Richardson v Transport Accident Commission
[2013] VCC 1499
•31 October 2013
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
Case No. CI-12-02206
| ANDREW GARNET RICHARDSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 11-12 and 18 June 2013 | |
DATE OF JUDGMENT: | 31 October 2013 | |
CASE MAY BE CITED AS: | Richardson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1499 | |
REASONS FOR JUDGMENT
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CATCHWORDS: Limitations of Actions Act 1958 – s23A - Accident Compensation Act 1985 – s134AB - transport accident 22 years prior to issuing of application – injury to plaintiff’s left leg – surgery – some bowing of leg – accident occurred on “protected” journey as then covered by Accident Compensation Act 1985 – benefits paid by worker’s compensation insurer – plaintiff then remained in employment and had no medical treatment for lengthy period – increase in symptoms followed by collapse of leg resulting in further surgery, again paid for by worker’s compensation insurer - serious injury certificate issued during conduct of hearing – whether general or specific prejudice has occurred – effluxion of time – consideration of reasons for delay – whether plaintiff has discharged burden of proof – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with Ms M Lang | Harris Lieberman |
| For the Defendant | Mr W R Middleton SC with Mr R H Stanley | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s23A of the Limitations of Actions Act 1958, hereinafter referred to as “the Act”. There was no argument but that s23A applies – see s27B(2)(c). Such an application requires consideration of the factors set out in s23A(3), although that list is not exhaustive. The proposed action by the plaintiff relates to a transport accident which occurred on 13 July 1990 at or near the intersection of Chapel Street and Hargreaves Street, Bendigo. A motorcycle ridden by the plaintiff collided with a motor vehicle driven by Ms Ethel Madden. I shall return to the circumstances of the accident in a little more detail shortly, but it can be said at the outset that the occurrence of the relevant transport accident is admitted. The injury sustained by the proposed plaintiff (whom I shall henceforth refer to as “the plaintiff”) is essentially one to the left leg.
2 The injury having been sustained in a transport accident, a necessary prerequisite to the pursuit of damages is the obtaining of a serious injury certificate or leave of the Court pursuant to the provisions of the Transport Accident Act 1986, hereinafter referred to as “the TA Act”. An originating motion seeking such leave, and also seeking an extension of time pursuant to s23A of the Act, was filed in this Court on 11 May 2012. As is set out in an affidavit of the plaintiff’s solicitor, Ms Lara Block, measures in relation to investigating the situation and initiating certain steps to be taken prior to the issuing of the originating motion commenced in August 2011. It is not suggested that, once Ms Block took instructions from the plaintiff on 10 August 2011, there was then untoward delay in issuing proceedings. Certain steps had to be taken, and these seem to me to have been done in a timely fashion.
3 It should also be noted that, on the second day of the hearing, a serious injury certificate pursuant to the provisions of the TA Act was in fact issued – see Transcript (hereinafter referred to as “T”) 114. This followed considerable, sporadic discussion about the manner in which what were effectively the joint applications were to be conducted and decided. The effect is that what is now required is solely a ruling in relation to s23A of the Act.
4 I shall discuss certain aspects of the facts in greater detail shortly. However, the bottom line is that a period of almost 22 years passed between the occurrence of the accident and the issuing of an application for extension of time.
5 Mr A Adams QC with Ms M Lang of counsel appeared on behalf of the plaintiff. Mr M Waugh of counsel also contributed to the plaintiff’s written submissions. Mr W R Middleton SC with Mr R H Stanley of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits, and was cross-examined. The balance of the evidence was documentary in nature. It was extremely extensive and was, in essence, tendered by consent or without objection. In addition, counsel made well-reasoned and helpful written submissions after the conclusion of evidence. I shall now turn to a more detailed discussion of the factual background. Henceforth, I shall refer to the defendant as “the TAC”.
Factual background
6 The following findings of fact are made solely for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, damages and the like. Whilst some attention was paid to these issues, it was in the context of the present application.
7 The plaintiff is 43 years of age, he having been born on 9 October 1970. Thus, as at the date of the accident on 13 July 1990, he was 19 years of age. The accident occurred when he was riding his motorcycle home from work, his occupation at the time being that of an apprentice bricklayer. That he was riding home from work is of relevance because, as at that time, journeys to and from a place of employment were “protected” under the Accident Compensation Act 1985, hereinafter referred to as “the AC Act”. Pursuant to s83(2)(b) of the AC Act as then in force, injury sustained whilst a worker was travelling between his or her place of residence and place of employment was deemed to arise out of or in the course of such employment. Such provision has long since been repealed, but was operative as at the date of the accident. In broad terms, its relevance lies in the fact that the plaintiff effectively obtained his entitlement to statutory benefits, including medical and like expenses, pursuant to the provisions of the AC Act and not the TA Act. Whilst the body which was originally responsible for the payment of benefits was the Accident Compensation Commission, this subsequently, in essence, became the Victorian WorkCover Authority. For the sake of simplicity, I shall refer to the statutory body ultimately responsible for the payment of such benefits as “the VWA”.
8 Returning to the accident, the plaintiff was riding his motorcycle in an easterly direction along Chapel Street, Bendigo. He alleges that Ms Madden was driving in the opposite direction and, at the intersection with Hargreaves Street, suddenly did a right-hand turn or U-turn across his path. I shall return to the fact that Ms Madden was approximately 63 years of age at the time, she having been born on 7 August 1927. Thus, as at the date of the application for extension of time being issued, she was aged 84 years. I gather that Ms Madden’s version of events is or was that her vehicle was going very slowly, if not virtually stopped, and with a line of cars facing her, these apparently waiting for the opportunity to do a right hand turn in the opposite direction to that in which Ms Madden was turning. There is then the suggestion, apparently obtained from a witness, that the plaintiff had sped up from behind a line of cars turning right into Hargreaves Street, swerved from this line of cars and struck the very back of Ms Madden’s vehicle. She does not seem to have observed the motorcycle prior to the accident. There shall be further discussion in relation to this witness, who may well now be deceased. As is probably apparent, the plaintiff denies that the accident occurred in this fashion.
9 Without going into detail concerning the allegations as to what occurred, suffice to say that the plaintiff struck his left leg forcefully, causing it to snap. He was in a state of shock, but can remember the police attending and being taken by ambulance to the Bendigo Base Hospital, where he was placed under the care of Mr J G Mander, orthopaedic surgeon. As shall be discussed, Mr Mander died in 2011. It would appear that the plaintiff had sustained a supracondylar fracture of the left femur and ultimately came to surgery in the form of open reduction and internal fixation by the use of a pin and plate. Again, the precise details of the treatment which the plaintiff received in hospital need not concern us. It is sufficient to note that three surgical procedures were carried out, the last being on 23 May 1991 when the metal and hardware previously placed in the plaintiff’s leg were removed. The result was that he ended up with a bowed left leg.
10 Two matters of relevance concerning events in 1990 and 1991 are firstly that the plaintiff made a claim pursuant to the AC Act and received weekly payments in respect of his absences from work, as well as payment for the surgery and other treatment. The second is that the necessary paperwork was completed by the plaintiff’s father, who had apparently spoken to the plaintiff’s then employer (a small amount was completed by the plaintiff’s mother). Thus, by the time that the plaintiff returned home from hospital, the situation in relation to statutory benefits pursuant to the AC Act had been taken care of by his father. The plaintiff did not see a solicitor.
11 However, a further aspect of this is as follows. The plaintiff’s father, who was the chief engineer at the Bendigo Base Hospital, died some five years ago. After the plaintiff had been discharged from hospital, the plaintiff’s father spoke to him about taking Ms Madden to court, or something to that effect, but the plaintiff said that he did not want to. It would seem that there was very little damage to his motorcycle. What there was, he paid for himself – see T 68. The plaintiff gave evidence that his father also told him that he had “put a TAC claim in and it’s going to be there for when I need it …” – see T 69. The plaintiff did not sign or complete the TAC claim form and did not see it at that time. However, he claimed that he had subsequently seen it in the chambers of Mr Michael Waugh of counsel (Mr Waugh had some involvement in this matter, particularly in relation to the paperwork). I might say that some confusion exists about this form and as to whether or not the form to which the plaintiff was referring is in fact a claim form pursuant to the AC Act. I think it highly unlikely that it was. Indeed, it was conceded that the plaintiff or his solicitors had never possessed such a form – see T 112. What I do accept is that a TAC claim form was completed by the plaintiff’s father, but its whereabouts are now uncertain. I shall return to the arrangements that existed in 1990 and 1991 between the VWA and the TAC in relation to transport accidents that occurred on “protected” journeys.
12 Returning to the forms that were under discussion, it is apparent that, in relation to the claim form under the AC Act, this is completed in different handwritings. It was completed by the plaintiff’s father, a small portion by his mother, and partly by his then employer. It would also seem that the plaintiff signed it, although his recollection of this is far from clear. He was on medication at the time.
13 When pressed in cross-examination, the plaintiff asserted that he “left all the paperwork and everything up to my parents” – see T 74. He also claimed that, at the time, he had little knowledge (and still does not have great knowledge) concerning the purpose of paying registration fees, what was covered by such payment and the like. He asserted that, at the relevant time, he knew nothing about any rights which he might have to sue a negligent driver. He knew nothing about a six year limitation period – see T 77.
14 I accept the description of the system that operated at the relevant time as between the VWA and the TAC in relation to injuries sustained in transport accidents on “protected” journeys. In essence, I accept that the material, including affidavits, placed in evidence on behalf of the TAC accurately describes that system. Following receipt of a claim of this nature, an electronic claim number would have been allocated by the TAC. However, the administration of the claim would have been carried out by the VWA and the payment of benefits made pursuant to the AC Act. As I understand it, there was in existence what was described as a “buyback” scheme pursuant to which the TAC paid to the VWA a global sum intended to embrace all amounts paid by the VWA in respect of claims relating to transport accidents which occurred on “protected” journeys. In other words, the TAC did not scrutinise, and was not aware of, amounts paid in relation to each individual claim. It was not aware of the particular items or payments constituting the amount involved in the individual claim, or the identity of the providers of medical and like services. It had no particular awareness of the circumstances or the “rights and wrongs” of a particular accident or occurrence of injury unless matters were taken beyond the stage of payment of statutory entitlements. Rather, upon receipt of the appropriate form a claim number was allocated, the claim became one of those involved in the “buyback” scheme and ultimately a lump sum, not broken into components, was transferred from the TAC to the VWA.
