Remocker v Manolopoulos (Ruling No 2)

[2011] VCC 1486

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-05060

ANDREW REMOCKER	Plaintiff
v
FRANK MANOLOPOULOS	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2011
DATE OF RULING:	21 October 2011 (Revised)
CASE MAY BE CITED AS:	Remocker v Manolopoulos (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1486

RULING

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Catchwords: LIMITATION OF ACTIONS – Limitation of Actions Act 1958, section 23A(1), (2) and (3) – Transport accident – personal injury – delay – prejudice to the defendant – synthesis of the applicable considerations in section 23A(3) – Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Richards v The State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service [2009] VSC 151; Cowie v State Electricity Commission [1964] VR 788; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 V 614; Tsiadis v Patterson [2001] VSCA 138 – pursuant to section 23A(2) the period within which the plaintiff's proceeding may be brought is extended to 8 November 2010.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett	Arnold Thomas & Becker Pty Ltd
For the Defendant	Mr D Masel	Solicitor to the Transport Accident Commission
HIS HONOUR:

Introduction

1          On 13 August 1996, the plaintiff was the driver of a motor vehicle which entered the intersection of Williams Road and High Street from Williams Road where it came into collision with a motor vehicle driven by the defendant.

2          Both the plaintiff and the defendant maintain that they each entered the intersection on a green light.

3          The plaintiff suffered extensive injuries for which he required extensive medical treatment. The injuries are adequately particularised in the statement of claim endorsed on the Writ.

4 The plaintiff filed a Writ on 8 November 2010 which was subsequently served upon the defendant. The defendant filed a Defence on 22 December 2010. The paragraph of the Defence which is relevant to the application before me is the pleading in paragraph 5 that the plaintiff's proceeding is statute barred by reason of the provisions of the Limitation of Actions Act 1958 ("the Act")

5          The application before me is brought by the plaintiff seeking an extension of time within which to bring the proceeding to 8 November 2010.

6          Mr J Brett of counsel appeared for the plaintiff, and Mr D Masel of counsel appeared for the defendant.

7          The only witness required for cross-examination was the plaintiff. Otherwise the evidence relied upon by the plaintiff and the defendant is contained in a Court Book handed to me by Mr Brett at the commencement of the proceeding and added to by Mr Masel so that it became a Joint Court Book (“JCB”).

8          Mr Brett tendered pages 10-69 of the Joint Court Book (Exhibit A) and Mr Masel tendered pages 70-82 (Exhibit 1).

The Noncontroversial Facts

9          Mr Brett provided me with a chronology of events, which events are the backdrop to the case put by the plaintiff for an extension of time. The events which are relevant to my consideration are as follows:

• 28 September 1977 – the plaintiff's date of birth.

• 13 August 1996 – the date of the transport accident.

• 16 August 1996 – the date upon which the plaintiff completed a TAC application form while an inpatient at The Alfred Hospital.

• 21 August 1996 – the date upon which the plaintiff completed a further TAC application form while an inpatient at the Bethesda Hospital.

• 11 April 1997 – the defendant appeared at the Prahran Magistrates’ Court and pleaded guilty to one count of exceeding the prescribed concentration a blood alcohol.

• 13 August 2002 – the limitation period expired.

• 2004 – the plaintiff consulted Rockman & Rockman, solicitors.

• July 2009 - the plaintiff consulted his present solicitors, Arnold Thomas & Becker.

• 9 July 2009 – the plaintiff's present solicitors applied to the TAC for an assessment of the plaintiff's level of impairment.

• 27 May 2010 – the TAC determine the plaintiff's level of impairment at 17 per cent.

• 13 October 2010 – the TAC issued the plaintiff with a serious injury certificate.

• 8 November 2010 – the Writ was filed in this Court.

• 8 November 2010 – an application for review was lodged with VCAT to review the determination of the plaintiff's level of impairment.

• 22 December 2010 – the defendant filed its Defence.

• 8 April 2011 – the plaintiff swore an affidavit in support of an application for extension of time.

• 21 April 2011 – the plaintiff filed a Summons seeking an extension of time.

• 12 May 2011 – the plaintiff served Interrogatories for the examination of the defendant.

• 7 July 2011 – the defendant served his Answers to the plaintiff's Interrogatories.

