Percey v Calvert
[2004] TASSC 60
•17 June 2004
[2004] TASSC 60
CITATION: Percey v Calvert [2004] TASSC 60
PARTIES: PERCEY, Cheryl Anne
v
CALVERT, Harvey Bryant
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 977/1996
DELIVERED ON: 17 June 2004
DELIVERED AT: Hobart
HEARING DATES: 9 and 11 June 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Time – Leave to take fresh step in proceedings in an action – Delay exceeding six years since last step taken – Factors relevant in the exercise of the discretion.
Supreme Court Rules 2000 (Tas), r56.
William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490; Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536 applied.
Aust Dig Procedure [283]
REPRESENTATION:
Counsel:
Plaintiff: R H Howroyd
Defendant: D J Gunson SC
Solicitors:
Plaintiff: Bennett Howroyd
Defendant: Gunson Williams
Judgment Number: [2004] TASSC 60
Number of Paragraphs: 25
Serial No 60/2004
File No 977/1996
CHERYL ANNE PERCEY v HARVEY BRYANT CALVERT
REASONS FOR DECISION MASTER S J HOLT
17 JUNE 2004
The plaintiff whilst a passenger was involved in a motor vehicle accident on 15 July 1993. She suffered bruising; a laceration to her right knee requiring stitches and a possible fracture of her left ankle. She was admitted as a patient at the Royal Hobart Hospital, x-rays were taken, her left ankle was placed in plaster and she remained in hospital for five days, taking Panadeine Forte for pain relief until she was discharged on crutches. The plaster was removed on 19 August 1993, but the plaintiff continued to use crutches. Two days later she injured her right ankle. In her affidavit she says that she “fell whilst on crutches”, but an epitome of her medical records at the Royal Hobart Hospital prepared by her solicitors indicates that she attended the hospital at 3.40 am on 21 August 1993 and includes the following:
“Presenting problem: … right ankle … laying changes involved in domestic … Alleged assault by ex-husband … injury to right ankle. Unable to bear weight … Broken lat mallartus (sic).”
The plaintiff said under cross-examination that she had received no treatment for her injuries after a period of a few months following the accident. In her affidavit she complains that her left ankle “swells and cracks”, that she gets cramps in her left foot and that she cannot run or walk long distances. She complains of psychological sequelae and in her affidavit says that the accident has “hindered” her in obtaining employment.
The plaintiff wanted compensation for her injuries and initially acted promptly. Within a month of the accident she had engaged solicitors and on 10 August 1993 those solicitors received an admission of liability. The solicitors obtained a number of medical reports on the plaintiff’s behalf between October 1993 and April 1996. Particulars of the claim and some medical reports were sent to the defendant’s solicitors in February 1996. The particulars include the following:
“The claimant’s symptoms since the accident have been as follows. Initially, she was in severe pain and although officially allowed to mobilise two days after the accident, she found on her discharge from hospital on 20 January (sic) that she suffered extreme pain if she put her left foot to the ground. This meant that she was virtually helpless able to care for herself very little indeed and suffering agony when moving on necessary visits to the bathroom.
She was assisted by visits from a nurse, meals on wheels, and a bath board and toilet seat provided by the Red Cross.
After some weeks the claimant developed aching in her neck and in her right arm which she attributed to her use of the crutches and to the awkward gait adopted by her because of her weak left ankle and right leg.
In mid October 1993 the claimant was still stiff in her back and her neck and because of swelling of the ankles and legs she could not walk far. She had commenced swimming and also exercising at home. By mid December her legs ached continuously preventing her from walking much at all, preventing her from squatting, standing up from any low seating position, and climbing step ladders or onto chairs at all – all of which interfered substantially with her conduct of her domestic chores, and which prevented her from seeking any employment. By this stage, she found that her employers had hired somebody else to take her place and no work was available.
The claimant’s difficulties have continued with aching and cramps in the legs becoming if anything worse by October 1994. There has certainly not been any significant improvement: aching, swelling and cramps still cause restriction and discomfort.
The claimant is left with an area of prominent veins on the surface of the left ankle at the site of the fracture, and this cosmetic defect is of some concern to her.”