15 I have referred above to a witness to the accident. This witness was apparently a gentleman by the name of Bailey. As shall be discussed, his name appears on a police Incident Form. Ms Madden has recounted a conversation with a witness following the accident, although she would not seem to be aware of his name. It would seem that, potentially, his account of what occurred may have favoured the version of events supporting the position as put by Ms Madden. There is a considerable amount of speculation involved in this, as Mr Bailey died on 3 December 1994. I would point out now that his death occurred within six years of the accident and I shall return to the question of whether any prejudice to the TAC results from this.
16 There was also some argument as to whether, with the passage of time, the layout or format of the intersection had changed. Mr Middleton raised this issue at the outset – see T 13 and following. He referred to instructions which he had that, on the day of the accident, there were no traffic lights and a single lane in each direction, in addition to there being no median strip. The plaintiff gave evidence that the set up of the lanes is the same as it was at the time of the accident in 1990, being a dual carriageway in each direction with right turning lanes and a median strip. The only difference relates to the installation of certain traffic lights and some alteration to a “keep left” sign – see T 53 and following. The plaintiff was also cross-examined concerning this. It would be fair to say that, in the submission of the TAC, the issue of possible changes to the intersection over the years remained a possible area of prejudice. I shall return to this when prejudice is being discussed. The factual background shall be discussed in greater detail in the following summary of submissions and in my Ruling.
17 Between 1991 and 2009, the plaintiff received no relevant medical treatment. He completed his apprenticeship as a bricklayer and then essentially worked in that occupation until 2011. There were some interruptions, such as when he travelled overseas for a period in excess of a year and when he did some casual work. However, essentially he worked as a bricklayer throughout that lengthy period. Indeed, at one stage he was running his own business and employing seven people – see T 105. His bowed leg became more painful. Eventually, in 2009, he attended upon his general practitioner, Dr Spillane, who referred the plaintiff to an orthopaedic surgeon, Mr Elie Khoury. Mr Khoury saw the plaintiff in October 2009. He did not advise surgery at that stage, given that the plaintiff was still very active and working as a bricklayer. However, Mr Khoury foreshadowed the distinct possibility of further surgery. I might add that, between 1991 and 2009, the plaintiff had difficulties with activities which he used to enjoy, such as running, swimming and skiing. However, as stated, he kept working.
18 The plaintiff continued to work with increasing pain and difficulties until 5 July 2011, when his left knee collapsed whilst he was working. He saw a general practitioner, Dr Syn, who referred him to an orthopaedic surgeon, Mr Dugal James. Surgical procedures were carried out, including an arthroscopy and a corrective osteotomy. Ultimately, the VWA, through its agent (QBE) paid for this surgery and associated statutory benefits. Mr James has foreshadowed further surgery. The plaintiff has returned to part-time sessional or casual work teaching bricklaying at the Goulburn Ovens TAFE.
The submissions on behalf of the parties
19 Both oral and written submissions were made on behalf of the parties. I shall deal with them in the sequence in which the oral submissions were made.
(a)The submissions on behalf of the TAC
20 The submissions of Mr Middleton and Mr Stanley on behalf of the TAC could be summarised as follows.
21 It is said at the outset that the period of delay, namely 22 years, is inordinate. Reference is made to the judgment of O’Bryan J in Lovejoy v Carp & Ors [1999] VSC 223. In that decision, there is reference to an unreported judgment of Young CJ in Tavsauli v Philip Morris (Australia) Ltd, delivered 18 September 1989. In that, it was stated as follows:
“No particular prejudice had been shown but the delay itself is in total sufficiently long to infer substantial prejudice.”
22 The delay that was being dealt with there was one of ten years from the date of accrual of the course of action to the issue of the Writ. (My attention was drawn to these decisions by Mr Middleton prior to the delivery of the written submissions to which he spoke – see T 125).
23 Section 23A of the Act gives the Court a discretion to extend the period in which an action may be brought if it is “just and reasonable so to do”. Section 23A(3) then lists a number of factors, but this list is not exhaustive – see, for example, Lovejoy. As was said in Tsiadis v Patterson (2001) 4 VR 114 and in Bell v SPC Ltd [1988] VR 123, a number of competing considerations must be synthesised in arriving at a conclusion that takes account of them all, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them.
24 The onus is upon the applicant plaintiff to show that his case is a justifiable exception to the rule. He has a positive burden of demonstrating that the justice of the case requires the extension of time – see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In the present case, there has been an attempt to shift the burden back to the TAC. An example of this relates to an explanation as to why, in the admitting document at the Bendigo Base Hospital, the TAC was shown as the responsible authority in relation to the plaintiff’s medical expenses. Attempts such as this to reverse the onus are not well founded. In Taylor, McHugh J set out four policy considerations which are relevant to the operation of the Act. Firstly, as time goes by, relevant evidence is likely to be lost. That is applicable in the present case. The plaintiff’s father, the treating surgeon, Mr Mander, and the independent witness, Mr Bailey, have all died and Mr Cedric Naylor, who carried out a medico-legal assessment not long after the accident, cannot be found. Secondly, McHugh J said it was oppressive, even cruel, to a defendant for an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and, fourthly, the public interest requires that disputes be settled as quickly as possible.
25 In relation to the length of delay, the period from the accrual of the cause of the action to the making of this application for an extension of time is two months less than a period of 22 years. In Lovejoy the relevant delays were for periods between 11 and 20 years, these being described by O’Bryan J as “inordinate”. O’Bryan J went on to say that inordinate or inexcusable delay without adequate explanation has the consequence that the quality of justice is diminished.
26 Reference is also made to observations in Taylor supporting the proposition that inordinate delay without adequate explanation will, of itself and apart from any question of specific prejudice, result in the application to extend time being refused. This is because delay gives rise to a substantial risk that it will not be possible to have a fair trial of the issues in the action.
27 The delay of 22 years has caused both specific and general prejudice to the TAC. The affidavit of Mr Peter Fulton, a solicitor employed by the TAC and who has care and conduct of the proceeding on its behalf, and it being sworn on 21 December 2012, refers to a discussion between Mr Fulton and Ms Madden. The affidavit of the plaintiff alleges that Ms Madden suddenly and without warning attempted a U-turn in his path. Mr Fulton was informed by Ms Madden that she did not know where the motor cyclist came from, but that a witness who spoke to her immediately after the accident told her that the motorcyclist swerved out from behind the cars that were stopped, waiting to turn right. Clearly, evidence of a factual nature would be important in relation to this dispute.
28 The plaintiff himself admitted that his memory did not serve him well in relation to whether other vehicles were travelling in the same direction as Ms Madden – see T 58. The plaintiff also gave evidence concerning a vehicle travelling alongside him and keeping pace with him, this apparently being a Mini – see T 63.
29 The witness referred to in the police report, namely Mr Bailey, has since died. It would seem that he died in 1994. If a claim had been made been made between 1990 and 1994, the TAC would have had the opportunity of interviewing Mr Bailey. Had a statement been obtained from him and had he died prior to the hearing, such statement would, ordinarily, be admissible evidence. It is assumed that he is the person who spoke to Ms Madden concerning the plaintiff pulling out from behind a line of stationary cars and accelerating. Whether the evidence of Mr Bailey would have favoured the plaintiff or the TAC is conjecture, but no statement was obtained from him.
30 As set out in the affidavit of Mr Fulton, in addition to the Incident Report of the police, which is Exhibit Q to the affidavit of the plaintiff of 13 March 2012, there is normally a handwritten report known as a “510 report”. Enquiries made by Mr Fulton’s assistant have revealed that such reports are only kept for seven years after the date of an accident. If such a document had been prepared, it would have contained relevant information. In the police material that is available, there is no suggestion that statements were taken from the plaintiff, Ms Madden or from any witness.
31 Further, Mr Fulton’s affidavit refers to the fact that the accident scene has changed significantly since 13 July 1990. Attempts have been made to obtain evidence concerning this, but the layout of the intersection has not been determined conclusively. What is now being attempted is a reconstruction of the physical environment which was in place in excess of 20 years ago, and that is fraught with danger, particularly in a situation where there are discrepancies in the evidence of the parties or witnesses. The passage of time has precluded the TAC from undertaking investigations in a timely way, comparatively contemporaneous with the event. Had it been able to do so, it would have been able to determine matters of relevance, including whether there were other witnesses. There is a reference to the driver of a Mini who might or might not have been Mr Bailey. Other people may have been present, but the police cannot assist in this regard.
32 In relation to the issue of damages and any intervening event, the 22‑year delay has severely impeded the TAC’s ability to adduce evidence which could reduce or dissipate the TAC’s liability. As set out in Mr Fulton’s affidavit, the treating surgeon, Mr Mander, is now dead, he having died on 20 August 2011. Any files of Mr Mander, other than hospital records, have not been able to be found, despite various enquiries.
33 In 1990, the plaintiff was examined on behalf of the VWA by Mr Cedric Naylor for medico-legal purposes. Again, a considerable number of enquiries have been made, but Mr Naylor cannot be located. (I indicated from the Bench that I had seen Mr Naylor some years ago in relation to personal litigation in which he was involved and that he may have suffered a stroke, appearing to be in very poor health – see T 29 and 30.) In any event, it was the submission of Mr Middleton, based on the affidavit of Mr Fulton, that a considerable number of steps had been taken in an endeavour to ascertain the whereabouts of Mr Naylor, but these had been unsuccessful.
34 Continuing with Mr Middleton’s submissions, the plaintiff’s evidence would indicate that he was also treated by a physiotherapist, Mr Shue, in 1991, but nothing has been obtained from him. Mr Mander and Mr Naylor are significant in that they were the only doctors who reported in the 19 year period from 1990 to 2009, when the plaintiff saw Mr Khoury. Further, it would appear from the plaintiff’s evidence at T 82 and from the report of Mr Mander of 19 July 1991 that the plaintiff would have seen Mr Mander on something like eight occasions. It would also appear from the conclusion of Mr Mander’s report that, as at the last time that he saw the plaintiff, the plaintiff had made almost a full recovery from his injury.
