to evidence as to:
· the topography of the area insofar as it operated in any way to reduce his visibility of the plaintiff’s approach to the point of collision;
· whether he saw the plaintiff’s motorcycle or its lights as he approached the point of collision;
· the steps taken by him to avoid the collision;
63 Given the plaintiff’s severe injuries I am of the opinion that any potential loss of evidence as to any admission made by the plaintiff at the scene of the collision as to liability, would not create any significant injustice to the defendant’s management of the defence of the case in light of the diminished probative value of such an admission made in the context of the injury and shock occasion to the plaintiff by reason of the incident.
64 In weighing the issue of prejudice to the defendant in this instance I do so accepting that I should adopt the approach of Forrest J Gordon v Norwegian Capricorn line (Australia) Pty Ltd[14] namely:
“in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one which is a acceptably fair. The court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had stop the applicant must satisfy the court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”
[14] ['s 2007]'s VSC517, [86]
65 For the reasons set out above, notwithstanding the very significant delay which is present and the presence of the prejudice to the defendant to which I have referred, I am satisfied that the prejudice to the defendant in this instance is not fatal to the plaintiffs application and would not operate so as to make the chance of the defendant receiving an acceptably fair trial to be unlikely.
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.
66 There is no issue that the plaintiff consulted Slater and Gordon on 15 October 2015.
67 The plaintiff explained the reason for his decision to consult Slater and Gordon in the following terms:
· he acknowledged that he been told that the Frankston Hospital that it was likely that he would require hip replacement surgery later in his life;[15]
[15] joint court book page 8 plaintiff's affidavit dated 8 March 2017 para 6
· in April 2010 Mr Nigel Broughton advised him that he would eventually need a hip replacement but that he would not recommended that surgery for a man of his age with his symptoms namely an inability to surf and had some difficulty sleeping because of hip pain;[16]
[16] joint court book page 12 plaintiff's affidavit dated 8 March 2017 para 3
· during the last five years he his knee and hip had gradually deteriorated;
· the arthroscopy undertaken by Prof de Steiger in 2014 had been of minimal benefit to him,
68 In assessing the probative value of the plaintiff’s evidence to which I referred above it is appropriate in my opinion to consider the comments of Prof de Steiger in his report dated 5 October 2015 namely:
· that the plaintiffs hip arthroscopy did not seem to have helped him much;
· that he was too young to have a hip replacement;
· that he should delay any surgical intervention for a while longer;
which information I am satisfied when conveyed by Prof de Steiger to the plaintiff, in the context of his continued deterioration, most probably made it clear to the plaintiff that the writing as to his need to undergo hip replacement surgery was not only a matter of certainty but that the timing of the surgery was now fast approaching.
69 The plaintiff explained the reason for his decision to consult Slater and Gordon in the following terms:
“I did not know I could make a common law claim for damages but, with the deterioration of my symptoms, the knowledge of the requirement of a hip replacement in the future and the possible impact on my ability to work, when I saw an advertisement for a law firm, I spoke to a few people in late 2015 who said I should definitely find out if I had a claim.
As a result I had a phone conference with Slater and Gordon in October 2015 and subsequently received a letter of advice I understood from the conference and the letter that the time to make a claim had expired and that a case would have to be brought seeking an extension of time”.
70 Given:
· my satisfaction as to the absence of any knowledge by the plaintiff of the existence of a common law rights for the reasons previously indicated;
· my findings as to the fact that it was not unreasonable for the plaintiff to delay committing himself to the treatment associated with hip replacement surgery which remained the position of Doctor de Steiger even in October 2015;
I accept the plaintiff’s explanation as to his delay in seeking legal advice and for the reasons previously mentioned do not find that delay to be unreasonable.
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;
71 There is no issue that the plaintiff consulted Slater and Gordon on 15 October 2015.
72 By letter dated 15 October 2015 the plaintiff was advised by Slater and Gordon:
· of his common law rights:
· that if he was to make an application to extend the period in which you could commence a proceeding against the defendant and was to be unsuccessful, he would be exposed to the potential of meeting the defendant’s costs in the sum of between $10,000 and $20,000.[17]
[17] see the letter of advice from Slater and Gordon Court book 75
73 In his first affidavit the plaintiff explained his failure to provide Slater and Gordon with instructions to act on his behalf on the basis that it was his memory that he was advised that he would be exposed to legal fees in the vicinity of $200,000 and that he was “scared of proceeding with the claim because of the risk of a costs order being made against me.’’