The Plaintiff's Evidence

10        The plaintiff was born on 28 September 1977. He was eighteen years of age at the time when the transport accident occurred. Both he and his passenger, Adrian Weinstein, suffered head injuries which have deprived both of any recollection of the events leading up to and concluding in the occurrence of the transport accident.

11        The plaintiff was removed from the scene of the transport accident by ambulance. He was admitted to The Alfred Hospital. He was an inpatient for about one week. He was subsequently transferred to the Bethesda Hospital where he was an inpatient for about three to four weeks. After he was discharged from the Bethesda Hospital, he attended as an outpatient for around six to eight months. He was also an outpatient at the Cedar Court Rehabilitation Hospital in Camberwell.

12        The plaintiff was unable to return to any employment for about one year following the occurrence of the transport accident. He had previously been occupied in the hospitality industry. He returned to work in that industry, but by about 2000 he was unable to tolerate that kind of work because of his injuries. His last employment of that kind was as a concierge at the Grand Hyatt Hotel.

13        The plaintiff obtained alternative employment with Foxtel for about six years full-time. He then worked for a company with an interest in the stock market, undertaking cold call sales for a few weeks. He then worked for Godfreys for about three years, selling vacuum cleaners, and later as a manager of one of its retail outlets.

14        The plaintiff met his wife in 2007. They married in 2008. His son was born on 18 August 2009. In August 2010, the plaintiff, his wife and child moved to Israel, where he presently resides permanently. The plaintiff works for a mobile phone company known as Israel Phones full-time.

15        Essentially, the plaintiff said that he had no knowledge that he had an entitlement to pursue a common law claim. He said that all he knew was that he could either seek a lump sum or have the TAC pay his medical bills. Mr Masel cross-examined the plaintiff regarding the plaintiff’s state of knowledge:

Q.	“Mr Remocker, at the time of the collision when you were about eighteen you had an understanding of your legal rights. Is that right?---
A.	No.
Q.	Did you have any belief as to what entitlement you had or didn't have as a result of being injured in a transport accident back then?---
A.	No.
Q.	You didn't have any belief as to an entitlement to a lump sum?---
A	Well, my parents, as far as I know, lodged a whatever with TAC. My affidavit has said that from what I did know - so my answer should be yes then.
Q.	I'm not asking a memory test of what you said in your affidavit. Let's start from the beginning. What did you understand at around the time the accident happened were your legal rights as a person injured in a transport accident?---
A.	I could have a look at being medically covered by TAC with anything relating to the accident. That was for the rest of my life, or I could look at a lump sum and then no ongoing support by them.
Q.	Is it your evidence that as you sit here today you remember that that's what you knew or believed when you were eighteen?---
A.	Yes.
Q.	Who had you heard that from, that you had the right to choose between medical benefits or a lump sum?---
A.	I don't recall.
Q.	Had you heard it from a lawyer?---
A.	Not that I'm aware of, no.
Q.	Had you ever been to see a lawyer?---
A.	No, not at that stage, no."[1]

[1]             Transcript 9-10

16        The plaintiff said that he eventually sought advice from Rockman & Rockman. Mr Ray Rockman, who I assume is a solicitor and a principal in that firm, who was a friend of the plaintiff's family. The plaintiff saw Mr Anthony Rockman who he described as the son of Mr Ray Rockman. The plaintiff said that he has no recall whether he obtained any advice from Mr Anthony Rockman. Mr Masel cross-examined the plaintiff about his retainer of Rockman & Rockman:

Q.	“Did someone nag you to go and see a solicitor?---
A.	Nag me? My mum suggested and eventually I went and saw Rockman & Rockman.
Q.	When did your mum first suggest to you that you should go and see a solicitor?---
A.	I couldn't say. I don't know.
Q.	Was it the same day as you went to see Rockman & Rockman or had she been onto you for that for some time?---
A.	I can't recall, sorry.
Q.	I'm sorry?---
A.	I can't recall.
Q.	Is it possible that your mum had been onto you for some time to see a solicitor, but that you no longer can remember her nagging you to do that?---
A.	Anything is possible, yes. I can't say, ‘No, it's not’.
Q.	Was it just your mum's suggestion that you see a solicitor or was she insistent that you see a solicitor? Did she insist on it?---
A.	There was no insistence.
Q.	There was no insistence?---
A.	No. When she mentioned it, she said, ‘We have family friends’, and that's when I went and saw them."[2]