35 In relation to Mr Naylor, there are two reports of his available, these being dated 22 December 1990 and 20 August 1991. In the latter report, Mr Naylor expressed the opinion that there was no impediment to an ultimate full return to work and full recovery, whilst also saying that it was too early to assess permanent impairment. However, he also referred to a number of symptoms and restrictions which the plaintiff had. It would appear that, had the plaintiff applied in respect of serious injury in the mid-1990s, he would have succeeded.
36 Further, the plaintiff referred to Mr Mander as a “butcher” who had sent him back to work too early and who had been incorrect in suggesting that the plaintiff was walking well as at 20 June 1991. It is to be remembered that the plaintiff had three operations, two significant operations on his knee in 1990 and the removal of the metal in 1991. Clearly the plaintiff takes issue with a number of the statements made in Mr Mander’s report. Further, the plaintiff’s evidence has been to the effect that the bow in the leg dates back to his treatment by Mr Mander, and the bow has been there since the surgery – see T 83. There is further evidence at T 89 to the effect that the surgical procedure of 1991 left the plaintiff with a bow leg, a proposition that is quite inconsistent with what the plaintiff is suggesting in submissions about the bow developing over a period of time. If an application for serious injury had been made to the court in the period July 1990 to July 1996, the plaintiff clearly would have succeeded in satisfying the test in Humphries v Poljak [1992] 2 VR 129 for pain and suffering consequences alone, bearing in mind his evidence in this application.
37 Reference is made to the plaintiff’s evidence between T 85 and T 87. He agreed that there had been an ongoing problem with pain over the last 20 or more years. There has been a constant ache for a very long time. He was reluctant to take medication because he had heard bad stories about it but, apparently, had heard nothing about his ability to bring a claim for common law damages. That is despite the fact that his mother had experience as a nurse’s aide. There was no affidavit from her. Overall, given the problems that the plaintiff had and the stories which he had heard, it is unbelievable that he would not have been aware of his ability to prosecute rights at common law. This is not explained adequately in either his affidavit or in his oral evidence.
38 There is further evidence concerning his various restrictions in the 1990s at T 90 and following. For example, he had to obtain a brace to use when he went skiing, the plaintiff being a longtime skier. He had started skiing at age fifteen, but had only done that twice in the long period between then and approximately 2007.
39 In addition, by reason of the delay, the TAC has been precluded from carrying out further investigations. Reference is made to the affidavits of Mr Fulton and of Mr Anthony Caruana (an employee of the TAC), it being of 12 June 2013 (Exhibit 1). These investigations would have included gathering notes of treating medical practitioners; conducting surveillance of the plaintiff; having the plaintiff medically examined; contacting former employers with a view to ascertaining the nature and extent of the plaintiff’s work duties since the incident; and investigating the possibility of intervening acts. The prejudice is made more acute because of the complete lack of medical treatment received by the plaintiff between 1991 and 2009. Reference is made to paragraph 3 of his further affidavit of 28 May 2013 and his evidence at T 88. In essence, the plaintiff said that he saw no doctor after Mr Mander or Mr Naylor until October 2009, other than a doctor in Brisbane for a sand-fly bite.
40 In relation to general prejudice, reference is made to the judgment of McHugh J in Taylor. There are times when the quality of justice deteriorates because of delay. Sometimes this is palpable, as in the death of a witness or destruction of an important document. Sometimes the deterioration is not recognisable, even by the parties. Important evidence may disappear without anybody “knowing” that it ever existed. McHugh J stated that the longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
41 In Lovejoy, O’Bryan J cited with approval much of what had been said by McHugh J in Taylor. He referred to the quality of justice being diminished by inordinate delay and cited Young CJ in Tavsauli to the effect that no particular prejudice had been shown but the delay (10 years) itself was in total sufficiently long to infer substantial prejudice. A 22 year delay will no doubt diminish the quality of justice as the memories of all witnesses, including Ms Madden and, for that matter, the plaintiff, diminish. There were times when he struggled to remember matters. McHugh J stated in Taylor that “what has been forgotten can rarely be shown” and that is most apt in the face of a 22 year delay.
42 In relation to the plaintiff’s conduct in not prosecuting his case in a timely manner, the plaintiff has had the opinion from the outset that Ms Madden was at fault in relation to the collision and his injury – see T 74 and T 80. In relation to his knowledge of his legal rights, the plaintiff gave evidence that, in the first or second week after being in hospital, his father spoke to him about taking Ms Madden to court. The plaintiff said that he did not want to because she had been through enough. His father said that he had put in a TAC claim which was going to be there for when the plaintiff needed it. The plaintiff gave details of this at T 77 and T 78. The plaintiff understood this to mean that, if he had later troubles with the leg, he would be able to receive help from the TAC. The plaintiff’s father is now dead. It is evident from the admission document at the Bendigo Hospital that the person financially responsible was described as the TAC. It seems incomprehensible that information of this type would not have been passed on to the plaintiff or his father.
43 At T 80, the plaintiff conceded that he knew that he had rights in relation to the TAC when the claim was put in. Whilst only a blinker was broken on the plaintiff’s motorcycle, it is remarkable that, even though he was only 19 years of age at the time, he would not have sought to recover damages from the person whom he apparently blamed for both the property damage and/or the personal injury. It is also apparent from what has been said above that the plaintiff’s father spoke to him about taking Ms Madden to court, and that represents an acknowledgment that he knew that he could so do.
44 The plaintiff was willing to say things that he thought would help his case, including some of his observations concerning the TAC claim form and who completed it. The death of the plaintiff’s father, who was involved in what occurred with the form, is another instance of the prejudice which has arisen. There are a number of matters concerning the completion of the form and his advice to his son concerning which he could have given evidence. The plaintiff asserts that he had no knowledge of much of this, and left all the paperwork to his parents.
45 The plaintiff was also reluctant to deal with matters in a truthful and frank fashion in relation to his knowledge of the purposes behind the payment of vehicle registration. Further, there was no point in putting in a TAC claim form if it was not in contemplation of seeking common law damages. The plaintiff was already receiving weekly payments of compensation from the VWA, having received these for six months in 1990 and a further three months in 1991. All his medical expenses had been paid. He knew that a claim form had been put in on his behalf to the TAC and this is a recognition that he had an ability to prosecute his rights at a time in the future.
46 In his evidence, the plaintiff repeated on a couple of occasions that his father had told him that he had lodged the claim form on his behalf in case he needed it “down the track” – that is, if he had trouble with the leg later on, he would be able to receive help from the TAC. He agreed with the proposition that he knew that he had rights as against the TAC when the claim form was put in. This, at T 79, is a damning answer. He agreed that he sat on his rights because he “didn’t need it” – see T 80. This is the equivalent of a person with knowledge who simply did nothing. The plaintiff agreed that, because his father told him that he had put the form in so that he could use it “down the track”, the plaintiff knew that he had rights in relation to the TAC and sat on them until August 2011.
47 The plaintiff was told by Mr Khoury in October 2009 that he would have to keep walking on his leg because he was too young for a knee replacement. There is then no adequate explanation for the further delay before the plaintiff next took steps in August 2011. Between 2006 and 2008 he was seeing a solicitor (not his present solicitor) in relation to matters of real estate.
48 The plaintiff also conceded an understanding that he could engage a lawyer to prosecute his rights – see T 95. He referred to a conversation which he had with a woman from QBE. (This seems to have been after the plaintiff commenced treatment from Mr Dugal James, orthopaedic surgeon, in mid-2011.) The plaintiff was already familiar with the use of lawyers, having seen one in relation to his conveyancing issues. He was a man running his own business, employing seven people, and was required to do the paperwork associated with this. He would have had to take out WorkCover insurance. He had aspirations of returning to a tertiary institution. He has intellect and capacity and it beggars belief that he was ignorant of his rights and how he should go about seeking advice.
49 From an early time, the plaintiff was aware of the extent of deformity of his leg. By about 1995, his ability to work was becoming increasingly restricted. It was taking longer to get a day’s work done, and with increasing pain. Reference is made to T 91 and to paragraph 12 of the plaintiff’s affidavit of 13 March 2012. It is repeated that there is ample evidence from the plaintiff supporting the proposition that he would have been found to have a serious injury prior to July 1996.
50 It is again asserted that the plaintiff sat on his rights. He believed that the injury was Ms Madden’s fault. He was aware of the legal recourse available from the TAC. However, he did nothing to prosecute his claim despite early, chronic and severe pain, and limitation and deformity relating to his left leg injury. All that he has asserted in this regard is, essentially, that he did not see a solicitor – see paragraph 18 of his affidavit of 13 March 2012. There is little more to find in relation to any explanation for the delay between 1990 and August 2011. The plaintiff’s only explanation for not prosecuting his rights for in excess of 20 years, as given in oral evidence, is that: “No explanation. I got told ‘Be happy with what you got’.” This can be found at T 103. The following question and answer were:
“You say no explanation in the face of what you say is your father’s advice that you put a claim into the TAC for down the track?---Yes.”
51 That explanation is totally inadequate. It is contrary to any suggestion that the plaintiff knew nothing about his rights. There has been a recognition of the rights, and the plaintiff has no proper or adequate explanation in relation to them. The inaction by the plaintiff should be considered in the context of his being able to run his own business, employ people, purchase investment properties (for which he repeatedly consulted lawyers) and the like.
52 In relation to the plaintiff’s written submissions (submissions having been exchanged), the TAC says as follows. There is no evidence that the Bendigo Hospital lodged a TAC claim and some doubt about whether the plaintiff’s father lodged such a claim. There is no evidence that the TAC had knowledge of the precise nature of any payments it made to the VWA. They were probably in relation to medical expenses and some weekly payments, but that does not mean that there was the type of awareness suggested by the plaintiff.
53 It is incorrect to submit that the plaintiff’s leg bowed over time. Reference has been made to this. The consequences to the plaintiff were clearly serious in the period 1990 to 1996, and the suggestion that they are now serious because he is out of work and faces a further surgical procedure ignores the plaintiff’s own evidence. Opinions from Drs Rowe, Kossman and Dickens about the plaintiff’s inability to return to bricklaying, and that representing a serious loss of earning capacity caused by the motor vehicle accident, are based on the history given. The better medical witnesses to have been asked this question might have been Mr Mander and Mr Naylor. This is one of the areas of prejudice – that is, having doctors report retrospectively about a condition 20 years ago as opposed to what Mr Mander and Mr Naylor seem to be suggesting was the situation at the time.
54 The plaintiff asserts that the late admission of serious injury during the present application in some way assists his case. He would have met the test prior to 1996. The current late certification does not bear upon the application.
