Rhodes v O'Neill - [2017] TASFC 1

[2017] TASFC 1

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Rhodes v O'Neill [2017] TASFC 1

PARTIES:  RHODES, Natasha
  v
  O'NEILL, Craig Andrew

FILE NO: 970/2016
JUDGMENT

APPEALED FROM: O'Neill v Rhodes [2016] TASSC 17

DELIVERED ON:  20 January 2017
DELIVERED AT:  Hobart
HEARING DATE:  7 October 2016
JUDGMENT OF:  Wood, Estcourt and Brett JJ

CATCHWORDS:

Limitation of Actions – Limitations of particular actions – Simple contracts, quasi contracts and torts – Tort actions involving personal injuries – Actions for damages in respect of personal injuries to be brought within three years from date of discoverability – Finding that plaintiff did not have actual or constructive knowledge that injuries were sufficiently significant to warrant bringing proceedings – Plaintiff's solicitor wrote letter to statutory insurer indicating had instructions to make a claim for damages – Implications for whether the plaintiff had actual knowledge at that time – Significance of letter when no medical or legal evaluation of injuries – Whether a finding that letter written on instructions was mandated – Whether an inference was open that the plaintiff and his solicitor were at "cross purposes" – Inferences to be drawn from the plaintiff's failure to call his solicitor on the trial – Significance of absence of evidence from the plaintiff as to when actual knowledge was acquired.

Limitation Act 1974 (Tas), ss 2(1)(c), 5A(3)(a).
Civil Liability Act 2002 (Tas), s 27

Allianz Australia Insurance Limited v Mercer [2016] TASFC 2, followed.
Jones v Dunkel (1959) 101 CLR 298; HML v The Queen (2008) 235 CLR 334, referred to.
Aust Dig Limitation of Actions [1024]

REPRESENTATION:

Counsel:
             Appellant:  Mr K Read SC
             Respondent:  Mr B McTaggart SC
Solicitors:
             Appellant:  Dobson Mitchell Allport
             Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2017] TASFC 1
Number of paragraphs: 76

Serial No 1/2017
File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

WOOD J
ESTCOURT J (Dissenting)
BRETT J
20 January 2017

Order of the Court

Appeal dismissed.

Serial No 1/2017
File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

WOOD J
20 January 2017

I have had the advantage of reading the reasons of Estcourt and Brett JJ. I agree with the conclusion reached by Brett J that none of the grounds of appeal have been made out. I agree substantially with his Honour's comprehensive reasons. I wish to mention a slight departure from his Honour's reasoning regarding the approach to be taken to par (c) of the definition of "date of discoverability" in the Limitation Act 1974, s 2(1), and also make some brief comments of my own regarding par (c) and grounds 1 and 3.
In terms of actual knowledge and the approach to be taken, his Honour refers to a dual consideration by the Court, the second aspect involving an assessment on an objective basis. I would rather emphasise a matter which I expect leads to the same result. Both actual and constructive knowledge require knowledge of the fact referred to in par (c) of the definition. The ordinary meaning of knowledge is that the state of mind (actual or imputed) involves an awareness of a situation or fact: Macquarie International English Dictionary, 2nd ed (2004) at 1037. A mere subjective belief without awareness of facts does not equate to knowledge and is not sufficient for the purposes of par (c). A misinformed or an uninformed belief that the injury is sufficiently significant to warrant bringing proceedings is not knowledge and falls short of what is required for time to run.
The question of whether a plaintiff knew or ought to have known that his or her injury was sufficiently significant to warrant bringing proceedings may, depending on the circumstances, need to take into account a statutory threshold, such as that found in s 27 of the Civil Liability Act 2002: Allianz Australia Insurance Limited v Mercer [2016] TASFC 2 per Porter J at [84]–[86].The analysis of the law by Porter J in Mercer highlights that the question is answered on a case by case approach. In Mercer, Porter J stated at [85] that it is not every case which involves legal or medical evaluation. His Honour pointedly stated that "in certain circumstances" the knowledge referred to in par (c) will involve legal and medical information and evaluation: [84]. In Harris v Woolworths [2010] NSWSC 25, R A Hulme J stated at 182: "But the degree to which matters within such expertise [legal and medical] need to be known with precision will depend upon the circumstances of the individual case. There will be cases in which it will be patently and immediately obvious that an injury is so serious that all of the statutory thresholds will be exceeded without having to wait until the injury has stabilised." There will be some cases where the seriousness of the injury will be immediately obvious.
However, this is not such a case. At the material time, up until 21 May 2006, it was unknown whether the bringing of an action would be warranted. The injuries did not require the respondent's hospitalisation or even immediate medical intervention; they had been assessed as multiple soft tissue injuries; by 21 May 2006, some six weeks after the accident, the respondent had had an x-ray of his wrist but no other medical investigations had been undertaken; he had seen his general practitioner a number of times; and he had been advised to take analgesic and anti-inflammatory medication. His general practitioner had not prescribed pain relief or other medication. The respondent's evidence was that he had thought his injury would "get better" and there was no evidence that that was not his state of mind. He had had two to three days off work and was experiencing pain, but was still working full-time.
Ultimately, it was the respondent's back injury and psychological sequelae which proved to be incapacitating. It transpired that the other injuries to his neck, left shoulder and wrist were minor. In the period after his accident, and before 21 May 2006, he had had no specialist treatment or advice regarding his back injury or any of his other injuries. The CT and MRI scans which revealed the injury to his low back had not yet been conducted.
This was a case where, as stated by the learned trial judge at [23], "Actual or constructive knowledge as referred to in par (c), in this case, would have to involve consideration of s 27 of the Civil Liability Act 2002." The respondent had had no legal advice regarding s 27 and whether the threshold might be met. This was unsurprising as the medical information to enable that advice to be given was not yet available. As stated by his Honour at [28] "it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss".
In the discrete circumstances of this case I do not regard Mr Barclay's letter asserting an intention to institute proceedings as having the significance that it might in other circumstances. Accepting that it can be inferred (more readily so because of the failure to call Mr Barclay) that the respondent agreed to Mr Barclay writing to the Motor Accidents Insurance Board, that does not advance the inquiry regarding par (c). In the context of this case, the letter was not determinative of actual or constructive knowledge of the fact in par (c) of the definition. The "claim" referred to in the letter was as yet unsupported by medical information or evaluation, and there was no evidence of a legal evaluation having been undertaken or communicated to the respondent incorporating a consideration of s 27. It may have transpired that the foreshadowed claim to institute proceedings was negated by medical information once it became available. In the circumstances of this case, according to the evidence, the foreshadowed claim was an "empty assertion" and may have remained so. As stated by the learned trial judge, the "claim" could only have been a conditional one at that time. As it transpired the injury was sufficiently serious to warrant proceedings, but that was not discovered until some time after 21 May.
In the context of this case, it was open to his Honour to treat the letter as lacking the significance contended for by the appellant. It was entirely open for his Honour not to be affirmatively satisfied that the fact and contents of the letter established actual knowledge of the fact referred to in par (c) of the definition. Ground 3, which asserts that the inference was not open that if the respondent agreed to Mr Barclay writing to the MAIB the two were at cross-purposes, concerns an observation which was merely subsidiary to the learned trial judge's conclusion regarding the letter and its lack of significance in terms of the respondent's knowledge. The observation that such an inference was open was unassailable and, as explained, the conclusion about the letter and its lack of significance was open.
Ground 1 asserts that a finding was mandated that the respondent instructed Mr Barclay to write in terms that he had instructions to make a claim for damages in common law. Similarly, this ground falls away if the trial judge's approach is correct in failing to be satisfied that the contents of the letter establishes actual knowledge of the respondent. His Honour did not need to make a finding about the genesis of the contents of the letter if, as he made clear, the contents of the letter were ultimately not significant to his determination of the issue regarding par (c).
Having regard to these matters and the reasons stated by Brett J, grounds 1 and 3 have not been made out. For the reasons stated by Brett J, ground 2 fails. I would dismiss the appeal.