In April 1996 two reports from psychiatrist, Dr Lennie Woo, were sent to the solicitors for the defendant with an invitation to make a settlement offer. In June 1996 a writ was filed; an appearance entered and consistently with the admission of liability no defence delivered. No step in the proceeding has been taken by the plaintiff since. Although an order was made on 18 February 1998 staying the proceeding until such time as the plaintiff submitted to a medical examination by a doctor appointed by the defendant it is common ground, at least for the purpose of the application before me, that the application for the stay and consequent order were not steps advancing the action to trial and so were not steps in the proceeding for the purpose of the Supreme Court Rules 2000, r56 (see Argo v Attorney-General (No 3) [2004] TASSC 51). .
Rule 56(1) is as follows:
“If a step, other than an application on which no order has been made, has not been taken in a proceeding for six years since the last step was taken, a party may not take any further step in the proceeding without the order of the court or a judge.”
The plaintiff has applied for leave to take the next step in the proceeding. Speaking of the equivalent in the High Court Rules in William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, it was said at 496:
“What it does is to forbid the further prosecution of proceedings in which no step has been taken for six years unless leave is given to continue them, and it follows that it is for an applicant for leave to show that there is good reason for excepting the particular proceedings from the general prohibition which the rule imposes.”
The proposition was repeated by Wilson J in Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536 at 540 – 541. In Appleby v Mobil Oil Australia Ltd Tas U/R 120/1997, Underwood J held that the statement in Crosby applied to the then equivalent Tasmanian rule being Rules of the Supreme Court 1965, o79 r11(2). Underwood J said at p1:
“The question of whether there is good reason for making the order will, of course, depend upon the circumstances of each case, but generally speaking relevant factors will be whether there is a reasonable excuse for the delay … and whether the respondent will suffer prejudice if the order is made.”
Underwood J went on to say at p2:
“A relevant matter may be the nature of the applicant’s case. An order will be an exercise in futility if it appears that the applicant will not be successful in the litigation even if an order giving leave to proceed is made. All relevant circumstances have to be balanced to see whether there is good reason for excepting the proceedings from the general prohibition against taking proceedings after the expiration of six years.”
Appleby was followed in Koziol v Gergel [1999] TASSC 12 and again in Argo Pty Ltd & Ors v Page Seager (A Firm) [2000] TASSC 89, with the latter involving a consideration of the new r56 which had replaced the old o79 r11(2).
Here, as I have said, liability for the accident has been admitted by the defendant and, accordingly, there is no suggestion on behalf of the defendant that allowing the action to proceed would be an exercise in futility. Beside the fact that the plaintiff has a viable case the only matters which I have been asked to consider by the parties concern the reason for the delay and any prejudice which might accrue to the defendant if an order giving leave is made. In considering the application I am conscious that no one feature or circumstance is necessarily determinative. For example, as Wright J said in Koziol at par15:
“… even inexcusable delay does not, per se, preclude a tardy plaintiff from proceeding (see Wilson v Bynon(1984) 2 Qd R 83, per Thomas J at 86 and Dempsey v Dorber(1990) 1 Qd R 418 per Connolly J at 420).”
After all relevant circumstances put forward by counsel for the parties have been considered the question is whether the plaintiff has satisfied her onus of demonstrating that there is good reason for making the order sought. If the plaintiff fails to so persuade the court the general prohibition will stand and the application must be dismissed.
I commence by examining the delay, the excuse given for it and the reasonableness of the excuse.