55 The submission that the plaintiff’s cause of action did not really accrue until he received advice from a lawyer for the first time is incorrect. The cause of action accrued on 13 July 1990. Reference is made to the decision of the Court of Appeal in Hayes v Transport Accident Commission (No 2) [2010] VSCA 104.
56 The plaintiff’s legal submissions refer to the fact that the absence of legal advice is tied up with the plaintiff’s stoicism. In fact, the plaintiff thought that he could sit on his rights and await the appropriate time to prosecute his claim, knowing that his father had put the claim in for him. The fact that the plaintiff ultimately went to see a solicitor about his condition is an acknowledgement that he knew his rights and where to go to check them out.
57 The plaintiff’s submissions also seem to contain an allegation of fault on the part of Ms Madden because she was charged and fined in relation to the accident. Section 33 of the Infringements Act 2006 prohibits this. The TAC also rejects the proposition that the passage of time has been advantageous because it has allowed a proper assessment of the end result of the injury to be made. This is a preposterous suggestion, particularly giving the prejudice that occurred over 22 years.
58 Submissions as to the experience of the TAC and the VWA are irrelevant. The suggestion that the plaintiff relied upon the good offices of the statutory authorities to explain to him what his entitlements were does not assist, as he never consulted the TAC. Similarly, correspondence concerning compensation in 1990 and 1991 should have indicated to the plaintiff that he had the capacity to seek relief beyond weekly payments and medical expenses. The letters are basically about medical appointments, but also provide small pieces of information about compensation.
59 In answer to a question of mine concerning the date of the accrual of the cause of action, Mr Middleton again referred to the decision in Hayes and to s93(1) of the TA Act. He submitted that it cannot be correct that the cause of action does not accrue until a serious injury certificate is granted or the entitlement to one established. If that were the case, there would be no need for an application such as the present one. The same could be said of a submission that the accrual of the cause of action occurs when the plaintiff’s injury is sufficient to be considered serious and he has knowledge of that. There is no warrant for the suggestion that the actual or real accrual of the cause of action occurred when the plaintiff became unable to continue working in his trade. Whilst the TAC submits that the plaintiff would have succeeded in relation to a serious injury certificate if he had applied between 1990 and 1996, this remains a question of the consequences suffered by him and is not determinative of whether or not he would necessarily have obtained a serious injury certificate.
60 The TAC refutes the submission that the plaintiff relied upon advice given to him by statutory authorities. There is no suggestion that the TAC gave him any advice. The fact that he, allegedly quickly, sought legal advice when QBE was slow to act overlooks the fact that his position was serious two years previously when he went to see Mr Khoury. It also proves that, when there was an issue with a relevant authority that he could not resolve, he obtained legal advice.
61 The plaintiff knew that there was a claim form on foot with the TAC, but did nothing about it. Any amounts paid by the TAC would have been at the request of the VWA. Attempts to reverse the onus should not be accepted.
62 Finally, the only police report that is available is uninformative and, if anything, creates confusion and doubt concerning the circumstances. That document appears to be computer generated, and so generated comparatively recently.
(b) The submissions on behalf of the plaintiff
63 The submissions of Mr Adams and Ms Lang on behalf of the plaintiff, to which written submissions Mr Waugh apparently had input, could be summarised as follows.
64 In relation to onus, whilst the plaintiff bears the ultimate burden of satisfying the Court that appropriate leave should be granted to him, the TAC bears the evidentiary onus in relation to any prejudice which it may have suffered. Reference is made to the decision of Fisicaro v Cannizzo Lau & Associates [2009] VCC 795.
65 In the present case, the TAC, and its agent, the VWA, knew of the collision and the TAC was content to have a related organisation look after such matters as the nature and extent of injury, medical expenses, hospital expenses, compensation and the like. The VWA looked after these matters and ultimately paid the appropriate benefits. However, as would seem to be accepted, the TAC was, as described in the Bendigo Hospital records, the responsible person.
66 The plaintiff showed extraordinary ability and endeavour in relation to getting on with his life. He had no medical treatment for many years. A complicating factor in this situation is whether the plaintiff had to wait until the injury manifested itself as serious before he brought the present application. If it is a fact of practice that it is only appropriate for the plaintiff to bring the present application when he is, in essence, through the serious injury portals, that is a fact which should be taken into account. From 1991, the plaintiff got on with his life. Over time, the left leg bowed, becoming increasingly painful, and finally, on or about 5 July 2011, it collapsed at work. It was at this stage that the plaintiff contacted the authorised insurer, QBE, and, when it was slow to respond, sought assistance from his solicitor. That solicitor, Mr Keating, did not specialise in work of this type and referred the plaintiff to his present solicitor, with whom he consulted on 10 August 2011. She immediately contacted the TAC, obtained the claim file number from it and then wrote to it. It was about this time that the plaintiff learned that he had common law entitlements over and above any benefits that he had been receiving.
67 The fact that, at this late stage, the TAC now concedes that the plaintiff satisfies the test of serious injury is directly relevant to the determination pursuant to s23A of the Act. The plaintiff does not have a cause of action until he has entered through the serious injury gateway – see Swannell & Anor v Farmer [1998] VSCA 104 and Millard v State of Victoria [2006] VSCA 29. It is then that his cause of action comes alive and the Act can be raised against him.
68 By reason of what is contained in s23A of the Act, the Court now has a wide discretion to extend the time within which an action may be brought if it decides that it is just and reasonable so to do – see Bell. All the circumstances of the case must be taken into account, including those specified in s23A(3)(a)−(f). As stated, the court must synthesise a number of competing considerations, taking all of them into account and bearing in mind that the particular applicant bears the onus of persuading the court that it is just and reasonable to extend the limitation period – see Tsiadis. A consideration of the conduct and position of both parties, including the effect of the outcome on each of them, is required. Prejudice to the TAC is a relevant factor, but is not determinative – see Clark v McGuinness [2005] VSCA 108 and Fisicaro.
69 Dealing with the circumstances of the case, and particularly the obligatory matters set out in s23A(3) of the Act, the first such matter to be dealt with is the length of and reasons for delay on the part of the plaintiff. This is central to the exercise of the Court’s discretion. The plaintiff is a stoical man, who has got on with life until he could no longer keep working as a bricklayer. As has been stated by the Court of Appeal in a number of cases, stoicism ought not disadvantage a plaintiff. The plaintiff, in all likelihood, had no discernable serious injury and no extant cause of action until recently, when it became evident that he could no longer keep working as a bricklayer. His stoicism is a factor which should be taken into account and is an important ingredient in his explanation for his delay in bringing the proceedings.
70 The reason for the plaintiff seeking assistance in 2011 from a lawyer for the first time was because of the serious plight that he had reached. That is effectively when his cause of action really accrued. It is of advantage to the parties and to the Court to be dealing with the case now when the serious consequences have become manifest. Also, it is important to bear in mind the interaction between s23A of the Act, which was enacted to cover all actions in negligence, nuisance or breach of duty generally and the scheme of the TA Act, which extinguishes common law actions unless and until the serious injury portal has been passed through.
71 It is relevant that the plaintiff did not become aware of his common law entitlement until he consulted his present solicitor, Ms Block, on 10 August 2011. Reference is made to Walla v State Transport Authority [1985] VR 329. The absence of legal advice is tied up with the stoicism. There is no evidence which would justify the inference that the plaintiff thought he could sit back and prosecute his claim when it suited him. The contrary is seen in various extracts from the transcript. For example, reference is made to the plaintiff stating, at T 74, that he had no knowledge that he could bring a claim for personal injury as a result of the accident. There is evidence that he was told by his father in 1990 that “You don’t need anything now we’re looking after you, just get better, just concentrate on getting better” – see T 77. On the same page of the transcript, the plaintiff stated that he knew nothing about the six year limitation period. He made no enquiry as to his rights and did not consult a lawyer. His parents looked after the paperwork whilst he was looked after by the hospital and the physiotherapists. In relation to the TAC, he thought that, if in the future he could not work any more, he could get financial assistance. Between 1990 and August 2011, his attitude was one of “Chin up, carry on” – see T 80. His whole attitude was that he had to both keep on walking and continue working – see T 83 and T 86.
72 The plaintiff repeated that he did not know that, if there were things that needed to be redressed by way of legal rights, he could go and see a lawyer and, when people told him that he should do this, he “…couldn’t really figure out why. If I’ve got a claim why would I need legal representation if it was an old injury” – see T 95 and T 96.
73 In 2009, the plaintiff knew that something was definitely going wrong with his leg and, when he was having difficulties with QBE, he thought that he was getting nowhere and that he needed to go and see a solicitor.
74 When asked what his explanation was for not prosecuting his rights for a period in excess of 20 years, his response was “No explanation. I got told, ‘Be happy with what you got’.” – see T 103. He knew that his leg had been going “downhill” and that he had to start doing something about it. He saved to pay for the surgery himself for a year or two, but continued to work as a bricklayer until breaking down in 2011. The first time that he knew he had a right of action was when so informed by Ms Block – see T 116.
75 The plaintiff also stated at T 68 that his father spoke to him “… about taking it to court or whatever like that and I said I didn’t want to because she had been through enough already and Dad said that he has put a TAC claim in and it’s going to be there for when I need it and now I need it”. In any event, this was in the context of the plaintiff being asked whether he had any comprehension about recovering property damage from a person who has negligently caused an accident. It is clear that the plaintiff has no recollection of having anything to do with paperwork or signing anything about the accident at the relevant time. He stated, at T 69, that his father completed a TAC claim form. At T 74, the plaintiff stated that he blamed Ms Madden for the accident, but had no knowledge that he could bring a claim for personal injury as a result of her driving. He stated that he did not know anything about it, left the paperwork “and everything” to his parents and had no relevant knowledge.
76 Reference is also made to the discussion at T 75 concerning the plaintiff’s awareness of different types of insurance, the purpose of payment of vehicle registration fees, TAC advertisements on the television and the like. The plaintiff repeated that he knew nothing about his rights to sue Ms Madden as a negligent driver prior to seeing Ms Block. The plaintiff stated that he did not ring anybody or consult a lawyer – see T 77. He also said that payments for all treatment and the like had been made by QBE and there is the reference at T 79 to the plaintiff expecting to get financial assistance from the TAC “down the track” if he could not work any more. The plaintiff stated that it made sense to him that his father put in the claim form so that it was there if he had trouble with the leg. However, he did not need it until 2011. When his leg collapsed, he told the doctor that it was an injury that was originally covered by WorkCover and that everything was on WorkCover. He was told to keep on walking on the leg, but ultimately it collapsed. Reference is made to discussions which the plaintiff had with the lady at QBE, including whether or not he needed to see a lawyer. It was after the lack of progress with QBE that he saw Mr Keating, the solicitor who had looked after conveyancing matters for him.