File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
20 January 2017

The appeal

This is an appeal from the decision of Porter J of 30 March 2016 in O'Neill v Rhodes [2016] TASSC 17.
The respondent, Mr O'Neill, was injured in a motor vehicle accident on 8 April 2006. The utility he was driving was stationary preparing to make a turn when it was struck from behind by a vehicle driven by the appellant, Ms Rhodes.
The respondent sued the appellant for damages for personal injuries, and while the appellant admitted that she was negligent, she nonetheless pleaded in her defence that the respondent had not brought his action within three years of the "date of discoverability" as required by s 5A(3)(a) of the Limitation Act 1974 (the Act). The writ was issued on 20 May 2009 and the appellant contends that the date of discoverability was before 21 May 2006.
Section 5A of the Act provides as follows:
"5A   Actions in respect of personal injuries incurred on or after commencement day
(1)   This section applies only to an action where the cause of action accrues on or after the commencement day.
(2)   For the purpose of this section, 'personal injury' includes any disease and any impairment of a person's physical or mental condition.
(3)   An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:
(a) 3 years commencing on the date of discoverability;
(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action.
(4)   An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person is taken to be an action referred to in subsection (3).
(5)   A judge may extend the period of limitation referred to in subsection (3)(b) to the expiry of 3 years commencing on the date of discoverability having regard to the justice of the case and, in particular to —
(a) whether the passage of time has prejudiced a fair trial of the action; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
(6)   The periods of limitation specified in subsection (3)(a) and (b) apply to the personal representative of a deceased person commencing at the earliest of the following times:
(a) the date when the deceased person knew that personal injury —
(i)    had occurred; and
(ii)   was attributable to the conduct of the defendant; and
(iii) was sufficiently significant to warrant bringing proceedings;
(b) the date when the personal representative was appointed, if he or she knew or ought to have known the date of discoverability at that time;
(c) the date when the personal representative first knew or ought to have known the date of discoverability, if he or she acquired that knowledge or ought to have acquired that knowledge after being appointed to that position."
Section 2(1) of the Act provides that the "date of discoverability" in the case of an action for damages for personal injuries means the date when the respondent knew or ought to have known that personal injury or death:
(a)had occurred; and
(b)was attributable to the conduct of the appellant; and
(c)in the case of personal injury, was sufficiently significant to warrant bringing proceedings.
The learned trial judge was not satisfied that the date of discoverability was before 21 May 2006 and accordingly his Honour held that the limitation defence contended for by the appellant failed. His Honour went on to assess damages.
The appellant has appealed on three grounds as follows:
"1The learned trial Judge erred at [28] of his reasons for judgment in failing to find that the plaintiff instructed Mr Barclay to write to the MAIB advising that he had 'instructions to make a claim for damages in Common Law'. On all of the evidence that finding was mandated.
2The learned trial Judge erred in failing to take account of the absence of evidence as to when the plaintiff did have the actual knowledge referred to in paragraph (c) of the definition of date of discoverability in Section 2(1) of the Limitation Act 1974 and the absence of evidence of the date when the plaintiff provided instructions to institute proceedings. Had those matters been taken into account then the conclusion reached at [30] of His Honour's reasons for judgment could not have been reasonably reached.
3The learned trial Judge erred at [28] of his reasons for judgment in finding that an inference remained open that Mr Barclay and the plaintiff were at cross purposes when such an inference was not reasonably open on all the evidence."