Counsel for both the plaintiff and the defendant adduced detailed evidence from the contents of their files as to the progress of the action. There is no factual dispute as to the progress, or lack of it since June 1996. In summary, nothing happened after the entry of the appearance on 25 June 1996 until 21 February 1997 when the defendant’s solicitors wrote to the plaintiff’s solicitors requiring the plaintiff to attend a medical appointment with consultant occupational physician, Dr Tim Stewart, in early 1997. The plaintiff did not attend the appointment because she was in Sydney at the time. The plaintiff’s solicitors made several unsuccessful attempts to communicate with her to ascertain her availability to see Dr Stewart. The plaintiff telephoned her solicitors on 10 August 1997 and again on 24 November 1997. On the first occasion she advised that she was in Sydney and would shortly be travelling to Darwin for a few months and that mail for her should be sent to her sister’s house in Tasmania. She gave her sister’s address and telephone number. In the November conversation the plaintiff said that she was in Melbourne, but was going to return to Sydney and then would be in Hobart from 23 December 1997 for an indefinite period. The defendant’s solicitors were advised accordingly and made an appointment for the plaintiff to see Dr Stewart on 15 January 1998. A letter advising of the appointment was sent to the address where the plaintiff had instructed that mail for her was to be sent, namely, her sister’s home in Tasmania. The plaintiff did not attend the appointment and as a result, as I have said, on 18 February 1998, an order was made staying the action until such time as the plaintiff submitted to a medical examination by Dr Stewart. The defendant’s solicitors, on instructions, then closed their file and at about the same time the plaintiff’s solicitors filed a notice ceasing to act. The plaintiff first saw her current solicitor about the matter in February 2002. The new solicitor agreed to act in April 2002. He examined the court file on 8 May, filed a notice of appointment as the plaintiff’s solicitor on 28 May. and on 26 June 2002 received the file from the former solicitors. By then more than six years had passed since the last step in the proceeding had been taken. The plaintiff’s new solicitor then spent several months considering the matter and early in 2003 entered into a debate by correspondence with the defendant’s solicitors as to whether or not leave to take the next step was required. Eventually in August 2003 the plaintiff’s solicitors filed an application for directions and it was not until the futility of that application (arising from the February 1998 stay and r56) became apparent when the application for directions was dismissed on 14 October 2003 that the new solicitor became aware of what was required to pursue the claim. The plaintiff submitted to a medical examination by Dr Stewart on 4 November 2003. That attendance lifted the stay which had been imposed on 18 February 1998 finally putting the plaintiff in a position where she could make her application under r56. The application and supporting affidavits were filed on 13 May 2004.
As to the lack of progress since June 1996 the relevant part of the plaintiff’s affidavit is pars 30-51 which are as follows:
“30 As a result of my motor vehicle accident I began to drink alcohol to excess.
31 I felt I needed to get away from Tasmania because of the stress of my accident and first moved interstate to live in Sydney in 1994. After that I would come back periodically to see my family and would then return to the Mainland.
32 On the Mainland I lived in Sydney except for one occasion when I lived in Melbourne.
33 In early 1997 I moved back to live in Sydney from Hobart.
34 In Sydney I was drinking a lot and had a nervous breakdown. I attended Westmead Hospital in Sydney as an in-patient as a result of these problems.
35 Whilst living in Sydney in 1997 I contacted my Hobart solicitors on various occasions. At one stage my solicitors said they would arrange medical appointments in Sydney for me but never did.
36 I never received a letter from my solicitors to attend an appointment in Hobart with Dr T Stewart on 15th January 1998.
37 My sister, Donna, is quite unreliable so that any letters sent to me c/- of her address in Hobart were unlikely to be received by me.
38 I did not return to Hobart for Christmas 1997. I think I returned to Hobart permanently in February 1999.
39 My father had a stroke and I came down to see him from Sydney. I think this was in early 1999.
40 When I was in Hobart I went to see my solicitor, Mr G Faulds. He said that he wasn’t prepared to do anything further unless I first paid his bill in the sum of about $4,000.00.
41 I was depressed after seeing my solicitor. I thought the whole situation looked hopeless.
42 I was unemployed and didn’t have any money and no means of raising $4,000.00. Neither my friends nor my family had that sort of money.
43 I have not been employed since my accident and have always been in receipt of government benefits. My accident has hindered me from obtaining employment.
44 I didn’t know what to do. I didn’t know anything much about lawyers, nor how to get another lawyer.
45 I also had no idea that I could be prevented from proceeding with my claim because of delay.
46 However, I still did not abandon my claim.
47 In the period to 2002 I had other problems concerning me particularly problems with my family.
48 My father was in poor health after his stoke and his death about two years ago. My mother has also been in poor health.