77 The plaintiff was cross-examined about the various work that he has done over the years – see T 99. He agreed that he was obviously having pain in his leg, but did not discuss it with people he was working for or with. It was simply mentioned that he had been in a motorbike accident and had to battle on. The only incidents that occurred over the years were occasions when the plaintiff’s knee would be hit and which would cause pain. The plaintiff described in re-examination how he had started saving to pay for surgery. At T 115, he described the hard work that he had been doing between 2006 and 2011. Ultimately, at T 116, he repeated that, prior to the conversation with Ms Block, he did not know that he had a right of action against the TAC. Prior to that conversation, he had no knowledge of concepts like limitation periods. Evidence such as the fact that the plaintiff saved for a year or two in order to pay for his operation because he had come to the conclusion that his knee was not going to enable him to continue working, that he was going to need surgery, and that he would have to save to pay for it are matters that are completely inconsistent with his sitting on some notional rights that he had. He thought that it was a matter for QBE, being a workers’ compensation matter, but was also saving in case he should need to pay for the surgery himself. Effectively, it was the discussion with his surgeon in which workers’ compensation was mentioned that caused the plaintiff to make contact with QBE. Prior to that, he was going to pay for the surgery himself. That is not someone who is sitting on his rights and making a claim when it suits his convenience.
78 In relation to the extent to which, having regard to delay, there is or was likely to be prejudice to the TAC, this case does not involve complex medical or surgical negligence, a complex industrial accident, product or occupier’s liability, suing an uninsured private individual or the like. Rather, this is a straightforward vehicle accident. The plaintiff’s recollection is not contradicted by that of the proposed defendant. What has been said is that she simply failed to see him when making a turn across his path. It occurred in a well-maintained city street. The collision was immediately investigated by the police and the circumstances immediately notified to the relevant statutory insurers and authorities.
79 The reference in the affidavit of Mr Fulton to an unknown person giving certain information to Ms Madden to the effect that the plaintiff may have come from behind a vehicle which was turning right is hearsay upon hearsay. If this was Mr Bailey, he died in 1994. It is quite apparent that Ms Madden has been interviewed by the TAC. The Court has been given little information as to what she said and there is no affidavit from her. There is no suggestion that she has an unclear recollection, does not really remember, or is confused. There is no suggestion that the accident may not have happened very much in the way the plaintiff describes it. If the witness was Mr Bailey, it is just as likely, if not more likely, that his evidence would have supported the plaintiff’s position. Mr Bailey is named as a witness by the police in a description of the accident which puts Ms Madden at fault. Given the date of Mr Bailey’s death, it is very likely that his evidence would not have been able to have been heard in any event.
80 The TAC has also asserted, via Mr Fulton’s affidavit, that the intersection has changed in some relevant way. Again, this is hearsay upon hearsay. The direct evidence from VicRoads is that it has not. The only alteration has been the introduction of traffic signals allowing easy access for fire vehicles. Mr Middleton has stated that the maps that have been put in evidence are wrong, but it cannot be seriously suggested that there is no one in Bendigo, or no authority, who or which knows whether the intersection is the same or not.
81 The TAC also relies upon the death of the original treating surgeon, Mr Mander, as being a point of prejudice. This is made in the face of unanimous medical opinion linking the plaintiff’s present plight with the motor vehicle accident. There has been no intervening event, no medical treatment and only some physiotherapy over the years between 1991 and 2009. The plaintiff has been questioned concerning whether anything else happened, and his reply is in the negative. There is no evidence to the effect that the medical picture is confused. Reference is made to the opinions of Mr Peter Kudelka and Mr Robert Dickens, orthopaedic surgeons. In the present case, there has been a simple, clear fracture followed by a malalignment and a bowing of the leg. There is no suggestion in the medical material that those examining cannot really proffer an opinion or do not know what has happened to the leg. There is no material before the Court which would enable it to say that the medical picture is confused, uncertain, or needs clarification which cannot be done. There is no suggestion in the medical material of intervening or supervening events. The chances of prejudice in relation to this are minimal, if they exist at all. In fact, the delay allows a proper assessment of the end result of the injury.
82 It is not suggested that the plaintiff was informed by the authorities that have been involved as to what his rights were or what he ought to do in order to protect his position. Both authorities were immediately informed of the collision and both would be well aware of potential common law rights arising from it. He received no information from either authority to the effect that he might have common law rights or that he should seek independent legal advice.
83 In relation to the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action, the physical impairment and its now manifest seriousness and permanence is a circumstance that should be taken into account. Reference is made to Koumourou v State of Victoria [1991] 2 VR 265.
84 Insofar as the date of the accrual of the cause of action is concerned, there are no decided cases in relation to circumstances where there is no cause of action unless and until the plaintiff has passed through the portals of serious injury. It is submitted that the actual real accrual of the cause of action occurred when the plaintiff became unable to continue working in his trade – that is, not until 2011. There has been no delay since then. The plaintiff’s disability will be serious and long term.
85 In relation to s23A(3)(e), the plaintiff acted promptly and reasonably once he knew that the act of the proposed defendant might be capable of giving rise to an action for damages. This was not conceded in relation to the period between 2009, when the plaintiff saw Mr Khoury, and 2011, but the basic explanation for that is that he was told that he was too young for knee replacement surgery and, effectively, to keep walking. He got on with his life accordingly. Subsequently, he commenced saving money to pay for an operation, as he came to the realisation that something had to be done about his leg. It was after this that he obtained legal advice. It is conceded that there was no delay after he obtained such advice.
86 What is set out in s23A(3)(f) concerning steps taken by the plaintiff in relation to obtaining advice has already been discussed. The relevant authorities had been informed immediately and the plaintiff, quite reasonably, relied on that advice. When the position became serious in 2011 and QBE was slow to act, the plaintiff quickly sought legal advice. In relation to the authorities referred to by the TAC, both Tavsauli and Lovejoy are helpful in illuminating how the discretion is to be exercised in some circumstances that clearly differ from the facts in the present case. Reference is made to what was said by Young CJ in Tavsauli. In that case, the plaintiff had received legal assistance from a firm of solicitors shortly after the relevant injury, and indeed had claimed, and been awarded, an amount of workers’ compensation. Young CJ observed that it was impossible to survey the materials from which the chronological statement of facts had been taken without noticing an apparent lack of any sense of urgency in those concerned on the applicant’s behalf even after it became clear that the limitation period must have expired. He observed that the applicant’s conduct and his approaches to various solicitors had been influenced by advice from friends and acquaintances. Young CJ formed the view, having watched the applicant in the witness box, that he understood very well what would be advantageous to his case. He did not accept that the period of delay had been satisfactorily explained.
87 In relation to the decision in Lovejoy, this was a huge claim against police, surgeons, hospital staff and the like with a variety of limitation periods. The Court found that the reasons proffered for the delay on the part of the plaintiff were specious and unreasonable. Sub-paragraphs (a), (b) and (e) of s23A(3) of the Act were found to be singularly unhelpful to the plaintiff. There was found to be general prejudice to the TAC and no specific disability of the plaintiff which could account for or excuse delay.
88 In summary, in the present case the plaintiff did not know of any right to sue the TAC, as evidenced by the fact that he saved, comparatively recently, for one to two years to pay for possible surgery. He could only sit on his rights if he knew what they were. The TAC knew about the claim and made payments accordingly. The TAC was designated by the Bendigo Base Hospital as the person responsible for payment. No explanation has been given by it in relation to this. Finally, reference is made to the decision of Beach J in Van Gerven v Amaca Pty Ltd [2012] VSC 131, where a widow’s application for an extension of time was granted even though the events, the subject matter of the case, took place more than 50 years earlier. It was a case relating to asbestos, and clearly his Honour took into account the fact that the defendant was an experienced litigator in asbestos cases. In the present case, the TAC is an experienced litigator. It does not point to any real prejudice. The Court is entitled to query how it can, given that there is no affidavit from the proposed defendant, Ms Madden. The medical opinion is unanimous that the plaintiff’s condition is due to the 1990 accident. Further, the doctors do not say that, looking back to 1990, it is now very difficult to express an opinion.
The reply on behalf of the TAC
89 Mr Middleton raised a few brief points concerning matters arising out of the submissions of the plaintiff. Firstly, Mr Fulton, in his affidavit, deposes as to the source of the information concerning the person who came up to Ms Madden at the scene and spoke to her. The source of that information is the proposed defendant. If this was an issue of concern, Mr Fulton could have been cross-examined on his affidavit, which he was not. Secondly, physiotherapy, as far as can be ascertained from the material, commenced in 2011 or 2012 and did not go back to the early 1990s. Next, the cases referred to in relation to stoicism are not relevant, because they relate to serious injury applications (I have not set out those cases in the above summary). Fourthly, the evidence concerning the plaintiff’s father putting in a TAC claim form for him in case he needed it in the future has nothing to do with property damage. It was in relation to personal injury. Finally, reliance was placed upon the answer at T 103: “No explanation. I got told ‘Be happy with what you got’.” This does not indicate who it was that told the plaintiff this. The impression conveyed was that it was one of the plaintiff’s parents, but in fact it was not stated as to who made this statement.
90 There was a brief discussion between Mr Middleton and myself in relation to whether or not there is a shift of the burden in relation to prejudice. Mr Middleton, in essence, accepted that there is an evidentiary burden on the TAC to show what specific prejudice has arisen, apart from general prejudice. He submitted that doctors’ opinions may be only as good as the information which they get, and over 20 years such opinions can vary, dependent upon the information.
When did the limitation period commence?
91 An issue of some potential complexity was ventilated during the detailed submissions which were received. This concerned the commencement date of the limitation period. Put another way, when did the cause of action accrue? Ultimately, given the conclusion at which I have arrived, the answer to this otherwise basic question is not determinative of the application. The outcome would be the same regardless of which particular option I selected. Nevertheless, as it did receive some attention during the conduct of the case, I shall deal with it briefly.