The decision below

The learned trial judge set out the relevant evidence at [6]–[19] of his reasons for judgment as follows:
"6        The plaintiff was born on 8 May 1968, making him nearly 38 at the time of this accident. At the time, he was working for a Hobart firm of lawyers, Page Seager, as a conveyancing clerk. He had been employed by that firm since 1986. Of some relevance is that in that year he was involved in a motor vehicle accident on the east coast, (the 1986 accident). He was driving a vehicle and was struck head-on by a vehicle travelling in the other direction being driven on the wrong side of the road. His evidence was that he suffered facial injuries; he bit through his tongue, suffered some chipped teeth and a laceration under his chin. He also had a deep laceration to his right knee. He spoke to a solicitor at Page Seager who had approached him about the accident. The solicitor asked him if he was going to seek damages 'from the MAIB' (the Motor Accidents Insurance Board). In evidence, the plaintiff said, 'I didn't really understand what he was on about because I was only 17 years old'. The plaintiff said that the solicitor said he would look after it, and about 12 months later an offer of $4,000 was made, which he accepted. He signed a deed of release to conclude the settlement.
7         The plaintiff's evidence about the injuries he received in the 2006 accident and their consequences, and what he did about getting advice, was as follows. When struck, his left hand moved from the steering wheel and hit a dashboard vent. His head struck the back window of the utility and was then flung forward. He moved his vehicle by turning right into the street he had intended going into. When he pulled over he noticed a sore head, neck, shoulders and wrist. His back and knees were also hurting. He noticed significant damage to both vehicles.
8         He was at the scene for about half an hour. When he arrived home, he was feeling sore in all the same areas. He rested and took painkillers over the course of the weekend but went into work on the Monday morning. He said he found that very hard going, being generally very stiff and very sore. He consulted his general practitioner, Dr Alex Sutherland, on 12 April 2006, four days after the accident. It was recommended that he take analgesic and anti-inflammatory medication. On 12 April 2006 he completed and forwarded to the Motor Accidents Insurance Board an application for scheduled benefits. He was seeking payment of his medical expenses. In the following weeks he stayed at work but was having difficulty sitting. His low back was causing a lot of pain, as well as his shoulders and wrist. He was able to have some time off at Easter which was in mid-April. He continued to see Dr Sutherland, and in late April had an X-ray of his left wrist done, but this was inconclusive. He also started a course of physiotherapy. By 11 May 2006 he had had about two or three days off work because of the back, neck and wrist symptoms, and there is no evidence of any further days off before 21 May.
9         On 11 May 2006 he spoke to a solicitor at Page Seager, David Barclay. He did so at the insistence of another solicitor, David Shelley, who was the plaintiff's supervisor. The plaintiff's evidence was that Mr Shelley suggested he see Mr Barclay, with Mr Shelley saying:
'You want to make sure you get David [Barclay] to write a letter to the Board because there's various time limits … I'm not really up on what time limits are for what … but the sooner you notify them the better.'
10        I infer that the plaintiff saw Mr Barclay on the same day as he spoke to Mr Shelley. The plaintiff's evidence about the discussion of Mr Barclay is as follows. He said he poked his head in Mr Barclay's door and asked him if he had a moment. Mr Barclay said he did. The plaintiff had a quick chat to him, saying that he had been in an accident, outlining his physical difficulties, and telling Mr Barclay that he was a bit worried that the MAIB may not continue to keep paying for his medical expenses. He explained in evidence that he said this, not out of any great concern, but because he just wanted to ensure that payments were continued.
11        He said he told Mr Barclay that his injuries were not improving much at all, that he had seen the general practitioner and been to physiotherapy. He said he agreed with Mr Barclay that 'he was to write to the MAIB to seek their attitude as to whether they admitted liability'. When asked what his understanding of the process was, or the purpose of that letter, the plaintiff said, 'Well to me that meant that the MAIB would keep paying my medical expenses in relation to the accident.' He said Mr Barclay did not give him any 'legal advice'. The plaintiff said that there was no discussion about what he might be entitled to arising from the accident that he remembered, and that his purpose in seeing Mr Barclay was 'Just to basically have my symptoms on the record to ensure that I'm reimbursed for any out of pockets in regard to medical expenses.'
12        The plaintiff said that at the time he saw Mr Barclay he thought that his injuries would just get better, and that he did not think that things were going to amount to anything of a serious nature. He said that his only intention at the time he saw Mr Barclay was to receive reimbursement for medical expenses to the extent he was out of pocket. He said that Mr Barclay did not discuss costs with him or provide him with any form of costs agreement. The plaintiff said that before 21 May 2006 he did not speak to Mr Barclay or any other solicitor about a common law claim. He did not receive any advice about what damages he might receive, and had not discussed legal costs with anyone.
13        On 15 May 2006 Mr Barclay wrote on firm letterhead to the general manager of the MAIB. The letter is in the following terms:
'CRAIG O'NEILL
I act for the abovenamed.
In accordance with the enclosed authority would you please let me have copies of my client's notice of accident form and his application for benefits.
I advise that I have instructions to make a claim for damages in Common Law.
I understand the circumstances of the accident entail that my client was stationary when the driver of your insured's vehicle drove into the rear of my client's vehicle. He has suffered personal injuries.
Would you please therefore confirm the liability he has admitted [sic] and advise the name of your solicitors.'
14        In cross-examination, the plaintiff agreed that the $4,000 he had obtained in 1986 was worthwhile, that it was 'useful money'. He denied seeing Mr Barclay because he wanted to obtain 'useful money' in this case. He was asked to think about the matter very carefully, and it was suggested to him that he was in a bad way and went to see Mr Barclay because he wanted to make a claim. The plaintiff responded:
'No, I went up to Mr Barclay at the insistence of somebody else in the firm, because he – I – like my experience with sort of stuff is minimal, and another individual in the firm, in the office next to me, was concerned for me and he suggested I go up and talk to Mr Barclay. At that time I really didn't have much to do with Mr Barclay because he was upstairs and down the far end and I didn't sort of really know what he did because I was downstairs in commercial, it was like two different businesses. Any rate once I was told or suggested to that I go up and chat to him, my – my intention was to basically have my symptoms recorded and to – just to ensure that the Board pays any medical expenses, because I didn't want to be left out of pocket.'
15        The plaintiff again denied that it was his intention to make a claim similar to the one he had made in 1986. It was put to him that he knew it was worthwhile taking proceedings, but he said that because there had been no investigation as to his back, and as far as he was concerned he 'could have been right in a couple of months and it just wouldn't have been worthwhile, it certainly wouldn't have been worth the headache'. He agreed that he had 'come right' within a few months after the accident in 1986, and agreed that making the claim had been worthwhile. He agreed that he knew he had been injured when he saw Mr Barclay, but not to what extent. He also knew that he had been injured because of the conduct of the other driver whose details he knew. When it was put to him that he may not have known how serious his injuries were, but that he knew that they were sufficiently serious to make it worthwhile suing, the plaintiff said he did not consider suing, but that he was basically doing what Mr Shelley suggested he do, which was to speak to Mr Barclay.
16        As to Mr Barclay's letter to the Board, the plaintiff denied that Mr Barclay suggested writing to the Board and making a claim. He said that after he had briefly outlined the details, Mr Barclay acknowledged what he had been told, took a few notes and said that he would send a letter off to the Board seeking its attitude as to liability. The plaintiff said that he did not recall Mr Barclay saying anything about making a claim, and that Mr Barclay did not get instructions from him to make a claim for damages in common law. Neither party called Mr Barclay to give evidence.
17        The plaintiff called Mr Shelley. On the issue of the plaintiff's seeing Mr Barclay, Mr Shelley's evidence was as follows. The plaintiff saw him on the Monday after the accident. The plaintiff told him that he was not having any significant symptoms. He told the plaintiff that sometimes those sorts of injuries get worse with time, and he encouraged him to make sure he reported the accident to the MAIB, and that if he had continuing symptoms to make sure he saw a general practitioner about it. He said he did not tell the plaintiff to speak to anybody else at Page Seager. Mr Shelley said that he and the plaintiff talked about the plaintiff's symptoms over the next few weeks, and at one point he reviewed the plaintiff's employee records to see what time the plaintiff had had away from work. That was some time after 2 May 2006. Mr Shelley said that from the end of July 2006 until August 2007, the plaintiff was off work completely, and then returned to work on a part-time basis after that. Mr Shelley was not cross-examined.
18        Dr Sutherland's evidence is also relevant to this issue. He said that he had been the plaintiff's general practitioner since 1994. He confirmed that the plaintiff saw him on 12 April 2006, when he gave the history of being involved in a motor vehicle accident on the previous Saturday. Dr Sutherland noted complaints of the left wrist being painful, giving way when he was trying to pick up heavy books, and of pain in his neck, shoulders, upper back and lower back radiating to his buttocks, along with sore knees. On examination, there was a full range of movement in the wrist, with no swelling, although some reported tenderness.
19        Dr Sutherland also noted that the plaintiff was tender in several neck muscles, and had slightly reduced range of movement of his cervical and lumbar spine. Dr Sutherland assessed the plaintiff as suffering from multiple soft tissue injuries and suggested the use of simple analgesia to see how things went. He said that since that time there has been no evidence of bony injury in spite of a lot of imaging being performed. In the relevant period, Dr Sutherland's notes show a further wrist X-ray on 18 May 2006. Other evidence shows that the plaintiff saw Dr Sutherland five times between the accident and 21 May 2006, with all accounts being paid relatively promptly by the MAIB."