[2]             Transcript 12

17        Mr Masel also cross-examined the plaintiff on the product of his retainer of Rockman & Rockman:

Q.	“Then you go and see someone at Rockman & Rockman at your mum's suggestion. Is that right?---
A.	Yes.
Q.	Who did you see at Rockman & Rockman? Do you remember or would you be guessing?---
A.	As far as I remember it was the son of the founder, Anthony.
Q.	Do you remember going to see him in his office or did you see him in someone's home or where did you - - -?---
A.	In his office.
Q.	Did you take him any documents?--
A.	No, not that I can remember.
Q.	Do you remember what he asked you?---
A.	I had to follow up on something. I honestly can't remember what it was now. But I never went back. I don't remember what it was I had to follow up on.
Q.	Is it fair to say then that you don't remember whether you followed up on the something or do you remember that you didn't follow it up?---
A.	Well, because I never went back I'm assuming I never followed up.
Q.	You don't recall what it is that he asked you to follow up?---
A.	No, I don't.
Q.	Do you remember anything of any advice that he gave you?---
A.	No.
Q.	In your affidavit at paragraph 16 you say, ‘I do not recall receiving any particular advice about rights’?---
A.	Yes.
Q.	Is it fair to say - this is from Rockman & Rockman - is it fair to say you don't recall receiving any particular advice about anything from Rockman & Rockman?---
A.	Yes."[3]

[3]             Transcript 16-17

18        A subpoena was served on Rockman & Rockman. The file produced by Rockman & Rockman in answer to the subpoena contains a letter dated 20 July 2009 addressed to Arnold Thomas & Becker, which reads:

"We refer to your own dated authority from Andrew Remocker and now enclose a copy of the Inpatient Discharge Summary which is the only document we have on our file."[4]

[4]             JCB 26

19        The discharge summary is a discharge summary of the Bethesda Hospital dated December 1996. It contains a brief description of the plaintiff's background particulars and something of the injuries which he suffered in the transport accident and his subsequent management and progress.[5]

[5]             JCB 27-28

20        After initially retaining Rockman & Rockman, the plaintiff not only did not return, but took no step to obtain any legal advice of any kind relevant to the transport accident until his wife suggested that he obtain some legal advice. It was then that he sought advice from Arnold Thomas & Becker in about July 2009.

21 Mr Masel cross-examined the plaintiff on whether he had a background in his education and generally which would have exposed him to persons in the legal profession. The plaintiff said that he did not have any school friends or other friends who were lawyers,[6] and that the only lawyer he knew of, other than Rockman & Rockman, was a barrister known to one of his sisters, but not known to him.[7]

[6]             Transcript 12-13

[7]             Transcript 13 and 30

22        Ms Michel Margalit is a solicitor in the employer of Arnold Thomas & Becker. She swore an affidavit on 14 October 2011 in which she says that the plaintiff first sought advice from Arnold Thomas & Becker on 6 July 2009. For the most part, her affidavit is devoted to setting out a chronology of events which occurred following the plaintiff first seeking advice from Arnold Thomas & Becker. Mr Masel did not challenge the accuracy of the chronology.

23        It is clear enough to me from the matters deposed to by Ms Margalit and the exhibits to her affidavit that Arnold Thomas & Becker acted with expedition in gaining an understanding of the potential in the plaintiff's common law claim and getting the plaintiff to a point where a serious injury certificate was granted which then entitled him to file the Writ.

24        Mr Masel also cross-examined the plaintiff regarding his use of a number of illicit drugs, namely, cannabis, ecstasy, speed and cocaine. The plaintiff admitted to using illicit drugs in significant quantity up until about 2006. He denied that the extent of his drug use interfered with his capacity to work.[8]

[8]             Transcript 29

25        Mr Masel cross-examined the plaintiff regarding his work history, and in particular, that the effluxion of time had led to the loss of documents which were relevant to the plaintiff's work history, depriving the defendant of the ability to test the quantum of the plaintiff’s claim for loss of earning capacity.[9]

[9]             Transcript

The Legal Principles

26 Section 23A(2) of the Act provides that the Court can extend the period within which an action can be brought for such period as the Court determines if the Court decides that it is just and reasonable to do so.

27        Subsection (3) is in the following terms:

"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."