92 Five possible commencement dates of the limitation period seem to have arisen directly or by inference. These are:
(i)the date of the accident;
(ii)the date upon which the plaintiff’s condition became serious;
(iii)the date upon which the plaintiff became aware that his injury was serious;
(iv)the date upon which the plaintiff became aware of the “serious injury” requirement in the TA Act;
(v)the date of issue of the serious injury certificate.
93 The TAC asserted that the cause of action accrued on the day of the accident. In so asserting, reference was made to the decision of the Court of Appeal in Hayes. However, some time was spent in cross-examination of the plaintiff and in the TAC’s submissions on the question of whether the plaintiff’s injury was serious and whether he would have obtained a serious injury certificate prior to the expiration of the limitation period.
94 In the written submissions on behalf of the plaintiff, it is said of the words, “the date of the accrual of the cause of action”, that, in the context of serious injury applications, a difficult or tricky situation arises. It is submitted that this has not been addressed in any reported case to date.
95 However, in paragraph 16 of the written submissions on behalf of the plaintiff, there is reference to the serious plight which the plaintiff had reached in 2011 and to his seeking assistance from a lawyer for the first time. It is submitted that this was effectively when his cause of action really accrued. It is not made clear as to whether it was his plight or his seeing a lawyer that provoked the accrual.
96 Further possibilities seem to have been raised on behalf of the plaintiff, including that he had to wait until the injury manifested itself as serious before he brought this application – see T 170. The suggestion seems to be that the cause of action accrued when the plaintiff became unable to continue working in his trade – that is, in 2011. The possibility that the cause of action accrued at the time of the issuing of the serious injury certificate was, in essence, dealt with only inferentially, and more by way of exclusion in the submissions of the TAC.
97 Certainly, in Hayes, which involved a transport accident and discussion of the serious injury “gateway”, counsel for the applicant conceded that the cause of action accrued as at the date of the accident. Neave JA distinguished on the facts what had been said by Mandy AJA in Millard. In essence, the Court of Appeal had said in Millard that the plaintiff had no cause of action at all until the “gateway” requirements of s93 of the TA Act had been satisfied, and that an application to extend the limitation period would have been futile unless and until the “gateway” requirements had been satisfied. In Hayes, Neave JA pointed out that a serious injury application had been made within the limitation period, but had not been determined owing to certain complications. In Hayes, reference is also made to the cases of Swannell and Wilson v Nattrass (1995) 21 MVR 41. It is said in Hayes that the Judge at first instance correctly identified the applicable limitation period as expiring six years after the accident. What was stated in Millard by Mandy AJA, with whom Chernov JA and Ashley JA agreed, was discussed by the Court of Appeal in Primary Health Care Limited v Giakalis [2013] VSCA 75. Having referred to the statement in Millard, Kaye AJA, with whom Weinberg JA and Vickery AJA agreed, stated as follows at paragraph 53:
“From the foregoing, it is, in my view, well established that, unless and until a party, injured in a motor vehicle collision, has access to one of the three gateways prescribed by s93 of the Transport Accident Act, such a person does not have any cause or right of action against the person who might have caused the injury”.
He also referred to an action against a third party that may “spring to life” in the event that the injured person should access one of the three gateways in s93 of the TA Act.
98 Kaye AJA also referred to the earlier decision of Dodoro v Knighting (2004) 10 VR 277. In that case, at paragraph 23, Callaway JA ruled that a decision by a Judge of the County Court refusing leave to an applicant under s93 of the TA Act was interlocutory in nature. His Honour went on to say:
“…it is no more than a preliminary application. Indeed, because there is no cause of action, the application has an even more preliminary character: not only is there, as yet, no principal cause, but there is not even a cause of action”.
99 As stated, what was said in Dodoro was relied upon in Giakalis.
100 In Van Gerven, Beach J considered the operation of s23A of the Act in relation, inter alia, to an estate claim in relation to a death caused by mesothelioma, it in turn resulting from exposure to asbestos. The events in question took place more than 50 years previously. Whilst the injury suffered to the deceased was in the nature of a disease or disorder, there is no doubt but that it was s23A of the Act that was considered to be the relevant legislation in relation to the estate claim – see paragraph 7 of the judgement.
101 It is also clear that Beach J, consistent with an earlier ruling of Williams J in the same matter (see Van Gerven v Amaca Pty Ltd & Anor [2010] VSC 236), found that time began to run when Mr Van Gerven’s mesothelioma was diagnosed and Mr Van Gerven was told that his mesothelioma was caused by asbestos he had worked with in his employment as a bricklayer.
102 Thus, whilst the factual foundation is different, it is apparent that, in Van Gerven, Beach J considered that, in relation to s23A, the date or time at which the limitation period commenced was fixed at least in part by the state of knowledge of Mr Van Gerven.
103 If that approach were adopted in the present case, it seems to me it would be at least arguable that the limitation period did not commence to run until the plaintiff became aware of the seriousness of his plight, as argued by Mr Adams. This may have been in 2009, when the condition of the plaintiff’s knee caused Dr Spillane, his general practitioner, to refer him to Mr Khoury. Alternatively, it could have been on 5 July 2011 when the plaintiff’s knee collapsed whilst he was working, this marking the end of his working days as a bricklayer. As a result of this collapse, he was referred to Mr Dugal James, orthopaedic surgeon, who operated on the plaintiff’s knee on 11 November 2011. This was comparatively complex surgery involving the cutting of bones, the rotation of them, and then the fixing of them into place using screws and plates. Either way, whether it be the deterioration and referral to Mr Khoury in 2009, or the collapse of the knee and subsequent surgery in 2011, that arguably marked the commencement of the limitation period, the plaintiff would still be within time if this were correct.
104 When the observations of Beach J in Van Gerven are combined with what has been said in cases such as Millard, Dodoro and Giakalis, it can be seen that some doubts may well exist as to when the limitation period commences in a case such as this. As stated, it is not necessary for me to make a ruling concerning this. I might say that the weight of authority seems to me to suggest that the date of the occurrence of the accident is not automatically the date of the commencement of the limitation period. In a situation where the facts are such as those in the present case, where there has been something in the order of an 18 year period in which no medical treatment was required, and during which the plaintiff was able to engage in full-time employment of a physical nature, followed by a deterioration and the need for surgery, I am inclined more towards the approach of Beach J in Van Gerven. However, as stated, given the conclusion at which I have arrived, a specific ruling is not required.
105 I turn now to a consideration of the application, leaving to one side any ruling on the issue of when the limitation period commences, but assuming for the following Ruling that the cause of action accrued as at the date of the accident.
Ruling
106 I shall commence by considering the various matters listed in s23A(3), whilst appreciating that such list is not meant to be exhaustive. I am also conscious of the fact that, as has been said in a number of decisions, the task at hand involves the synthesising of the competing considerations so as to arrive at a conclusion that takes account of them all. The plaintiff bears the burden of proof, but, as discussed above, there is at least an evidentiary onus upon the TAC in relation to the matters of specific, if not general, prejudice which it alleges.
(i) Section 23A(3)(a)
107 I turn now to s23A(3)(a). This concerns the length of and reasons for the delay on the part of the plaintiff. Leaving to one side the question of when the cause of action is said to accrue, the length of the delay is a factor which has the potential to be perhaps the most significant obstacle facing the plaintiff. If the date of the accrual of the cause of action coincides with the date of the accident, a delay of almost 22 years has occurred. There seems to me to be no doubt but that the sheer effluxion of time can be a significant factor of general prejudice and can itself be fatal to the plaintiff’s application – see the references in the summary of submissions above as to what was said by McHugh J in Taylor, O’Bryan J in Lovejoy and Young CJ in Tavsauli. Indeed, it has long been recognised that the effluxion of time, on its own, can be an important, if not decisive, factor. There is no doubt but that a delay of almost 22 years is a very long time, longer than the periods considered in most of the applications, successful and unsuccessful, discussed in previous decisions. Of course, this must be taken into account in the synthesising of the various factors.
108 There seem to me to be various reasons for the delay on the part of the plaintiff. I accept him as a witness of truth and accept that he had no knowledge of his rights, the concept of serious injury, limitation periods and the like, until he saw Ms Block. The somewhat singular circumstances present in this case must be borne in mind. Because of the provisions of the TA Act and the AC Act as they then were, and because of the manner in which accidents on “protected” journeys were treated, the plaintiff’s dealings in relation to weekly payments and payment of medical and like expenses were not with the TAC, but were with the VWA or QBE. The situation is further complicated by the fact that, following the accident, all the paperwork was attended to by the plaintiff’s parents. For a period of 18 years from 1991 to 2009, the plaintiff received no weekly payments, he having returned to work, and received no medical treatment. Thus, there was no need for him to be in contact with either the VWA or the TAC during that lengthy period. When his condition deteriorated in 2009, it was with QBE that, understandably, he communicated. In addition, I accept that he began saving in case he had to pay for any proposed operation himself. I might say that this seems to me to underline the fact that, even if he had been told by his father that the TAC claim form had been put in on his behalf in 1990, the plaintiff had essentially no awareness of any immediate involvement by the TAC or of any particular claim that he may make on it. It was when he was having some difficulty with QBE, and before that situation had been solved, that he sought legal advice. This is a brief summary of the reasons for delay that seem to have been operating in this unusual case.