Grounds 1 and 3

As can be seen from the notice of appeal the appellant does not complain about the learned trial judge's identification of the relevant evidence, but rather his Honour's failure to draw a relevant inference, his drawing of an impermissible inference, and his failure to take account of the absence of relevant evidence.
Although the three grounds of the appellant's notice of appeal are symbiotic, grounds 1 and 3 can be considered together and ground 2 can be considered separately. It remains helpful however to set out the entirety of his Honour's reasoning in relation to the limitation defence from which all three grounds of appeal spring.
His Honour dealt with the resolution of the limitation issue at [22]–[30] as follows:
"22      For the defendant to succeed on this issue, she needs to establish that the date of discoverability occurred before 21 May 2006. As I have noted, there is no dispute that by 21 May 2006, the plaintiff knew or ought to have known of the facts set out in pars (a) and (b) of the definition. The contention is about par (c). The defendant does not challenge the plaintiff's evidence about the course of his injuries and treatment in the relevant time. The defendant's position rests heavily on Mr Barclay's letter of 15 May 2006. It is essentially from that letter that I am being asked to draw the inference that the par (c) criterion for the date of discoverability was met by or on 11 May, the day of the discussion with Mr Barclay. The time between the accident and 11 May 2006 is 4 weeks and 5 days, but I do not lose sight of the fact that there are 10 further days to consider.
23 Actual or constructive knowledge as referred to in par (c), in this case, would have to involve consideration of s 27 of the Civil Liability Act 2002. Section 27(1) provides that no damages are to be awarded for non-economic loss, where that loss is assessed to be not more than an amount known as 'A'. Subsection (2) provides that if the amount of non-economic loss is assessed to be more than an amount A, and not more than an amount, 'B', the damages to be awarded for non-economic loss are calculated as 1.25 times the amount assessed minus amount A. Amount A is set at $4,000 for the financial year ending 30 June 2004, with an annual recalculation done on 1 July each subsequent financial year using a formula involving the CPI figure for Hobart for the March quarter immediately preceding the financial year, and the CPI figure for Hobart for the March quarter of 2003. Amount B is five times amount A.
24        As a preface to all submissions, the defendant submitted that I could not rely on the plaintiff's evidence unless it was reliably corroborated. It is submitted that in evidence he was argumentative and evasive, and untruthful on some key aspects. As to this issue, the defendant submits that the plaintiff's evidence about the discussion with Mr Barclay is not corroborated, and is inconsistent with Mr Shelley's evidence. Further, the defendant submits that I should draw the inference as 'the only inference that can be drawn', that Mr Barclay's evidence would not have assisted the plaintiff: Jones v Dunkel (1959) 101 CLR 298.
25        The plaintiff relies on his evidence about his state of knowledge and of the nature of the conversation with Mr Barclay. The plaintiff says that knowledge under par (c) has not been made out, even accepting that he instructed Mr Barclay to write in the terms of the letter. The plaintiff did not make any submissions on the Jones v Dunkel issue. Accordingly, I do not need to consider whether Mr Barclay could have been called by the defendant in the light of the plaintiff having given evidence about the conversation; that is whether, assuming the communications attracted client legal privilege, the plaintiff, by giving evidence, impliedly consented to disclosure.
26        I will first deal with the plaintiff's actual knowledge as to par (c). On the plaintiff's evidence, he did not turn his mind to making a claim for damages at the time he spoke to Mr Barclay; his only concern was to have his medical expenses paid. For reasons which I will elaborate on in relation to damages, there is very good reason to exercise caution before accepting the plaintiff's evidence. Of course, I acknowledge that there are inconsistencies between his evidence and that of Mr Shelley. However, I consider it less likely that Mr Shelley would have simply told the plaintiff to report the accident to the MAIB and to make sure he saw a general practitioner, than that he should speak to one of the firm's litigation solicitors about time limits. By that time, the plaintiff had seen Dr Sutherland, had an X-ray of his wrist, and had lodged his application to the MAIB for scheduled benefits. On neither version, was any mention made of damages or instituting proceedings.
27        In the circumstances, I accept that an inference should be drawn that Mr Barclay's evidence would not help the plaintiff's case. This does not mean that I should infer that it would in fact have been damaging: HML v The Queen [2008] HCA 16; 235 CLR 334 per Heydon J at 438 [303]. Because it is reasonable to expect Mr Barclay would be called, and no explanation has been given for not doing so, and because Mr Barclay could have shed light on what was said, I am entitled to more readily draw an inference unfavourable to the plaintiff. I may draw such an inference, but I am not compelled to do so.
28        Accepting that it can be inferred from the letter that the plaintiff agreed to Mr Barclay writing to the MAIB, an inference remains open that the two were at cross-purposes. It may be that Mr Barclay explained the right to claim common law damages as distinct from receiving scheduled benefits, and said that he would seek the Board's attitude to liability. From my overall impression of the plaintiff, the subtleties of this distinction might well have been lost on him. It is quite possible that he left Mr Barclay having agreed that Mr Barclay would write to the Board, but thinking it was about confirming his entitlement to medical expenses. I am not affirmatively satisfied that the fact, and contents, of Mr Barclay's letter sufficiently establish actual knowledge of the plaintiff of the fact referred to in par (c) of the definition. Objectively, Mr Barclay's letter at that time could be seen as premature in a sense. Although the plaintiff was experiencing ongoing symptoms, he had only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss. There is no evidence that the plaintiff was aware of s 27 of the Civil Liability Act, or its application to his situation. Looking objectively at the letter, the 'claim' could only have been a conditional one at that time.
29 That leads to the issue of constructive knowledge. I have the unchallenged evidence of the plaintiff about the course of his injuries and treatment. He was not hospitalised, and did not receive any specialist treatment or advice. It was not suggested that he ought to have been aware of s 27 of the Civil Liability Act, or more particularly perhaps, its possible effect at that time. I do not think the 1986 claim is of any assistance to the defendant. It involved more overt, less insidious injuries, and occurred before the Civil Liability Act existed. On that basis, I am not satisfied that the plaintiff ought to have known at a time before 21 May 2006 that his injuries were sufficiently serious to justify the bringing of proceedings.
30        I am not satisfied that the date of discoverability was before 21 May 2006. It follows that the limitation defence fails, and that the defendant is liable to the plaintiff for damages."
The learned trial judge's conclusion that he was not affirmatively satisfied that the fact and contents of Mr Barclay's letter sufficiently established actual knowledge of the respondent of the fact referred to in par (c) of the definition is, with respect, difficult to justify on the evidence that was before his Honour.
It seems that his Honour was prepared to accept that it could be inferred from the letter that the respondent agreed to Mr Barclay writing to the Motor Accidents Insurance Board (the MAIB), but notwithstanding that fact, his Honour was of the view that an inference remained open that the respondent and Mr Barclay were at "cross purposes". By that expression I take his Honour to have meant that the respondent believed that he was instructing Mr Barclay to write to the MAIB to ensure that his medical expenses continued to be paid, whereas Mr Barclay understood that he was being instructed to foreshadow a claim for damages and to seek an admission of liability. His Honour did not arrive at that view by way of a simple acceptance of the respondent's own evidence. Had he done so he would not have needed to resort to inference or to his own "overall impression" of the respondent's ability to appreciate "subtleties". If his Honour had arrived at the view that he did simply on the basis of acceptance of the respondent's own evidence he needed only to, and would, have said so. Acceptance of the respondent's evidence per se would have been the most direct route to the resolution of the limitation defence in the respondent's favour.
His Honour appears to have been reinforced in his conclusion that the respondent lacked the requisite actual knowledge on or about 15 May 2006 by virtue of the fact that, regarded objectively, Mr Barclay's letter could be said to have been premature, as no bony injury had been diagnosed as being suffered by the respondent, and Mr Barclay would not have been in a position to have been able to give any advice as to s 27 of the Civil Liability Act 2002. I note however that what is required by s (2)(1) of the Act is actual or constructive knowledge of whether the respondent's injury "was sufficiently significant to warrant bringing proceedings", and the words "to warrant" appear to me to be of particular relevance.
If a person instructs his or her solicitor to write to the MAIB in terms such as those contained in Mr Barclay's letter, that, in my view, would evidence knowledge that the person's injury was thought to warrant, that is to say, to be worth bringing proceedings for damages. It evidences a decision to "give it a go", as it were. It might well be that in some cases such a decision would prove to have been made prematurely, but it is nonetheless a decision, and a decision which evidences the actual knowledge required by the Act, namely that the person's injury was sufficiently significant to warrant bringing proceedings. The claim might succeed or it might fail, but it would have been thought sufficiently significant enough to warrant proceedings. In the present case, in my view, it was so thought in circumstances where the respondent was experiencing ongoing disabling pain and was continuing to regularly consult his general practitioner as to symptoms that had not settled with non-prescription analgesia.
It appears to me therefore, with respect, that his Honour could draw no comfort from the fact that Mr Barclay's letter could be seen as at 15 May 2006 to have been premature "in a sense" as his Honour said. Given its relatively low threshold, in my view, s 27 of the Civil Liability Act could not have assumed any great significance in the case of a soft tissue injury to the cervical spine that was continuing to cause disabling pain and partial incapacity for work after 37 days.
All of that is really by way of an aside, however, as the more fundamental difficulty with his Honour's reasoning is, as I apprehend it, to be found in his preparedness to draw an inference that Mr Barclay and the respondent "were at cross purposes".
Before I proceed to consider that matter it is appropriate to set out what the High Court has recently said about the role of an appellate court in reviewing inferences drawn by a trial judge.
In Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, French CJ, Bell, Keane, Nettle and Gordon JJ said at [43]:
"The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them." (Footnotes omitted.)
In Louth v Diprose (1992) 175 CLR 621 at 639 to 640, Dawson, Gaudron and McHugh JJ had observed in their joint reasons that the trial judge's finding turned not so much on an assessment of credibility as on the assessment of character. Their Honours said that it is precisely because different people may come to different conclusions as to character, credit and disputed matters of fact that findings as to those matters are entrusted to the trial judge in accordance with rules that guarantee a considerable measure of finality.
Making due allowances for those observations of the High Court, and respecting the assessment that the learned trial judge had made of the respondent's character and credibility, it nonetheless appears, to my mind, that the inference his Honour felt was open, namely that Mr Barclay and the respondent were at cross purposes, was contrary to and outweighed by the compelling competing inference to be drawn from the respondent's failure to call Mr Barclay on the trial before his Honour. In my view his Honour erred in considering the availability of the "cross purposes" inference on the question of whether the appellant had affirmatively satisfied him that the respondent had the actual knowledge referred to in par (c) of the definition in the Act, and/or erred in failing to find that any evidence given by Mr Barclay would be damaging to the respondent's case.
I commence by noting that, in my view, it was open to the appellant to call Mr Barclay as the respondent, in giving the evidence that he gave as to his communication with Mr Barclay on 11 May 2006, had waived legal professional privilege in respect of that communication: see Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of Macedonian Orthodox Church of Australia and New Zealand [2006] NSWCA 160, per Hodgson JA at [59], and Div 1 of Pt 10 of the Evidence Act 2002. In my view the learned trial judge should, on the basis of Jones v Dunkel (1959) 101 CLR 298, have been prepared to draw an inference unfavourable to the respondent and should, notwithstanding the observations of Heydon J in HML v The Queen [2008] HCA 16, 235 CLR 334 at [303], have been prepared to infer that Mr Barclay's evidence would not only not have helped the respondent's case, but would in fact have been damaging to it.
I am of this view because the only way in which the evidence of Mr Barclay could "not have assisted" the respondent's case would be by Mr Barclay confirming that he was unequivocally instructed to write the letter of 15 May 2006 in the terms in which he did after discussion with the respondent. No other conceivable communication between Mr Barclay and the respondent on 11 May 2006, if recounted by Mr Barclay, would have been unhelpful to the respondent's case. For example, it would not have been unhelpful if Mr Barclay had said that he was not specifically instructed to write in the terms in which he did, but took it upon himself to do so. Nor would it have been unhelpful if Mr Barclay had said that he had not actually discussed the difference between claiming damages and merely writing a letter to ensure that the respondent's medical expenses would continue to be paid by the MAIB. Nor would it have been unhelpful if Mr Barclay had acknowledged that the nature of his conversation with the respondent was such that Mr Barclay believed that he had been instructed to write to the MAIB in the terms in which he did but that he and the respondent could have been at cross purposes because Mr Barclay of course could not say what was in the respondent's mind. In each and every one of those scenarios Mr Barclay's evidence would have been helpful to the respondent's case because it would have confirmed or have tended to support a lack of either actual or constructive knowledge contemplated by s 2(1)(c) of the Act as at 15 May 2006.
Moreover, as will be seen, given the respondent's failure to give evidence about any meeting with Mr Barclay other than that of 15 May 2006, it is far more probable than not that Mr Barclay's evidence would have confirmed that there was no meeting between him and the respondent other than the meeting of 15 May 2006, that there was no other discussion in which it was decided that the respondent's injury was sufficiently significant to warrant bringing proceedings, and that there was no other decision or instruction to institute proceedings, absent an admission of liability by the MAIB, than that actually made or given, expressly or impliedly, at the meeting of 15 May 2006.
In short, I am of the view that the learned trial judge erred in considering as open, an inference based not on facts but on speculation, whilst at the same time ignoring the compelling competing inference that the only evidence that Mr Barclay could have given, if he had been called, that would have been unhelpful would have been evidence that would have been dispositive of the issue in favour of the appellant.
Further, if it be the case that in saying at [28] "[a]ccepting that it can be inferred from the letter that the plaintiff agreed to Mr Barclay writing to the MAIB …", his Honour was not prepared to find that the respondent instructed Mr Barclay as asserted in ground 1 of the notice of appeal, then his Honour, in my view, would have been in error. That is because, particularly with, but even without, the drawing of a Jones v Dunkel inference, there was no basis for finding that Mr Barclay was not so instructed other than by relying on the respondent's own evidence of his understanding of the process of Mr Barclay asking the MAIB whether it admitted liability. The learned trial judge had said however in an entirely unrestricted way at [94] of his reasons, having foreshadowed such a finding at [26], "caution should be exercised in accepting [the respondent's evidence] … where otherwise unsupported". And that observation was made following a submission made by the appellant that his Honour "could not rely on the respondent's evidence unless it was reliably corroborated".
It follows that, in my view, grounds 1 and 3 of the notice of appeal should succeed. I will nonetheless consider ground 2.