49 I had lots of problems with my son, Chris who was also battling with the effects of our motor vehicle accident and his drug addiction.
50 I had continuing psychological problems resulting from my motor vehicle accident.
51 In 2001 my son Chris, attended my present solicitor about his claim for damages and he suggested that I contact him. I contacted my present solicitor in February 2002.”
Leaving aside the question of whether or not correspondence came to the attention of the plaintiff whilst she was in Sydney between early 1997 and early 1999 and focusing on what she personally did to progress the claim it is apparent that over those two years all she did was make two phone calls to her solicitors (possibly more) and that these telephone conversations were not productive in advancing the action at all. The plaintiff when told by her former solicitors in February 1999 that they would not assist her further without their account being paid took no steps whatsoever to progress her action until she first saw her new solicitor in February 2002. The plaintiff’s assertion that it was lack of funds which contributed to the hold up after February 1999 came under intense attack in cross-examination, by counsel for the defendant Mr Gunson SC. It emerged in cross-examination that throughout the period of delay the plaintiff has been the recipient of Centrelink benefits. That whilst in Sydney in 1997 and 1998 she worked consistently in the sex industry on a good night earning as much as $300. She admitted that she did not declare her earnings to Centrelink or the tax office so that everything she earned she kept in addition to the Centrelink pension. She admitted that after her return to Tasmania commencing in 2000 and continuing until 2003 she worked in the sex industry under the name “Clorissa” advertising her services regularly. She charged $100 per half hour and did not tell Centrelink or the tax office and so continued to receive tax free the proceeds derived from providing sexual services and the pension. She did not explain why none of this money was used to fund her legal case. I am not persuaded that the reason for the delay included to any material extent financial constraints. The plaintiff simply took no interest in pursuing her action for many years. As can be seen from her affidavit the plaintiff attributes this lack of interest and activity to excessive alcohol use, living in Sydney, psychological problems, including depression and family problems arising out of her parents’ ill health and her son’s drug addiction.
The medical information submitted to the defendant’s solicitors in 1996 on behalf of the plaintiff was included in the evidence presented by the defendant. It is plain that psychological problems including stress and anxiety, the intake of prescription pharmaceuticals and the excessive consumption of alcohol all existed between 1993 and 1996 when it appears that the plaintiff was able to give adequate instructions to her solicitors. The report of general practitioner, Dr I Hunter dated 2 June 1994 includes:
“Counted up there are over a 100 recorded consultations from 1977 to 1994. Many have been long consultations and involve presentation with multiple complaints. Almost all of these polysymptomatic presentations have been diagnosed to be due to anxiety/depression problems. Most presentations have also resulted in councilling (sic) regarding her reliance on Benzodiazepine medication and trying to control her use of these to a reasonable amount. In this regard, in recent years we have managed to get her requests for Serepax down to an average of about 50 x 30 mg per month.”
Psychiatrist, Dr L Woo, in his report of 17 April 1996, said:
“In late 1994, Mrs Percey met her present defacto husband and left with him to live in Sydney, New South Wales. Unfortunately, feeling isolated in Sydney, her condition worsened. Her alcohol use became even more excessive; not infrequently she would drink more than a bottle of spirits a day. She suffered various complications of alcohol abuse including delirium tremors and blackouts. Her use of minor tranquillises also escalated and she was apparently admitted three times to hospital for overdoses. She was unable to tell me whether these were accidental or the result of deliberate self harm. She had also been admitted to Westmead Hospital for detoxification for excessive alcohol use.”
I find insufficient information in the material submitted on the hearing of the application to accept that the excessive use of alcohol, living in Sydney for much of the time, and ongoing psychological problems including depression adequately account for the many years of inactivity up until the plaintiff first saw her new solicitor in February 2002. This is because notwithstanding the existence of substantially the same features the plaintiff was able to satisfactorily progress her claim between the time of the accident in July 1993 and the issue of the writ in June 1996.