(ii) Section 23A(3)(b)
109 The second factor to be considered pursuant to s23A(3) is the extent to which there is, or is likely to be, prejudice to the TAC. I am not convinced that, apart from prejudice that may be suffered due to the general effluxion of time, specific prejudice of any great note has been demonstrated. I am not persuaded by arguments concerning alterations to the intersection. It may be that lights have been added which afford access for fire trucks from the adjacent fire station. The map put in evidence by the plaintiff would seem to me to indicate that the intersection has otherwise remained much the same. I appreciate the argument of Mr Middleton that the fact that there is a dispute concerning the layout of the intersection is in itself indicative of prejudice that may have been suffered by reason of delay. However, I remain unconvinced that there are not available records, in addition to the map placed in evidence by the plaintiff, as to any road works, alterations and the like that may have occurred over the years. The affidavit of Mr Fulton, filed on behalf of the TAC, refers to the fact that the TAC engaged an assessor who reported that his investigations revealed that, in 1990, the intersection was an ordinary crossroad, and it did not have a right hand turning lane or traffic lights. The source of this information is not revealed. I am not persuaded that the relevant map tendered by the plaintiff is inaccurate or that no records exist as to alterations that may have been made to the intersection. I am not persuaded that it has been demonstrated that any such alterations, if they have been made, in some way impact upon the possible outcome of the case. It seems to me to be sheer speculation, which could well be overcome by investigation of council records and the like. It is also to be remembered that the plaintiff has sworn an affidavit as to the circumstances of the accident and gave oral evidence to the effect that the only differences between the intersection now and as it was in 1990 involves the installation of traffic lights, and a particular traffic light with “a big square sign on it”, this presumably being related to the fire station. In cross-examination, he confirmed that there were two lanes in each direction on the road on which he was proceeding. No affidavit sworn by Ms Madden, which asserts a change in the intersection, or, indeed, at all, was filed and served and she did not give evidence. I do not regard submissions in relation to the possible change of the setup of the intersection as being of merit. I am reminded of the observation of Callinan J in Batistatos v Road and Traffic Authority of New South Wales & Anor [2006] HCA 27 in relation to similar arguments as to a roadways construction, alignment and the like as follows:
“… I am unable to accept that there would not be available objective evidence of relevant engineering standards and practices applicable to roads such as the one in question at the time of the accident.”
110 Admittedly, his Honour was dissenting, but not necessarily in relation to that particular observation. In any event, I am not persuaded that prejudice has been established in this regard in the present case.
111 Similarly, I am not persuaded by submissions in relation to the death of Mr Bailey. He was recorded by the police as being a witness, and Ms Madden has apparently stated that someone came up to her at the time and gave a description of what had occurred. Mr Middleton also raised the possibility of Mr Bailey being the driver of the Mini which was proceeding alongside the plaintiff. Whatever the truth of the situation may be, Mr Bailey died on 3 December 1994. In other words, he died within the limitation period. Had the plaintiff commenced proceedings in 1995 or before 13 July 1996, the proceedings would have been commenced within time and Mr Bailey would have already died. Proceedings would have been issued quite validly, but Mr Bailey would not then have been available to give evidence or to provide a statement. Apart from the fact that, as submitted by Mr Adams, the evidence of Mr Bailey may have favoured the plaintiff, rather than Ms Madden, and again speculation is involved, it seems to me that a potential witness dying within the limitation period is a matter of little prejudice, if of any prejudice at all. It is to be remembered that both the TAC and the VWA were notified of this accident within a short time of it occurring. I appreciate that the system, as then operating, may not have necessitated the TAC, or the VWA, attempting to interview Mr Bailey. The fact remains that the TAC was alerted to the accident; that apparently no interview with Mr Bailey was conducted; that he died within the limitation period; and that, had the plaintiff initiated legal proceedings after the death of Mr Bailey in December 1994 and before the expiration of the limitation period in July 1996, the proceedings would have been validly on foot and without the TAC then having the opportunity to interview Mr Bailey or organise for him to give evidence. As an example of alleged prejudice, I regard this as being insignificant.
112 As regards any prejudice concerning the driver of the other vehicle, Ms Madden is now 85 years of age and I take note of that. However, there is nothing before me which would indicate that her health and memory are in any way impaired. There is no affidavit sworn by her. There is no medical material. It is apparent that Mr Fulton has been in contact with her – see paragraph 16 of his affidavit of 21 December 2012. It is equally apparent that she was able to give to him some details, including those of a conversation with a witness. It is specifically stated in Mr Fulton’s affidavit that Ms Madden is prepared to give evidence. I also note paragraph 17 of the affidavit of the plaintiff’s solicitor, Ms Block, such affidavit being sworn on 22 March 2012. I might say that the fact that Ms Block has been in contact with Ms Madden is the subject of some criticism from Mr Middleton, but the fact remains that Ms Block has sworn that Ms Madden is still residing at the address given in the police report and that she recalled the circumstances of the accident “quite clearly”. Obviously, with the passage of time memories may dim, but there is nothing before me which would indicate that any particular prejudice has been caused by Ms Madden’s more advanced years.
113 Similarly, I am not persuaded that any specific prejudice of note has been caused by the death of the original treating surgeon, Mr Mander, he having died on 20 August 2011. Mr Mander provided a report, basically to the VWA, dated 19 July 1991. The report is available, and, indeed, is in the plaintiff’s Court Book. It deals with the surgery performed by Mr Mander. The second last paragraph is optimistic in terms of prognosis. It refers to the plaintiff, when seen in July 1991, as having an almost full range of knee movement, with no discomfort, no limp and referring to the fact that the plaintiff had been assessed as fit for all work other than extremes of crouching and climbing scaffolding. In other words, it is a report from a treating surgeon that expresses opinions that some might consider favourable to the TAC, opinions which can no longer be directly challenged. Further, it is evident from the TAC’s Court Book that the plaintiff has made available to it an extensive bundle of hospital and medical records dealing with what occurred in 1990 and 1991, and including a lesser amount of more recent origin. Importantly, it is to be remembered that the plaintiff essentially received no relevant medical treatment between 1991 and 2009. In other words, in the 18 years following the plaintiff last seeing Mr Mander, he worked, travelled and carried on with his life without the need for any form of specialist treatment for his knee, and virtually without the need for any treatment at all. There is no record of any intervening event and a serious injury certificate in relation to the consequences of the relevant transport accident has now been issued. In those circumstances, it seems to me to be difficult to identify specific prejudice of any moment caused to the TAC by the death of Mr Mander.
114 Much the same could be said of the inability to locate Mr Naylor. He saw the plaintiff essentially for the VWA for medico-legal purposes, reporting on 22 December 1990 and 20 August 1991. Viewed one way, his conclusion in the latter report does the TAC no harm. Indeed, Mr Naylor expressed the view that the plaintiff had regained excellent capacity for work; that he was obviously fit for a great deal of employment, with the restriction of low level work, persistent kneeling and climbing; that there was no impediment to the plaintiff’s ultimate full return to work and full recovery; that the likely duration of residual incapacity was about two to three months; and that “It should be emphasised that he is right now fit for a vast variety of employment …”. Many of the observations made above in respect of Mr Mander would seem to apply equally to Mr Naylor.
115 Some possible prejudice could be seen in relation to the destruction of police records, if that has in fact occurred. As stated, an Incident Report has been obtained. This gives a description of the accident, complete with a diagram. It contains such things as a description of the damaged vehicles and the names and addresses of the plaintiff and Ms Madden. The name and address of Mr Bailey is also recorded. Whether what is referred to by Mr Fulton as a “510 report” exists separately is speculative. There is nothing before me to indicate whether “510 reports” were completed in every case or whether the Incident Report which is in evidence is a synopsis of, or is drawn from, the “510 report”. If police information has been destroyed by the reason of the effluxion of time, the potential for some prejudice exists. Whether or not this is totally, partially or at all offset by the existence of the Incident Report is not clear. Further material as to the system that was employed and as to the origins and comparative extent of the contents of the Incident Report would have been useful. As matters stand, the state of the police records is a potential source of some prejudice of uncertain dimensions.
116 Reference has also been made to a Mini which had been proceeding parallel to the plaintiff. Whether or not this vehicle was being driven by Mr Bailey is unknown. Mr Bailey is the only witness referred to in the police Incident Report. This is another source of potential prejudice, but there are many unknowns in relation to it. If the driver was not Mr Bailey, whether such driver actually witnessed the accident is unknown. All that can be said is that Mr Bailey is the only witness recorded in the Incident Report.
117 In Mr Fulton’s affidavit, a ground of prejudice which is set out is the lack of investigations between 1990 and 2011. There is reference to the lost opportunities for surveillance, for the investigation of any intervening event, for interviewing employers of the plaintiff over the 20 year gap and the like. Again, on the face of it, there is some potential for prejudice in this regard. However, the particular facts of this case need to be borne in mind. The plaintiff has made no secret of the fact that he had been in employment or travelling and not receiving medical treatment for the knee between 1991 and 2009. As stated, I have no hesitation in accepting him as a truthful witness. There was then a deterioration in his condition sufficient to have him referred to Mr Khoury in 2009 and sufficient for him to undergo further knee surgery performed by Mr James in 2011. A serious injury certificate has since been issued. It is difficult to imagine that such a certificate would have been issued if the TAC was not satisfied that the level of consequences of the plaintiff’s injury satisfied the statutory requirements and that these consequences could be traced back to the relevant transport accident in 1990. It is also difficult to see what benefit would have been obtained from surveillance conducted over the intervening period in a situation where there is no argument but that the condition of the plaintiff’s knee did not prevent him from working in his chosen occupation and during which he was receiving no medical treatment. Similarly, the interviewing of various employers may have borne little fruit. The plaintiff adopted his affidavits as being true and correct. Whilst there are references in them to the plaintiff’s employment history and the deterioration in his condition, nowhere is it suggested that there was any intervening event, and I would refer again to the fact that the TAC had issued a serious injury certificate relating to the injury sustained in 1990. This is another matter where the potential for some specific prejudice exists, but the dimensions of it do not seem to be great. Of course, as stated, the potential for prejudice due to the lapse of time exists and is a factor of considerable weight.
(iii) Section 23A(3)(c)
118 Turning to s23A(3)(c), the TAC does not seem to have taken any particular 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 it. In other words, at no stage did the TAC alert the plaintiff to the fact that an action for common law damages might exist. Given the manner in which events unfolded, some of which were peculiar to the era when the accident occurred, this is perhaps not surprising. Certainly the TAC was notified as to the accident and a claim form was lodged with it, but, the accident having happened on a “protected” journey, the conduct of the claim insofar as it related to the payment of weekly benefits and medical expenses rested with the VWA. The TAC then effectively heard nothing more of the matter for many years. Mr Adams was somewhat critical of the TAC, also referring to the VWA as its agent. In the plaintiff’s written submissions, there is reference to the two authorities being, in essence, interlinked and it is argued that the plaintiff understandably relied upon the good offices of the statutory authorities to explain to him what his entitlements were or to advise him to seek independent legal advice. This did not occur. I am not totally persuaded by this argument. The TAC received one claim form and nothing more. As shall be discussed, the fact that it was not the TAC but the other statutory authority that looked after the plaintiff’s case and to which he ultimately turned in 2009 or later in fact assists the plaintiff’s position.