Ground 2

As I understand it ground 2 of the notice of appeal asserts in effect that the learned trial judge erred in failing to take account of the absence of evidence as to when the respondent did have actual knowledge that his injury was sufficiently significant to warrant bringing proceedings, and the absence of evidence as to the date when the respondent did provide instructions to institute proceedings.
Bearing in mind that the appellant bore the onus of proof on the limitation defence, the absence of that evidence of itself and on its own could not, to my mind, have established that the date of discoverability was before 21 May 2006. However, the failure on the part of the respondent to have given evidence as to the actual date he became aware that his injury was sufficiently significant to warrant bringing proceedings, and as to the actual date upon which he instructed Mr Barclay to institute those proceedings, adds to the strength of the inference that the respondent did instruct Mr Barclay to write the letter of 15 May 2006 in the terms in which he did, and also further undermines the availability of any inference that the respondent and Mr Barclay were at cross purposes in their discussion of 11 May 2006.

As was submitted to the learned trial judge by the appellant's counsel, Mr Read SC, in his closing address, the absence of evidence as to when the respondent actually formed the view that proceedings were worth taking, and when he actually gave instructions to institute proceedings, leaves 11 May 2006 as the only date on which those two things could be found to have occurred. As a matter of logic, the absence of evidence of anything occurring between 11 May 2006 and the date of institution of the proceedings begs the question as to how and when Mr Barclay became possessed of instructions to write to the MAIB and to institute proceedings as appropriate, if not on 11 May 2006.
In my view ground 2 of the notice of appeal should succeed.

Disposition

For the reasons I have given I would allow the appeal.

File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

BRETT J
20 January 2017

On 20 May 2009, the respondent issued a writ whereby he commenced proceedings against the appellant for damages for personal injuries caused by negligence. The allegation was that the respondent was injured when the vehicle he was driving was struck from behind by a vehicle being driven by the appellant. On 30 March 2016, Porter J entered judgment in that action in favour of the respondent in the sum of $583,923.60 (O'Neill v Rhodes [2016] TASSC 17).
The appellant admitted in her pleadings that her driving was negligent and that, as a result, the respondent had suffered injury and damage. There was no plea of contributory negligence. The only issue raised by the appellant in respect of liability was that the action was statute barred, in that it was commenced at the expiration of the limitation period provided for in s 5A(3)(a) of the Limitation Act 1974, which is a period of three years commencing on the date of discoverability. The appellant's assertion was that the date of discoverability was before 21 May 2006. The trial judge concluded that he was not satisfied, on the evidence before him, that the date of discoverability was before that date, and, accordingly, the defence pursuant to the Limitation Act failed. It followed, having regard to the admissions made on the pleadings, that the appellant was liable to the respondent in damages.
This appeal challenges his Honour's conclusion in respect of the date of discoverability.
For the purposes of this action, the date of discoverability is defined by s 2(1) of the Limitation Act as the date:
"… when the plaintiff knew or ought to have known that personal injury or death —
(a)had occurred; and
(b)was attributable to the conduct of the defendant; and
(c)in the case of personal injury, was sufficiently significant to warrant bringing proceedings."
It was accepted by both parties, both at trial and on appeal, that the respondent knew that personal injury had occurred and was attributable to the conduct of the appellant on the date that he suffered injury, 8 April 2006. The matter in issue was whether he knew or ought to have known that the personal injury was sufficiently significant to warrant bringing proceedings. Again, it is accepted by both parties that the burden of proving this fact falls on the appellant. Hence, the learned trial judge's conclusion that he was not "affirmatively satisfied" that the respondent knew or ought to have known that the injury was sufficiently significant to warrant bringing proceedings before 21 May 2006, was sufficient to dispose of that issue in favour of the respondent.
The trial judge's summary of the evidence relevant to this question, and his reasoning for this conclusion, are set out in full in the reasons for judgment of Estcourt J, which I have had the benefit of reading. I will not repeat them in these reasons.

Grounds 1 and 3

"1 The learned trial Judge erred at [28] of his reasons for judgment in failing to find that the plaintiff instructed Mr Barclay to write to the MAIB advising that he had 'instructions to make a claim for damages in Common Law'. On all of the evidence that finding was mandated.
…
3 The learned trial Judge erred at [28] of his reasons for judgment in finding that an inference remained open that Mr Barclay and the plaintiff were at cross purposes when such an inference was not reasonably open on all the evidence."