If the plaintiff’s new solicitor had given the matter prompt and detailed attention shortly after seeing the plaintiff in February 2002 this application for leave to take the next step in the proceeding would not have been necessary. The plaintiff could have been sent by her solicitor to see the defendant’s medical expert Dr Stewart promptly and immediately thereafter an application for directions made so that a timetable for the future conduct of the action could have been set. If these steps had been taken by mid-June 2002 the stay imposed in February 1998 would have automatically ceased to have effect and there would not have been a six year period of inactivity. Instead the plaintiff’s new solicitor did not arrange to have the plaintiff seen by the defendant’s medical expert until November 2003, and did not file the application for leave to take the next step in the action until May 2004.
It is apparent from what has been said earlier in these reasons that the plaintiff’s new solicitor had access to sufficient information from the court file and the file of the plaintiff’s former solicitors to understand what needed to be done to advance the action from shortly after he was first instructed by the plaintiff and that he failed to get to grips with what was required to progress the claim until after the dismissal of his application for directions on 14 October 2003. I have no reason to think that the plaintiff should be “saddled with responsibility” (Hall v Nominal Defendant (1966) 117 CLR 423 at 435) for her solicitor’s failure in this regard and so I consider that the plaintiff has a reasonable excuse for the period of delay, February 2002 to October 2003.
Although the solicitor knew what was required by October 2003 it took until May 2004 for the application to take the next step in the proceeding and the supporting affidavits to be filed. The new solicitor said in his affidavit that at all times since originally instructing him the plaintiff had indicated a “willingness … to finalise her claim”. Despite the cross-examination of the plaintiff being extensive it was not suggested that she caused the delay between October 2003 and May 2004 and I put the delay for this period down to the general slowness of her solicitor and for that reason consider that she has a reasonable excuse for it.
If notwithstanding the plaintiff’s lack of candour in her affidavit by putting forward as part of her explanation the delay that she was unemployed and dependent upon government benefits and notwithstanding my finding that there is a lack of a reasonable excuse for the long delay up until February 2002, I grant leave to take the next step in the proceeding the action will only now progress as it could have progressed in early 1997 had the plaintiff attended the medical appointment which the defendant had arranged with Dr Stewart. In short, the hearing of the matter will have been put back more than seven years. The next matter to be considered concerns whether notwithstanding this long delay the action can proceed without material prejudice to the defendant.
In her affidavit in support of the application the plaintiff identifies as the long term symptoms arising from her injuries, troubles with her left ankle and psychological problems. Paragraphs 52 and 53 of her affidavit are as follows:
“52 I continue to date to have problems with my left ankle. It swells and cracks. I get cramp in my left foot. It aches and I can’t run or walk long distances. I have to wear flat shoes and can’t stand for long periods. I have trouble getting into a car or onto and off a bus.
53 I continue to have psychological problems as a result of my motor vehicle accident. I still have occasional flashbacks to the accident. I am nervous and wary of cars and traffic.”
Although the plaintiff had suffered from arthritis for many years before the accident she said, under cross-examination, that she could not recall if she had had any medical treatment for her ankles. She said that the arthritic pain was mostly in her knee and her wrist on the left side. In his report to the plaintiff’s solicitors dated 15 March 1994, consultant rheumatologist, Dr Stewart Graham said:
“… by far and away the worst pains are those in both her ankles.
…
It would seem that none of these symptoms are new. In the outpatient’s letter directed to Ian Hunter from Dr Francis dated 11 August 1987, Dr Francis details the major symptoms of her arthropathy, that is to say an inflammatory arthritis or disease being pain in the tempromandibular joint, cervical spine, diffusely through her back as well as the knees, left greater than right, and both ankles. The left wrist had been a problem for many years.
…
At follow up in December of 1987, there was a problem with recurrent pain ‘all over’. …
The pattern of pain that Mrs Percey talks about now, is predominantly left ankle and may well be related to her accident, but it also may be related to her past arthritis. In fact, many of her complaints now read very similarly to those that she complained about in 1987.
…
Prior to the accident Mrs Percey was a very active lady, being ‘a fitness fanatic’, having her own small home gym. She was also working part-time as a cleaner. She tells me she has not been able to work or exercise because of the pain in her ankles. There is also some suggestion that she cannot work because of the pain in her back and neck.