(iv) Section 23A(3)(d)
119 In relation to s23A(3)(d) (the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action), this does not seem to me to take matters further, particularly given the case law as to the meaning of the word “disability” and whether this means “legal disability”. I have already dealt with the words “on or after the date of the accrual of the cause of action”. This factor requires no further attention.
(v) Section 23A(3)(e)
120 This factor concerns the extent to which the plaintiff acted promptly and reasonably once he knew that the act of the proposed defendant which caused his injury might be capable of giving rise to an action for damages. I am satisfied that the plaintiff first knew that the circumstances of the accident might be capable of giving rise to an action for damages when he consulted Ms Block in 2011. It is not submitted that there was any undue delay after this occurred. I am not satisfied that any delay that may have occurred between 2009, when the plaintiff consulted Mr Khoury, and 2011 is of particular relevance or importance. The plaintiff remained unaware of his rights. He continued working until his knee collapsed in 2011.
(vi) Section 23A(3)(f)
121 This factor concerns 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. There is no evidence of his receiving any relevant advice prior to 2011. His parents looked after the original paperwork. His expenses were met. He worked on. The circumstances that then arose have been described above. This factor does not raise matters for consideration.
Other relevant factors
122 As stated, the list contained in s23A(3) is not exhaustive. I shall now deal with some other relevant factors.
(i) The impact of any decision upon the respective parties
123 As was said by Brooking J in Bell:
“The question posed by s 23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs (3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them … .”
Buchanan JA cited this extract from Bell, and agreed with it, in Tsiadis.
124 The TAC could fairly be described as a professional litigator. Its duties include the proper administration of the transport accident scheme, this in turn involving the payment of benefits and damages to those entitled to them pursuant to the provisions of the TA Act. It is also its task to ensure that such amounts are not paid to those who have no valid entitlement and to protect the public purse by defending claims and actions accordingly. This it does efficiently and it is fully entitled to resist the present application in its defence of the public purse.
125 The facts that the TAC is a professional litigator, a statutory authority, and that the impact of a finding against it will have no disastrous effect upon its financial health are by no means fatal to its successfully defending an application such as this. However, that it is a professional litigator would appear to be something which can be borne in mind – see the observations of Beach J in Van Gerven.
126 On the other hand, the plaintiff is a straightforward individual who has suffered a severe injury to his leg, one result of which is that he has been forced to give up his chosen occupation as a bricklayer. He seems to have been successful at this trade, which he carried out for many years. He is now reduced to working on a part-time or casual basis as a teacher of bricklaying. That is in addition to the pain and suffering consequences of injury which he has endured. Clearly, the impact upon him of an adverse finding would be substantial.
(ii)The nature of the litigation and the evidence that is available concerning the accident and its aftermath
127 As argued by Mr Adams, the proposed cause of action is comparatively simple. It is, in essence, a two vehicle intersectional collision taking place in a rural city. There is no suggestion that any third party is involved. There is no suggestion that the roads in question were other than well maintained. It is not put that there were road works, defective traffic lights or anything of that nature. As pointed out by Mr Adams, it does not involve matters such as complex medical or surgical negligence, complicated industrial accidents, questions of product or occupier’s liability, the suing of an uninsured private individual or the like. One could imagine that, with the passage of time, more substantial prejudice may have occurred in matters such as those.
128 However, this case involves a simple intersection or collision. The proposed defendant, Ms Madden, has standing behind her a professional litigator. The complexities seem to be minimal.
129 In relation to the available evidence, importantly both parties are available to come to court. There is no suggestion that either of them has an impaired recollection of what occurred, and, indeed, the contrary is apparently asserted by each of them. A map of the intersection is available. The Incident Report of the police is available. A view of the intersection, including possible debate about any alterations, can be conducted. Further, as shall soon be discussed, there is ample medical evidence available.
130 In short, this is not a situation such as that which was prevailing in Batistatos. In that decision of the High Court of Australia, there is reference to the judgment of Bryson JA in the Court of Appeal of New South Wales, from which decision the appeal had gone to the High Court. Bryson JA is quoted, by the majority and with apparent approval, as stating the following:
“To my mind the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct the trial into the question whether the plaintiff’s injuries were caused by negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information.”
131 Bryson JA also stated that no more than a formal enactment of the process of hearing and determining the plaintiff’s claim could take place and that it could not be expected that the process would be just.
132 In that case, the relevant accident had taken place some 29 years prior to the commencement of the proceedings. The plaintiff was mentally impaired, which meant that, according to the relevant legislation, the limitation period was 30 years. There was argument concerning abuse of process and delay, albeit within this extended limitation period. The accident occurred when the mentally impaired plaintiff was driving home from a party. The accident allegedly occurred on an unmarked and unposted bend in the road. The motor vehicle went off the road into a ditch and overturned, causing spinal injuries to the plaintiff. Due to the lapse of time, the defendants alleged that a fair trial was no longer possible. They pointed out that there was an inability to obtain any police records or investigations relating to the accident. There was an inability to locate hospital or medical records concerning the plaintiff’s treatment for some 15 years after the accident. There were no documents available relating to the design and construction of the street at the relevant time. There was difficulty in identifying or locating any person who had active involvement in road maintenance work, in and before the year of the accident, who could give evidence concerning its design and construction at that time. There was an inability to locate any record that could assist in proving that the insurer was on risk at the relevant time. Finally, the physical state of the road where the accident occurred had altered substantially due to a reconstruction of the street carried out approximately 20 years after the accident, which work eliminated the bend which the plaintiff alleged caused the accident. In this regard, the remaining evidence regarding street reconstruction did not bear upon such things as establishing the signage, vegetation, lighting or other relevant circumstances at the time of the accident.
133 The contrast between the available relevant evidence in Batistatos and that in the present case is marked. The reasoning behind the observations of Bryson JA is apparent. In the New South Wales Court of Appeal, it was also pointed by Giles JA that the plaintiff had not proffered a meaningful account of how he came to run off the road or an expert report identifying material deficiencies in the design, construction, maintenance or state of the roadway.
134 In Batistatos there were issues other than that of delay. For example, abuse of process and the merits of the plaintiff’s claim regardless of delay received attention. It was on the basis of matters such as these, and a consideration of whether the Court of Appeal had been wrong in principle in its findings in relation to delay in circumstances where the action had commenced within the extended limitation period of 30 years, that the majority of the High Court dismissed the appeal. The majority made no particular comment about the adequacy of the available evidence and the like. However, Callinan J, who, with Kirby J and Heydon J dissented, had some observations to make concerning delay and the litigation process. At paragraph 228 his Honour stated the following:
“In an adversarial system under the most ideal of circumstances so far as time limits are concerned, a court is often obliged to make decisions on incomplete facts. Parties are not bound to bring to the attention of the court facts which are detrimental to their cases. Sometimes, by reason of the absence, or sudden death of a witness or a witness' departure, or for any number of other reasons, key facts cannot be established. The courts have to do the best that they can on the material before them and, in doing so, may make allowances for the circumstances in which each of the parties finds himself or herself.”
135 His Honour also pointed out that applications are not trials and that “It is undesirable and inappropriate in my view that they be elevated to something in the nature of a full scale pre-trial trial”. He also referred to the consideration of whether there can be the holding of a fair trial because of the effluxion of time.
136 I have referred at some length to the decision of the High Court in Batistatos because it seems to me to provide a useful contrast to the situation in the present case. Of course, in Batistatos the majority of the High Court found against the appellant, even though his case had been brought, albeit narrowly, within the extended time limit. Thus, there were some differing considerations. Nevertheless, the outline of the factual basis is useful, contrasting, as it does, with the situation in the present case.
137 In summary, insofar as the complexities of the present case and the availability of evidence relating to the accident are concerned, it does not seem to me that we are even near the situation described by Bryson JA, namely that no useful evidence is available upon which to conduct a trial and that no further search or enquiry is in any way likely to locate any such evidence. I would repeat the summary of available evidence set out in paragraph 128.
(iii) Availability of medical evidence
138 As previously stated, I do not regard the death of Mr Mander or the inability to locate Mr Naylor as being greatly detrimental to the conduct of the TAC’s case. Their reports are available, and I have already commented upon the fact that their conclusions are not necessarily detrimental to the defendant. In addition, the various hospital and medical records from 1990 and 1991 are available. In more recent times, the TAC has had the plaintiff examined by Mr Peter Kudelka, orthopaedic surgeon, and Mr Robert Dickens, orthopaedic surgeon. Mr Kudelka has described the plaintiff’s current left leg condition as being the direct result of the fracture sustained in the transport accident, and has also expressed the opinion that the plaintiff will need to look into another form of employment. Mr Dickens has also expressed the view that the plaintiff’s current condition is still related to the original motor vehicle accident, that there had been no intervening events and that it is doubtful that the plaintiff is ever likely to be able to return to his original employment as a bricklayer. It is apparent that both Mr Kudelka and Mr Dickens were supplied with various enclosures to assist them in arriving at their conclusions. In short, the TAC has been able to arrange medico-legal examinations of the plaintiff by appropriate experts, forwarding to those experts enclosures thought to be relevant. Clearly, those medical experts have felt able to express conclusions, including that the plaintiff’s present condition results from the accident of 1990. Doubtless in the light of these, and of the medical material obtained on behalf of the plaintiff, the TAC decided to issue a serious injury certificate to the plaintiff. Given the above circumstances, it is difficult to see how the TAC can mount an argument of any real substance based upon disadvantage in relation to medical evidence.
Overall conclusion – the synthesising process
139 When all of the above is synthesised in accordance with the authorities, it seems to me that the plaintiff has discharged the burden of proof and that his application should succeed. To adopt and adapt the wording of Beach J in Van Gerven, I have synthesised all of the matters required to be taken into account by s23A of the Act, and, having had regard to the relevant circumstances of the case, I have formed the view that it is just and reasonable to extend the period of limitation. I would say, again, that I appreciate that a delay of some 22 years is very long, but the factual bases of the application, some of which are unusual, must be considered. After doing this, and with the assistance of the detailed submissions with which I was provided, I have reached the conclusion that the limitation period should be extended so as to embrace the date of issue of the relevant proceeding was issued. I have reached this conclusion over and above any misgivings that I might have concerning whether the proceeding was actually issued within time – that is, whether the cause of action did not accrue as at the date of the accident, but much more recently.
140 I shall hear the parties as to the orders that are required.
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