I will deal with these grounds together, because they both seem to be different aspects of the same complaint. The grounds focus on the factual conclusions stated by his Honour at [28] of his reasons for judgment, and challenge the manner in which his Honour dealt with the factual issue which surrounded the letter written by David Barclay to the MAIB dated 15 May 2006. This letter, of course, was fundamental to the appellant's case that the respondent had actual knowledge of the matter referred to in par (c) as at the date of that letter. Although the appellant's challenge relates specifically to the inference that the trial judge drew and an alternative inference which the appellant claims he ought to have drawn, on the basis of the letter and the evidence surrounding the letter, it is implicit in the appellant's argument that the real complaint is that his Honour did not utilise this evidence to satisfy himself that the respondent had, as at the date of that letter, the requisite knowledge sufficient to satisfy the definition of the date of discoverability.
The appellant's case was that the possession of actual knowledge by the respondent prior to 21 May 2006 was a fact which could be inferred from all of the evidence. There were, in reality, two limbs to the appellant's argument in relation to this matter. Firstly, the appellant argued that objectively by 21 May 2006, the respondent had sufficient information available to him to establish actual constructive knowledge that the injury was sufficiently significant to warrant bringing proceedings. He was aware of injury immediately after the accident to a number of parts of his body and his symptoms were continuing and worsening in the period before 21 May 2006. He had been to a general practitioner, was having difficulty working, and had two or three days off work because his symptoms were not settling down. This, says the appellant, is all that he needed to know about his injuries to know that they were significant enough to warrant bringing proceedings. "Proceedings" are not defined and could, according to the appellant's argument, include an action brought in the Magistrates Court for a modest sum of damages. The appellant would also ask, rhetorically, if the date of discoverability was not at the point that the respondent realised that he had been injured in the accident, which was on the date of the accident, then when was it? It is asserted that there was an absence of evidence from the respondent as to when he did actually gain the necessary knowledge, if it had not occurred prior to 21 May 2006, and an inference is therefore available that the knowledge had been gained prior to that date.
Secondly, the appellant relied heavily on the letter to the MAIB from Mr Barclay. It was argued that the Court could infer from the letter that the respondent had given instructions to his solicitors in accordance with the contents of the letter, that is, to make a claim for damages for personal injury. It is asserted that this supported the contention that the appellant had acquired the necessary knowledge by that time.
Apart from the tender of the letter itself, the appellant did not present any other evidence dealing with the letter or its genesis. The respondent, however, gave evidence in relation to the letter. His evidence was that the letter was written after the respondent consulted Mr Barclay, a solicitor working in the legal firm that employed the respondent, in relation to his injuries. According to the respondent, it was a very brief conversation. He denied that at the time he saw Mr Barclay, he had any intention, or had even considered, the possibility of making the common law claim, that he had discussed with Mr Barclay or been advised by him about the possibility of a common law claim, or that he had given instructions to Mr Barclay to make such a claim. He said that he had gone to see Mr Barclay, at the suggestion of another solicitor in the firm, Mr Shelley, because he was concerned about whether the MAIB would continue to pay his medical expenses, by way of scheduled benefits. In his evidence, he said that when he went to see Mr Barclay, he expressed this specific concern only. His evidence included the following passage:
"Did you make an appointment to see Mr Barclay?……No.
How did you come to see him?……I just went upstairs and poked my head in his office door and asked if he had a moment.
What did he say?……Yes.
So what happened?……I had a very quick chat to him, said, 'I've been in an accident.'   I said, 'These are problems I've got,'   I said, 'I'm just a bit worried.'   I said, 'The MAIB may not continue to keep paying for the medical expenses.'
Okay.   Where did this discussion take place?……In David's office at Page Seager, which – his office was the floor above mine.
How long did you meet with him for?……Approximately ten to fifteen minutes, if was very brief.
What did you tell him about your injuries?……I just described those injuries that I had being the lower back, knees, left wrist, shoulders and neck.
What did you tell him about the progress of those injuries?……Just said I've felt pretty much the same, they were stagnant.
What did you tell him about the treatment you'd undergone?……Said I'd been to the physio and to my GP.
Did you tell him anything else?.....No.
Did you agree with him on any course of action that would be taken by him?.....Yes.
What course of action did you agree to?.....He was to write to the MAIB to seek their attitude as to whether they admitted liability.
What was your understanding of that process, what the purpose of that was?.....My – well to me that meant that the MAIB would keep paying my medical expenses in relation to the accident.
Did Mr Barclay give you any legal advice on the 11^th May?.....No.
Was there any discussion about what you might be entitled to arising from the accident?.....Not that I remember, no.
What was your purpose in seeing Mr Barclay?.....Just to basically have my symptoms on the record and to ensure that I'm reimbursed for any out of pockets in regards to medical expenses.
HIS HONOUR:   What was causing you concern about whether the Board would continue to pay your medical expenses, had anything happened?
WITNESS:   Yes.   David Shelley, when he suggested I go and see Mr Barclay he just said, 'Oh you want to make sure you get David to write a letter to the Board because there's various time limits', he said, 'I'm not really up on what time limits are for what', he said, 'but the sooner you notify them the better'.
HIS HONOUR:   Just earlier I thought you said you had some concern about whether the Board would continue to pay your medical payments and I was just wondering what had caused you that concern, if anything.
WITNESS:   Just – no, no great concern, I just wanted to ensure that they did, because their insurance company to cover.
HIS HONOUR:   Yes.
MR McTAGGART SC (Resuming):   At the time you saw Mr Barclay on the 11^th May did you – what was your understanding about the nature of your injuries, that is whether you'd get better, whether they'd stay the same, whether they'd get worse?.....Well I actually thought they'd just get better, I didn't think it was going to be anything serious.
At the time you went to see Mr Barclay what was your intention regarding claiming anything arising from the accident?.....My only intention was to receive reimbursement for out of pockets for my medical expenses."
The respondent's further evidence was that there was no discussion about a common law claim, or damages, and he did not instruct Mr Barclay that he intended to make a claim for damages.
The respondent adduced evidence from Mr Shelley. Mr Shelley denied that he had told the respondent to speak to anybody else at the firm. However, in all other respects, Mr Shelley's evidence was confirmatory of the evidence of the respondent. Mr Shelley said that he had had a conversation with the respondent about his injuries and, in very general terms, had advised him to make sure that he reported ongoing symptoms to the MAIB. This is consistent with the respondent's claim that his concern in seeing Mr Barclay was to record his symptoms and have the MAIB confirm reimbursement of ongoing medical expenses. There is no suggestion in Mr Shelley's evidence that there was any discussion about the potential of a common law claim for damages. Mr Shelley was not cross-examined.
This was the extent of the evidence dealing with the letter and the genesis of the statement in the letter that Mr Barclay had instructions to make a claim for common law damages. Neither party called the only other witness who could explain why the letter contained that statement, Mr Barclay himself. The trial judge dealt with the failure to call Mr Barclay as follows:
"In the circumstances, I accept that an inference should be drawn that Mr Barclay's evidence would not help the plaintiff's case. This does not mean that I should infer that it would in fact have been damaging: HML v The Queen [2008] HCA 16; 235 CLR 334 per Heydon J at 438 [303]. Because it is reasonable to expect Mr Barclay would be called, and no explanation has been given for not doing so, and because Mr Barclay could have shed light on what was said, I am entitled to more readily draw an inference unfavourable to the plaintiff. I may draw such an inference, but I am not compelled to do so."
This statement, in my view, correctly states and applies the law as to the use that could be made in this case of the respondent's failure to call Mr Barclay. There is no doubt that there was a legitimate expectation that fell upon the respondent to call Mr Barclay. Mr Barclay was his solicitor, and the person directly placed to explain the statement in the letter. It would not be expected that the appellant would have the same expectation, notwithstanding that the respondent, by his evidence, had effectively waived legal professional privilege. The failure of the appellant to call Mr Barclay does not give rise to an inference of the nature described in Jones v Dunkel (1959) 101 CLR 298, because it would not be expected that the appellant would have had the ability to determine what evidence Mr Barclay could give, given that he was the respondent's solicitor and privilege would have been applicable until waived.
However, the inference that was available to be drawn against the respondent as a result of his failure to call Mr Barclay, was the one stated by the learned trial judge i.e. that Mr Barclay's evidence would not assist the respondent's case. The learned trial judge was not entitled to use the failure to call Mr Barclay as a basis for inferring facts which were unfavourable to the respondent's case. See Brandi v Mingot (1976) 12 ALR 551 at 559 and Kuhl v Zurich Financial Services [2011] HCA 11, 243 CLR 361 at [384]. In HML v The Queen [2008] HCA 16, 235 CLR 334, Heydon J said at [303]:
"In civil cases the unexplained failure of a party to give evidence, call witnesses or tender material is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: the only consequence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn Azzopardi v The Queen (2001) 205 CLR 50; Dyers v The Queen (2002) 210 CLR 285."
These cases also support the related proposition that the failure to call evidence cannot be used to fill gaps in evidence. It can, however, enable a court to more confidently draw an inference from evidence called by that party's opponent which is unfavourable to the party who has failed to call the witness: Jones v Dunkel (above) per Kitto J at 308.
In this case, the respondent did give direct evidence concerning the question of his conversation with, and instructions to, Mr Barclay. His Honour did express his view that there was "good reason to exercise caution before accepting the plaintiff's evidence". He noted the conflict between Mr Shelley's evidence and the respondent's evidence, which I have mentioned previously, but noted also that, on either version, there was no mention made of damages or the institution of common law proceedings. A review of the transcript of the respondent's examination-in-chief and cross-examination, in respect of this issue, confirms that he consistently maintained his evidence throughout.
Having regard to the state of the evidence described above, his Honour's conclusion at [28] that an inference remained open that Mr Barclay and the respondent were at cross-purposes in respect of the purpose of the letter was open, and indeed, justified. In fact, unless the trial judge positively rejected the credibility of the respondent's evidence on this point, it is difficult to see that any other conclusion was reasonably open to him. I do not regard his Honour's statement that there was good reason to exercise caution before accepting the respondent's evidence as tantamount to a rejection of the credibility of his evidence. His Honour's conclusion that Mr Barclay may have been talking about common law damages, but that this was not understood or appreciated by the respondent, was, according to his Honour, drawn from his "overall impression" of the respondent. This was a matter in respect of which the trial judge, having seen and heard the respondent give evidence over an extended period of time, was in an ideal position to assess. This is a classic example of the advantage which the trial judge has in assessing evidence, an advantage which must be given appropriate weight by an appellate court, whilst not shrinking from its obligation to conduct "a real review of the trial": Fox v Percy [2003] HCA 22, 214 CLR 118 at [25]. In Fox, the majority explained the advantage of the trial judge and its proper role in the process of appellate review as follows:
22 The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23 The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." [Footnotes omitted.]
Further, an inference that the two were at cross-purposes is consistent with an inference that Mr Barclay's evidence would not assist the respondent's case. Irrespective of the evidence which Mr Barclay might give, he would not necessarily be able to give evidence which would inform the respondent's perception of their discussion. His Honour's conclusions are consistent with his correct approach to the failure of the respondent to call Mr Barclay, as described in Jones v Dunkell.