…
I have no doubt that this woman has some degree of discomfort, however the difficulty is deciding precisely how severe that is, how restrictive that is, and to what extent that is part and parcel of her pre-existing inflammatory joint disease and how much is related to her accident.
…
Ankle joint range of movement is within normal limits. She has pain on palpation of the posterior structures in the ankle on the left and it appears swollen laterally.
This lady presents a number of problems. The information that I have from her general practitioner and from the outpatient notes suggest that there have been multiple problems in the past. The current problems would fit easily well with those but, clearly she has been involved in an accident and may well have exacerbated those. It is very difficult to give you a sensible answer as to precisely how much of this is due to the accident and how much is due to her pre-existing problems.”
When asked to elaborate Dr Graham in his report to the plaintiff’s solicitors dated 10 January 1995 said:
“In summary, I think you have direct evidence of trauma to the left ankle and if that is the predominant problem in this lady then you can relate a significant amount of it to the trauma of her accident. If however, it is far more generalised then I think you have to accept that it is arthropathic in nature and not related to her accident.”
It seems that any attribution of the ongoing left ankle problems to the accident will be dependent to some degree on the quality of the historical description of symptoms which the plaintiff will be able to give at the hearing. It may be that if the action is allowed to proceed the plaintiff will attempt to attribute a number of other physical problems to the accident. She says that shortly after the accident she fractured her right ankle as a result of falling due to difficulty using crutches. The epitome of the hospital records taken by the plaintiff’s solicitor, as already referred to, however, indicates that the fractured right ankle may have been the result of an assault. The report from Dr Stewart which the defendant had been endeavouring to obtain in 1997 was eventually received in November 2003, and shows a potential for assertions that a large number of health problems are attributable to the accident if the action is allowed to proceed. In that report Dr Stewart said:
“Sutures were required to lacerations to her knees …
…
Ms Percey states that she had a problem with her voice as a result of the seatbelt impacting against her throat and also with her right hip.
…
Ms Percey states that the motor vehicle accident resulted in her family ‘splitting up’.
…
Ms Percey is complaining of:
(i) aching and ‘swelling’ bones from the knees to the ankle;
(ii) problems with her ankles and having to wear boots to prevent swelling;
(iii) having difficulty on occasions walking up and down stairs;
(iv) severe pain in the neck that never goes away. She has been advised that she has torn ligaments in her neck that chiropractic treatment had not helped.
…
Ms Percey has not had treatment for injuries sustain in the accident in question over the past six years.
…
Ms Percey attributes the previously noted symptoms, the marital breakdown, the associated family disruption and her son’s morphine addiction to the motor vehicle accident.”
As with the arthritic problems, psychological problems also predated the accident. Psychiatrist, Dr Woo, in a report to the plaintiff’s solicitors of 17 April 1996 said:
“From about the age of 21, Mrs Percey suffered from panic attacks and agoraphobia and also symptoms of depression.
…
Shortly after the accident, Mrs Percey had resorted to alcohol to help her cope with her psychological symptoms. This use had gradually escalated. She found that her past symptoms of agoraphobia worsened and she resorted to use of prescription medications, initially the analgesic, Panadeine Forte and later the minor tranquilliser Oxazepam.
…
On retrospect, from the history given by Mrs Percey, it appears that Mrs Percey has suffered at least symptoms of a post traumatic stress disorder (PTSD) (according to DSM4, and possibly a full blown PTSD, as a result of the motor vehicle accident. Certainly her descriptions of nightmares, recurrent images of the accident, emotional numbing, irritability and an uncomfortable view about a foreshortening of life for her son are much more typical of this disorder than that of her past panic disorder with agoraphobia.
A recognised complication of post traumatic stress disorder is alcohol/substance abuse. Although it is difficult to directly attribute Mrs Percey’s use of these substances to her PTSD, it seems likely that she had started to use these substances either to help her cope with her PTSD symptoms or to deal with the number of complications which had arisen after the accident ie her pain and immobility from the injuries, her financial difficulties and her family problems. Mrs Percey’s use of alcohol and oxazepam would have qualified for the diagnosis of Alcohol Dependence (according to DSM4) and Sedative Hypnotic or Anxiolytic Dependence (according to DSM4).”