74 In his second affidavit the plaintiff further explained his position as to the advice contained in the letter Slater and Gordon letter of 15 October 2015 namely that he understood the letter to inform him that:
· his costs exposure was between $10,000 and $20,000 should he bring an application under section 23A which failed: and
· Slater and Gordon would requiring to meet legal fees in the vicinity of $200,000 should he be successful in achieving an award of damages:
commenting:
“as I deposed” my previous affidavit I was scared of the prospect of an adverse costs order but I also thought the $200,000 was way too much for legal fees”
75 The plaintiff explained his decision to engage his present solicitors as follows:
· In early March 2016 he suffered a fall at work as the result of which he experienced extreme pain if he tried to move;
· At that time he was taken by ambulance to the Mildura Base Hospital where he was advised that his hip was ‘stuffed’ and that he would need to go a hip replacement
· He travelled to Melbourne the following day and saw Prof. de Steiger who advised him that hip replacement surgery could not be put off any longer;
· as the result of that advice he decided he:
“must obtain further legal advice and then consulted Maurice Blackburn on 14 April 2016”.[18]
[18] joint court book P9 plaintiff's affidavit 13 August 2016 para 10
76 This evidence given by the plaintiff was not the subject of challenge.
77 Further there is no issue that the plaintiff underwent hip replacement surgery on 13 July 2016.
78 There can be no doubt that the plaintiff took no steps for a very considerable period of time to seek to investigate any rights which he may have to commence a claim for damages in respect of his injuries or to protect those rights.
79 Further is not an issue that the plaintiff delayed in taking any action to commence an application the type of which he now brings notwithstanding the advice given to him that he should do so at the time at which he consulted Slater and Gordon in October 2015.
80 The plaintiff’s evidence as to the reason why he took no action after consulting Slater and Gordon namely because he was concerned:
· as to not only as to his own exposure to the defendant’s costs in the event that he failed; but also
· as the costs but as to the effect which the costs quoted by Slater and Gordon might have upon the sum he would eventually receive from any damages he would recover
at first glance by a lawyer for whom involvement in litigation is second nature seems unreasonable.
81 Equally as Forest J observed in Davies case:
“it is often easy for lawyers (and judges) to fall into the trap of evaluating a layperson’s actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about imitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period is fatal”.
82 In my opinion those comments by Justice Forrest are apposite to the present case and I adopt them.
83 I am of the opinion that the potential of:
· being exposed to a bill for legal costs for $20,000 or $30,000 in the context of a 23A application commenced in respect of a motor vehicle collision which occurred 25 years ago about which there could be no certainty of success; and
· having to meet legal costs in the event of a successful damages claim in the sum of $200,000;
might well cause a person with no understanding of the complexity of the law. to hesitate to take the next step.
84 In my opinion this is particularly so should the plaintiffs claim for damages to be limited largely to general damages, or should the claim carry with it the possibility of a significant finding of contributory negligence, in either case a deduction of $200,000 from the plaintiffs damages may well result in the plaintiff receiving very little compensation.
85 Having made that statement I am equally satisfied, given the time which elapsed in this instance between:
(i) the plaintiff being appraised of his common law rights and the operation of the Limitations Act: and
(ii) the plaintiff instructing Maurice Blackburn:
is a matter of some significance, his delay in this regard being not excused but rather being adequately explained.
86 I am equally satisfied that this delay should not be determinative of the outcome of this application.
Conclusion
87 After:
· weighing all the competing considerations to which I referred in the course of my analysis above; and
· bearing in mind always that the plaintiff bears 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 his case out of time notwithstanding the delay in advising the TAC of the existence of the claim.
88 I make that finding being satisfied that an order granting such leave to the plaintiff will not expose the defendant to prejudice of level which would make the chance of an acceptably fair trial to be unlikely.
89 Given the passage of time in this instance it is clearly in the interests of justice for all parties involved that the trial should not be delayed.
90 I propose to fix a date for the trial and to undertake the supervision of the pre-trial management of the matter to ensure that it is dealt with as expeditiously as possible.
91 I will hear submissions from the parties as to the precise form of the orders which are sought and as to costs.
- - -
0
3
0