In any event, when regard is had to the full extent of his Honour's reasoning contained in [28], it can be seen that his Honour's conclusions in respect of the letter amounted, in essence, to an explanation of the apparent inconsistency between the respondent's evidence and the contents of the letter. They are not matters which appear to be crucial to his Honour's determination of the central issue as to whether it had been established that the respondent, at that time, had actual knowledge of the matters referred to in par (c) of the definition. His Honour's crucial findings in relation to this question are contained in the second part of [28] which I set out below:
"I am not affirmatively satisfied that the fact, and contents, of Mr Barclay's letter sufficiently establish actual knowledge of the plaintiff of the fact referred to in par (c) of the definition. Objectively, Mr Barclay's letter at that time could be seen as premature in a sense. Although the plaintiff was experiencing ongoing symptoms, he had only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss. There is no evidence that the plaintiff was aware of s 27 of the Civil Liability Act, or its application to his situation. Looking objectively at the letter, the 'claim' could only have been a conditional one at that time."
Reading his Honour's comments in the context of the whole of his judgment, it would seem clear that he has concluded that irrespective of Mr Barclay's indication that he had instructions to sue for common law damages, and even if it could be inferred from the contents of the letter and other evidence that that was reflective of the respondent's intention at that time, his Honour was not affirmatively satisfied on all of the evidence that the respondent had actual knowledge that his injuries were sufficiently significant to warrant bringing proceedings. His Honour's reference to the claim only being a conditional one would suggest that the fact that the letter indicated that a claim would be brought, did not of itself, establish that the respondent knew that his injuries were of a nature and level of seriousness which would warrant the bringing of proceedings.
These conclusions are, in my view, entirely consistent with the interpretation of par (c) as explained by his Honour in his judgment as a member of the Full Court in Allianz Australia Insurance Limited v Mercer [2016] TASFC 2. In reasons which were, on this point, the subject of agreement by the other members of the court, his Honour noted that the focus of the enquiry in respect of the date of discoverability is on the knowledge that the respondent has or ought to have of his injury, and, in particular, whether the injury is sufficiently significant to warrant bringing proceedings. The requisite knowledge does not necessarily include "all the various favourable and adverse contingencies which will affect the ultimate outcome" (see Mercer at [85]), but it is clear that the injured person must have sufficient knowledge of the extent and nature of the injury suffered so as to be in a position to assess that the injury is one which warrants bringing proceedings. The focus on the injured person's knowledge of the nature and extent of the injury is, in my view, entirely consistent with the purpose of the legislation, which is that the limitation period will not commence to run until the injured person has a sufficient understanding of his injury to know that it is one which is significant enough to warrant the commencement of proceedings.
It necessarily follows from the wording of the legislation, and his Honour's explanation of its meaning in Mercer, that, for the purpose of determining the date of discoverability, there are two aspects to the requisite consideration in relation to the existence of actual knowledge. Firstly, there is a subjective consideration of the extent of the respondent's knowledge of the injury. Hence, if the aspects of the injury which make it significant enough to warrant the commencement of proceedings are latent or still developing, then unless it can be established that the injured person knows or ought to know of those aspects, time will not commence to run. The second aspect of the consideration is to assess on an objective basis, whether the injury, as it is known or ought to be known by the injured person, is sufficiently significant to warrant bringing proceedings.
It is appropriate to consider what is meant by an injury which would be significant enough to warrant bringing proceedings. According to the Macquarie Dictionary a synonym for "warranting" is "justification". Having regard to the purpose of the legislation, it seems to me that the ordinary meaning of the provision is that the injury must be significant enough to justify or make appropriate the bringing of proceedings. Provided the focus of the enquiry is on the injury and its significance to the question of the commencement of proceedings, and not other considerations relevant to the viability of the proceedings, it seems to me that such a definition is consistent with the reasoning of the Full Court in Mercer.
It follows from this that the objective consideration must necessarily take into account a statutory threshold, such as that to be found in s 27 of the Civil Liability Act 2002, although its relevance in any particular case will depend upon the circumstances of that case. This much was acknowledged in Mercer [84]. The effect of that provision is to establish, as a matter of law, a disentitlement to damages for non-economic loss, if assessment of those damages will not exceed Amount A. The provision removes the common law right to recover damages in those circumstances. Accordingly, if an injury, as it is known (or ought to be known) by the injured person, is of a nature and level of seriousness which would not permit an assessment of damages in excess of that threshold, and would not entitle that person to an award of damages on any other basis, then, as a matter of simple logic, such an injury is not significant enough to warrant bringing proceedings. In practical effect, the common law cause of action has been removed, and the injured person is in the same practical position as if he were unable to establish any loss at all. This view of the significance of the threshold in s 27 is consistent with his Honour's analysis in Mercer. In particular, at [84]:
"It is the injury which must be known to be sufficiently significant to warrant bringing proceedings, although it is plain from Baker-Morrison and Frizelle v Bauer that in certain circumstances the knowledge referred to in par (c) will involve legal and medical information and evaluation. Whether or not a degree of impairment is required, as is the case under s 138AB, is a good example. Relevant knowledge would include knowledge that the threshold exists and whether the injury has given rise, or might well give rise, to the particular degree."
Consideration of the threshold in this way has nothing to do with a decision as to whether proceedings should actually be taken, or even their likely prospect of success. It is simply an acknowledgement that if an injury will not sound in damages sufficient to permit their recovery at law, then that injury is not significant enough to warrant the bringing of proceedings. In this case, the respondent would assert, and his Honour implicitly found in [28], that the injury, as the respondent then understood it, was not significant enough to warrant more than a modest award for damages for non-economic loss for soft tissue injury, with no prospect of an award on any other basis. As the respondent said in evidence, he did not think his injuries would get worse, he thought they would get better, and he had no reason to believe that they were more serious than they appeared to be at that time. As I will discuss in a moment, he did not acquire knowledge of more serious underlying aspects of his injury until some time later than 21 May 2006. It is implicit in his Honour's reasons that it would have been impossible at that time to determine that damages would be recoverable at common law, given the statutory prohibition contained in s 27 of the Civil Liability Act. The purpose of that provision must be to discourage and thereby eradicate claims for damages in the circumstances that were known to the respondent on 21 May 2006. In those circumstances, it would be entirely consistent with the intended operation of s 5A of the Limitation Act that the time limit would not commence to operate, unless and until he knew of the aspects of the injury which made it significant enough to warrant bringing proceedings.
These considerations are reflected in his Honour's brief summary contained in [28] of his reasons for concluding that he was not affirmatively satisfied that actual knowledge of the requisite matter had been established. His Honour notes that the respondent had "only had a few days off work. No significant bony injury had been diagnosed, and it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award of damages for non-economic loss". His Honour's conclusions about these matters were clearly open on the evidence that was accepted by him. In reviewing those conclusions, it is appropriate to consider his Honour's reasoning in the context of his entire judgment, including his analysis of the respondent's injury and the course of its development, which occurs in considerable detail later in his judgment, for the purposes of assessment of damages. It is reasonable to consider his reference in [28] to his state of satisfaction concerning the date of discoverability, as being informed by his overall view of the evidence, and not just the limited references to those considerations contained in [28].
I note, in particular, the following aspects of the evidence, as referred to by the trial judge in his judgment:
(a)The letter in question was sent approximately five weeks after the accident. The respondent had, by that time, experienced ongoing pain in his head, neck, shoulders, wrist, back and knees. He continued to work and, although at the time the letter was sent, had had two to three days off work, there was no other reason to suppose that he would not continue working. He had seen a general practitioner, Dr Sutherland. His Honour specifically noted that Dr Sutherland's evidence was relevant to the issue of the date of discoverability. He summarised Dr Sutherland's evidence in the following passages:
"[18] Dr Sutherland's evidence is also relevant to this issue. He said that he had been the plaintiff's general practitioner since 1994. He confirmed that the plaintiff saw him on 12 April 2006, when he gave the history of being involved in a motor vehicle accident on the previous Saturday. Dr Sutherland noted complaints of the left wrist being painful, giving way when he was trying to pick up heavy books, and of pain in his neck, shoulders, upper back and lower back radiating to his buttocks, along with sore knees. On examination, there was a full range of movement in the wrist, with no swelling, although some reported tenderness.
[19] Dr Sutherland also noted that the plaintiff was tender in several neck muscles, and had slightly reduced range of movement of his cervical and lumbar spine. Dr Sutherland assessed the plaintiff as suffering from multiple soft tissue injuries and suggested the use of simple analgesia to see how things went. He said that since that time there has been no evidence of bony injury in spite of a lot of imaging being performed. In the relevant period, Dr Sutherland's notes show a further wrist X-ray on 18 May 2006. Other evidence shows that the plaintiff saw Dr Sutherland five times between the accident and 21 May 2006, with all accounts being paid relatively promptly by the MAIB."
(b)At [103] of the judgment, his Honour makes a finding that the respondent had in the accident, "… suffered injury to his low back; specifically the motion segment at L5/S1 level. That involves both the disc and the facet joint. I think it is more likely than not that he continues to suffer pain and discomfort in his back". This finding was based, in part, on the evidence of medical experts and their interpretation of CT and MRI scans which took place in mid to late 2006. The scans "… showed a central disc bulge at L5/S1 level with the disc having loss of hydration and a possible annular tear". These findings are of some significance in that, in his general findings, his Honour considered that, "… it is his back condition which dominates the debate about physical injury. I find that the other things are essentially of nuisance value" (see [104]). As at the date of the letter, these investigations had not been conducted, the bony injury had not been discovered, and the respondent had not been given any medical advice or information about his injury other than that contained in his discussions with Dr Sutherland, which are referred to in the above passages.
(c)As already noted, as at the date of the letter, the respondent was still at work. He was having some difficulty with his symptoms but it is a reasonable conclusion, and one which was open to the learned trial judge, that if the respondent had commenced proceedings at that time, on the basis of the injury as known to him at that time, his damages would be restricted to an award for non-economic loss. He did not stop working until August 2006. He was then off work for 12 months, and when he returned to work, returned on limited hours until eventually on 9 September 2011, his employment was terminated. The assessment of damages for loss of earning capacity was based on this history. This history is consistent with his Honour's finding concerning the question of actual knowledge at the date of the letter.
As the respondent's symptoms developed, radiological investigation confirmed the existence of bony injury, and his injuries extended to psychological injury, it would have become clear to the respondent that his claim for personal injury would involve a significant claim for damages which would include not only a significant component for non-economic loss, but also components for loss of earning capacity and other aspects of economic loss. Clearly, as these matters became clear, the respondent acquired knowledge of an injury which was significant enough to warrant the bringing of proceedings. However, the respondent's knowledge of the extent of his injury as at the crucial date, 21 May 2006, was limited to some ongoing symptoms arising from soft tissue injury. Although he was awaiting the results of an x-ray for his wrists, there had been no other radiological testing or investigation. There was nothing to suggest that the injury was worse or likely to become worse than what was being experienced by the respondent at that time. Given the respondent's actual and constructive knowledge of his injury at that time, it was open to his Honour to find that it would not have been reasonably possible for Mr Barclay to give any advice as to whether s 27 of the Civil Liability Act would preclude an award for damages. Without such advice, in the circumstances of this case, it could not be said that proceedings were warranted at that time. It follows that his Honour's conclusion that he was not affirmatively satisfied that Mr Barclay's letter sufficiently established actual knowledge of the fact referred to in par (c) of the definition, and his ultimate conclusion expressed at [30] that he was not satisfied that the date of discoverability was before 21 May 2006, were open on and justified by the evidence.
Accordingly, grounds 1 and 3 must fail.