In a supplementary report dated 23 April 1996, however, Dr Woo said:
“She describes symptoms of a Post traumatic Stress Disorder and her vulnerability and the traumatic nature of the accident would suggest that this would not be an unexpected sequelae. However, from Dr Hunter’s report it appears that her presentations to him after the accident were largely related to pain rather than emotional distress, which one would have expected to have been evident according to the history she gave me. On the other hand it may be that Dr Hunter was not asked to report on her mental state or that Mrs Percey had not complained of her emotional problems.
…
In summary, I find that Dr Hunter’s report contradicts significantly with the history presented to me by Mrs Percey. The reliability of her history in general is therefore in question.”
If this matter progresses the defendant will be potentially exposed to a large number of serious complaints which the plaintiff may attribute in part or in whole to the accident. This was the case even before the period of inactivity began and it appears that the various doctors have always had trouble obtaining a reliable history from the plaintiff. It seems to me that the chances of now obtaining a reliable history are remote. In the ten years or so since the accident the plaintiff has abused alcohol and drugs. She admitted in cross-examination that she has a very poor memory with real difficulty recalling events, dates of events, the names of doctors she has seen and the symptoms which caused her to visit various doctors over the years. Added to this is the problem of the plaintiff being willing to make assertions without proper care. For example, at one point in cross-examination she told counsel for the defendant that she had not received a letter sent by her solicitors to her Sydney address in April 1995 when within a week or so she had in fact written to the solicitors acknowledging receipt of that letter. The plaintiff’s honesty generally provides an added complication. Certainly she has a track record of dishonesty at least insofar as her tax and pension affairs are concerned having failed to disclose substantial earnings over many years derived from working in the sex industry.
Counsel for the plaintiff submitted that if the matter proceeds the plaintiff’s compensation will be assessed by a reference to the objective medical evidence available and that accordingly I should infer that the claim will not be a large one and that a fair trial can still occur notwithstanding the long period of delay. The submission assumes that unless corroborated the plaintiff’s account of her symptoms over the years will not be accepted. Certainly that is a reasonable possibility, but this is not the trial of the action and it is not for me to pre-empt what the tribunal of fact will or will not have regard to.
Although the defendant has not identified any specific prejudice such as the prejudice which would arise where witnesses or documents are no longer available (and often the court will infer from the lack of such evidence that there is no material prejudice), in the circumstances of this case, I find myself unable to make the inference that delay has not resulted in the chances of a fair trial becoming unlikely. The circumstances being those outlined earlier, namely, the fact that the plaintiff has not had treatment for her alleged injuries for many years; the lack of availability of a clear and reliable medical history; the large variety of symptoms and complaints which the plaintiff may wish to attribute to the car accident; the plaintiff’s admission that her memory is poor; the plaintiff’s willingness to make assertions without due reflection and care and the plaintiff’s lack of honesty as indicated by her non-disclosure of significant income to either the tax office or Centrelink.
It is for the plaintiff to show that there is good reason for excepting her claim from the general prohibition imposed by r56. As I have said the plaintiff was less than candid when she put forward in her affidavit financial reasons as explaining in part the delay without disclosing apparently significant earnings over a long period of time in the sex industry. I do not consider that living outside Tasmania; psychological problems and alcohol and drug abuse provide a satisfactory excuse for the delay. On the evidence before me these features all existed prior to the issue of the writ and did not prevent the plaintiff advancing her claim in the seemingly satisfactory way in which she did in the two or three years following the accident. In the circumstances of this case I have not been prepared from the lack evidence of specific prejudice to infer that there will be no material prejudice. Although the plaintiff was a passenger in the car involved in the accident and an admission of liability has been made so that the plaintiff’s claim has some merit I remain unpersuaded that the justice of the case rests with granting to the plaintiff leave to take the next step in the proceeding. The application is dismissed.
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