28        Mr Masel provided me with a very helpful outline of argument in which he referred to a number of relevant authorities. It seems to me that the principles which apply to this application can be summarised as follows:

• The onus in establishing that it is just and reasonable to grant the plaintiff's application is borne by the plaintiff.[10]

• If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice.[11]

• The competing considerations referred to in subsection (3) are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that is just and reasonable to extend the limitation period.[12]

• The delay referred to in subsection (3) is the delay between the accrual of the cause of action and the making of the application for an extension of time.[13]

• The plaintiff cannot avoid any delay period resulting from the conduct of his legal representatives being considered as delay for which he is liable.

• If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, the prejudice of which account can be taken is prejudice which has come about by reason of a lapse of time involved in that period of delay[14] which can be established by the defendants, and the extent to which there is likely to be prejudice arising from mere delay in itself, when it is inordinate, may be taken as evidence of prejudice.[15]

• The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of, the limitation period. What must be considered is that the defendant's potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant.[16]

[10]           Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Richards v The State of Victoria & Ors [2001] VSC 52 at paragraph 11, and Delai v Western District Health Service [2009] VSC 151 at paragraph 21

[11]           Cowie v State Electricity Commission [1964] VR 788 at 793; Brisbane South Regional Health Authority (supra) at 547

[12]           Bell (supra) at 125-126; Tsiadis v Patterson [2001] VSCA 138 at 123, and Delai (supra) at paragraphs 21-22

[13]           Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 11 and Delai (supra) at paragraph 22

[14]           Lord v Australian Safeway Stores Pty Ltd [1996] 1 V 614 at 622

[15]           Tsiadis (supra) at 123-124; Delai (supra) at paragraph 23, and Brisbane South Regional Health Authority (supra) at 551

[16]           Brisbane South Regional Health Authority (supra) at 554-555

Length of the Delay

29        The plaintiff’s cause of action accrued on 13 August 1996. By the time the plaintiff made the application for extension of time by Summons filed on 21 April 2011, just over fourteen years had elapsed.

Findings on the Evidence

30        I accept the plaintiff's evidence that, at the time when the transport accident occurred, he was unaware that he had a right to make a common law claim for damages. I accept that when the claim forms were lodged with the TAC, that the plaintiff believed that the only source of compensation available to him were no fault benefits which the TAC was liable to meet.

31        However, the plaintiff's state of knowledge must have altered when his mother urged him to retain Rockman & Rockman. After all, he went to their offices and spoke to Mr Anthony Rockman who, I infer, gave the plaintiff some advice, because Mr Rockman then set about obtaining the discharge summary of the Bethesda Hospital. He would not have obtained that unless he had in mind to pursue either a no fault claim or perhaps even a common law claim on behalf the plaintiff. There is no other explanation which can logically be reached for him taking that step.

32        Mr Rockman asked the plaintiff to undertake some enquiries of his own, but the plaintiff did not make those enquiries, nor did he return to see Mr Rockman any stage. It is likely, I infer, that had the plaintiff undertaken those enquiries and returned to see Mr Rockman, that his pursuit of a no fault claim at least would have been advanced to some degree, and the plaintiff would have been given some advice, or at least had steps taken toward him acquiring a greater state of knowledge of his rights.

33        Mr Brett submitted that because Rockman & Rockman are not seen in the common law jurisdiction of the County Court, that I should infer that in some way they either did not have sufficient experience about no fault and common law claims and therefore not to have been able to advance the plaintiff’s knowledge to any material degree. I do not accept that any solicitor in private practice in this State would not have some modicum of knowledge that a no fault system exists for persons injured in a transport accident.

34        Although nearly eight years had elapsed by the time the plaintiff retained Rockman & Rockman, inevitably he would have been in a far better position then than now to give instructions and have a case prepared for the purpose of obtaining serious injury and ultimately prosecuting a common law claim and also meeting a defence that the proceeding was statute barred.

35        Mr Masel did not submit that there was anything done by Rockman & Rockman, or anything which they failed to do which constitutes any negligence on their behalf, nor did he make any similar submission with respect to the steps taken by Arnold Thomas & Becker after it was retained by the plaintiff. So the issue of having an alternative cause of action against either firm of solicitors is something which I will ignore.

36        Despite having his mother trigger a concern in his mind that he should seek legal advice, the plaintiff blithely got on with his life, ignoring his legal rights, until he was goaded into seeking further advice by his wife which led to his retainer of Arnold Thomas & Becker on 6 July 2009.