Ground 2

"2The learned trial Judge erred in failing to take account of the absence of evidence as to when the plaintiff did have the actual knowledge referred to in paragraph (c) of the definition of date of discoverability in Section 2(1) of the Limitation Act 1974 and the absence of evidence of the date when the plaintiff provided instructions to institute proceedings. Had those matters been taken into account then the conclusion reached at [30] of His Honour's reasons for judgment could not have been reasonably reached."

This ground specifically concerns his Honour's ultimate conclusion at [30]. For the reasons expressed above, this ground must also fail.
The onus of proof was on the appellant to satisfy the trial judge that the limitation period referred to in s 5A precluded the commencement of proceedings. Given that proceedings had commenced on 20 May 2009, the focus of the enquiry was whether the date of discoverability was prior to 21 May 2006. It was entirely appropriate for his Honour to focus his enquiry on whether he was satisfied that the respondent had actual or constructive knowledge of the relevant information on or before that date. The fact that the respondent did not give specific evidence which would establish when he acquired the relevant knowledge, was irrelevant. A consideration of the whole of the evidence, as found by his Honour in accordance with the summary discussed above, established that the time when actual or constructive knowledge of the relevant fact was acquired would have been some time well after 21 May 2006. The crucial fact was that his Honour was unable to find that the limitation period had commenced by 21 May 2006, and that was sufficient to dispose of the matter pleaded in defence.
Viewed in that context, it was of little importance as to when instructions were actually given by the respondent to commence proceedings.

Conclusion

As none of the grounds of appeal have been made out, I would dismiss the appeal.