37        I accept that the combination of the plaintiff’s youth, his ignorance of the law in general, and the fact that he had suffered a head injury and serious musculoskeletal injuries, explains the initial period of delay between 13 August 1996 and 2004 when he retained Rockman & Rockman. It is more difficult to accept that he has any tangible explanation for the delay which then occurred between 2004 and 2009 when he retained Arnold Thomas & Becker. By that stage he knew that a claim was been lodged with the TAC, that he had a right to no fault payments, and that he could be aided in his pursuit of whatever claims were available to him with the aid of legal advice.

38        The delay between retaining Arnold Thomas & Becker and ultimately filing the Writ on 8 November 2010 is partly explicable by Arnold Thomas & Becker needing to obtain instructions from the plaintiff and sufficient medical reports, and no doubt other evidence, in order to compose an application for no fault benefits, and also an application for serious injury. However, that period of delay cannot be forgiven. It is part of the delay for which the plaintiff is responsible and which he is obliged to explain.

39        Mr Masel submitted that the prejudice which has flowed from the delay is consistent with the observations made in many of the authorities. I do not intend to repeat them here, but to simply refer to my summary of those propositions in paragraph 28 above.

40        However, I think there is significant merit in the submissions made by Mr Brett that the prejudice to the defendant is modest.

41        Mr Brett submitted that the only witnesses to the collision are the plaintiff, Mr Weinstein and the defendant. He submitted that the plaintiff and Mr Weinstein have always maintained that they have no recollection of the occurrence of the transport accident. The defendant, on the other hand, has always maintained that he has a clear understanding of the occurrence of the transport accident, and indeed, has sworn Answers to Interrogatories that he entered the intersection on a green light which must mean that the plaintiff entered the intersection on a red light.

42        Mr Masel relied on the affidavit of Mr Pola, Acting Senior Sergeant sworn 15 June 2011. Mr Pola attended the scene of the transport accident in his role as an investigating police officer. He prepared a collision report. It was pointed out to me by Mr Masel and Mr Brett that for some reason Mr Pola misunderstood the direction of travel of the motor vehicle driven by the plaintiff and the defendant. In the diagram on the second page of the collision report he has the plaintiff travelling west along the High street when in fact he was travelling south along Williams Road, and he has the defendant travelling south along Williams Road.

43        Mr Pola swore that he has no recollection of the transport accident other than what is in the collision report. Mr Masel submitted that the prejudice to the defendant is that the effluxion of time has robbed Mr Pola of any knowledge of his inspection of the scene of the transport accident and any conversations he may have had with any of the persons involved in it.

44        Mr Brett submitted that the potential evidence which Mr Pola could give has been overstated. Firstly, he submitted that Mr Pola did not witness the occurrence of the transport accident. Secondly, because Mr Pola misunderstood the direction of the travel of each of the motor vehicles, it would make his evidence of no value to either the plaintiff or the defendant. Thirdly, the collision report does not refer to there being any witnesses to the transport accident, and fourthly, that if there had been an interview with either the plaintiff or the defendant, or anyone else for that matter, there are no documents attached to the collision report which one would expect there to be in case any interviews had occurred and were reduced to writing.

45        Mr Brett also submitted that there is no evidence from Mr Pola to suggest other than the collision report comprises the whole of the material produced by him upon his inspection of the scene of the transport accident or that any relevant documents have been destroyed or lost.

46        In the end Mr Brett submitted that nothing has changed relevant to the question of liability despite the effluxion of over fourteen years since the transport accident occurred. He emphasised that the plaintiff and Mr Weinstein have no recollection of the transport accident, and the defendant has an intact memory of its occurrence.

47        After reading the affidavits of the plaintiff and Mr Weinstein, the defendant's Answers to the plaintiff's Interrogatories, and the affidavit of Mr Pola, it seems to me that the submissions made by Mr Brett have great merit. I find that nothing has changed despite the effluxion of such a significant period of time, and that the plaintiff and the defendant are in as good a position now to adduce evidence about how the transport accident occurred as they would have at any earlier point in time. I am fortified in reaching that conclusion because apart from the defendant's Answers to the plaintiff's Interrogatories, the defendant has not given any other evidence to suggest that the effluxion of time has played any role at all in depriving him of a capacity to give evidence of the events leading up to and concluding with the occurrence of the transport accident.

48        The purpose of Mr Masel's cross-examination of the plaintiff's drug use and his working history was to demonstrate that the defendant cannot now make an assessment of the plaintiff's claim for loss of earning capacity.

49        Mr Brett submitted that Mr Masel’s submission is an overstatement of the complexity of the case which will be advanced by the plaintiff. He submitted that the plaintiff's case is a relatively simple one, and of which the TAC knows a great deal. He referred me to the affidavit of Ms Margalit, and in particular, to a letter of the TAC addressed to Arnold Thomas & Becker dated 14 September 2009[17] which refers to all of the medical reports obtained from treating medical practitioners, hospitals and para-medical practitioners, correspondence with treating medical practitioners, hospitals and para- medical practitioners, and correspondence with the plaintiff.

[17]           JCB 36-38

50        It occurs to me that the TAC has in its possession a fairly healthy historical record of not only the plaintiff's injuries, but also his medical treatment going back as far as September 1996. For example, one species of documents disclosed in the letter are medical certificates from Bethesda Hospital. The first is dated 7 September 1996 which is just over three weeks following the occurrence of the transport accident. Although I have not been given any of the materials referred to in the letter, it occurs to me that a skilful solicitor in the employee of TAC would be able to obtain a very good impression of the injuries suffered by the plaintiff and his treatment by reading that material.

51        The real complaint made by Mr Masel is the response to the subpoena served upon the plaintiff's former employers. Mr Brett's submission in reply is that the plaintiff's claim relevant to loss of earning capacity will be based upon his occupation in the hospitality industry before the transport accident occurred and also on the occupations he pursued subsequently, but that it is most likely to be measured by looking at what the plaintiff was capable of doing before the transport accident occurred, what he has been capable of doing subsequently and what he is now capable of doing. He submitted that there is really no novelty in the plaintiff's claim for loss of earning capacity in it being measured in that way.

52        I think the submission made by Mr Brett is a rather more realistic. It appears to be a fairly straightforward claim with really no novel aspects to it in the context of the way in which common law damages claims are conducted.

Conclusion

53        I will now set about synthesising the relevant considerations in subsection (3). Firstly, I am satisfied that the length of delay is very significant, if not inordinate. Secondly, I am satisfied with the plaintiff's explanation for the delay between the date of the occurrence of the transport accident and his retainer of Rockman & Rockman, but I am not satisfied that he has given a sufficient or plausible reason for the delay thereafter. Thirdly, and allied to the plaintiff's explanation for the delay, I am not satisfied that the plaintiff acted promptly in taking the necessary steps to obtain medical, legal or other advice.

54        I am satisfied that there is prejudice to the defendant by reason of the effluxion of time, and I repeat my reliance upon the authorities which I have summarised in paragraph 28 when dealing with the question of prejudice of that kind.

55        However, even in the presence of such delay, insufficient or plausible reason provided for the delay, and the lack of prompt steps taken by the plaintiff to obtain medical, legal or other advice the extent to which all that amounts to prejudice upon which the defendant can rely, does not of itself mean that it is not just and reasonable to extend time.

56        I have decided that I should extend the time within which the plaintiff's proceeding may be brought to the date upon which the Writ was filed, that is, 8 November 2010.

57        Essentially, my reasons for doing so are consistent with these submissions made by Mr Brett. The only witnesses to the collision are the plaintiff, Mr Weinstein and the defendant. Their understanding of how the collision occurred in the state of the traffic lights has not altered. The letter of the TAC dated 14 September 2009 has persuaded me that the TAC has all of the medical material it requires to gain a sound understanding of the plaintiff's injuries and the consequences to the plaintiff, and I think Mr Brett's submission relevant to the manner in which the plaintiff's loss of earning capacity claim will be advanced does not persuade me that the defendant will suffer any real prejudice in defending that claim.

Orders
58	In the circumstances, I will order that pursuant to section 23A(2) of the Act, that the period within which the plaintiff's proceeding may be brought be extended to 8 November 2010.
59	In advance of the publication of these reasons, I have considered a large body of applications of this kind before Judges of this Court. The dominant order has been that the costs be in the cause. It is the order I intend to make; however, I will allow the Counsel to address me on that issue before finally making that order.

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