Rowlands v Transport Accident Commission
[2013] VCC 926
•8 August 2013
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION
Revised
Not Restricted
Suitable for PublicationDAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISIONCase No. CI-11-02740
JAMEZ ROWLANDS (formerly Michael James Rowlands) Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant ---
JUDGE:
HER HONOUR JUDGE MORRISH
WHERE HELD:
Melbourne
DATE OF HEARING:
25, 26, 29 and 31 July 2013
DATE OF JUDGMENT:
Summary Oral Reasons given 31 July 2013; Final Judgment delivered 8 August 2013
CASE MAY BE CITED AS:
Rowlands v Transport Accident Commission
MEDIUM NEUTRAL CITATION:
[2013] VCC 926
REASONS FOR JUDGMENT
Subject: TRANSPORT ACCIDENT
Catchwords: Accident compensation – limitation of actions – application for extension of time within which action may be brought – “serious injury” conceded – plaintiff unaware of serious injury consequences until after expiry – no specific prejudice to defendant identified – just and reasonable to extend time.
Legislation Cited: Transport Accident Act 1986, s93; Limitation of Actions Act 1958, s23A
Cases Cited: Edwards v Kennedy [2009] VSC 74; Millard v State of Victoria [2006] VSCA 29; Evans v Repco Transmission Co Pty Ltd [1975] VR 150; Cuthill v State Electricity Commission of Victoria [1981] VR 908; Clark v McGuinness [2005] VSCA 108; Myer Melbourne Ltd v Hammond [1984] VR 40; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Tavsanli v Phillip Morris (Australia) Ltd (Unreported, VSC, 18 September 1989); Repco Corp Ltd v Scardamaglia [1996] 1 VR 7; Wintle v Stevedoring Industry Finance Committee and Ors [2002] VSC 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114; Repco Corp Ltd v Scardamaglia [1996] 1 VR 7; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Jiang Hong Gui v Weston [2011] VSCA 265; Clarke v Freund [1999] NSWCA 197; Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416; Manley v Alexander (2005) 233 ALR 228; Wheare v Clark (1937) 56 CLR 715; Albert v Nominal Defendant [1999] NSWCA 73; Ellor v Selfridge & Co (1930) 46 TLR 236; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Bell v SPC Ltd [1989] VR 170; Lovejoy v Carp [1999] VSC 223; Koumorou v State of Victoria [1991] 2 VR 265; Horan v Melbourne College of Hair & Beauty Culture Pty Ltd (Unreported, VSCA, 2 June 1995); Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Van Gerven v AmacaPty Ltd [2012] VSC 131; Hayes v Transport Accident Commission [2009] VCC 943
Judgment: Leave granted to the plaintiff to extend time within which to issue common law proceedings.
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr C W R Harrison SC with
Mr L PaineVictorian Compensation Lawyers Pty Ltd For the Defendant Mr P A Scanlon QC with
Mr P V BourkeSolicitor to the Transport Accident Commission HER HONOUR:
Background
1 At approximately 6.30pm on 16 April 1997, the plaintiff was a pedestrian, standing on Power Street, Hawthorn, when he was struck by a car apparently driven by Mr Nick Lahanis (“the collision”). The plaintiff lost consciousness and came to in an ambulance. He has no recollection of how the collision occurred. In his sworn evidence before me, he stated that the last thing he remembers before the collision is standing on the white line, and the first thing after was the ambulance.
2 Mr Rowlands was seriously injured in the collision. At the close of the plaintiff’s case, the defendant quite properly conceded that the plaintiff has a “serious injury” as defined in s93(17) of the Transport Accident Act 1986 (“the Act”). Accordingly, I propose to grant leave to the plaintiff to commence common law proceedings for damages arising from the collision, but that is not the end of the matter.
3 The plaintiff’s claim became statute-barred on 15 April 2003. Initially he sought legal advice about issuing common law proceedings and was informed of the statutory time limit. He took no action to seek either a certificate or a grant of leave under s93(4)(d) within that period. In approximately October 2010, his current solicitors lodged documentation with the Transport Accident Commission (“the TAC”). He formally lodged an application to extend time on the first day of these proceedings.
4 The plaintiff now seeks leave, and I propose to give him leave, as indicated under s93(4) of the Act to issue common law proceedings for damages. He also applies under s23A of the Limitation of Actions Act 1958 (“the LAA”) to extend time to enable him to issue those proceedings.
5 The proceeding commenced before me on 25 July, 2013 and continued on 26 and 29 July 2013. Mr C Harrison SC appeared with Mr L Paine on behalf of the plaintiff. Mr P Scanlon QC appeared with Mr P Bourke on behalf of the defendant. At the completion of the evidence, on 29 July 2013, the matter was adjourned until 31 July 2013 to enable the parties to prepare written submissions. When the matter returned on 31 July 2013, the defendant made a further concession relevant to the s23A LAA application; namely, he conceded that the plaintiff has an arguable cause of action in negligence against the driver of the car that struck the plaintiff.
6 On 31 July 2013, at the request of the parties, I gave oral judgment in summary form. I had drafted these reasons but they were not in revised form. I found in favour of the plaintiff. I indicated that the full version of my reasons would be provided in due course. I now provide the full version of my reasons for judgment.
7 I should add that on 31 July 2013, I also directed that a transcript of my summary and oral reasons for judgment be transcribed, and when revised, released to the parties. The revised transcript of those oral reasons is attached as “Annexure A” to this judgment.
Overview of the Plaintiff’s case
8 A chronology summarising significant aspects of the plaintiff’s case was tendered as exhibit A. To that exhibit, I have added other facts relevant to the s23A LAA application.
Chronology
Date Event 18 July 1978 The plaintiff was born. At the date of hearing he was aged 35 years.
The plaintiff was educated to Year 9.
1996-1997 The plaintiff was employed as a baker.
16 April 1997 At approximately 6.30pm, the plaintiff was crossing Power Street, Hawthorn when he was struck by a car. He has no memory of the collision (other than referred to above). He was taken by ambulance to St Vincent’s Hospital.
An X-ray of his right tibia and fibula (exhibit L(a) – Plaintiff’s Court Book (“PCB”) 30) revealed comminuted fracture of the mid-shaft of the tibia with slight anterior and lateral displacement. No fibula fracture was identified.17 April 1997 Mr P Hamilton, orthopaedic registrar, undertook surgery (exhibit M - PCB 52).
A tibial nail was inserted to secure the fracture and 3 cross bolts were fixed, two distally and one proximally.
A vein was punctured in the course of the surgery. The leg was then elevated in a gutter splint.
20 April 1997 X-rays of tibia and fibula (exhibit L(b) - PCB 31). Alignment was assessed as “satisfactory”.
23 April 1997–
1 May 1997Admitted to Bethesda Hospital (exhibit P - PCB 55 – 56). Discharged on crutches.
Cross-examined about this exhibit, the plaintiff agreed that he must have provided the history recorded. The past history notes “He smokes 10 cigarettes per day and 2 grams of marijuana per week”. The plaintiff rejected the suggestion that he had used marijuana immediately prior to the collision or that he was in any way under the influence of marijuana at the time of the collision. There are no medical or toxicological records to rebut the plaintiff’s evidence.
The defendant did not refer to this in final submissions, and it is of little consequence in this application.
5 May 1997 Admitted to Bethesda Hospital after developing a fat embolus leading to respiratory difficulties (exhibit O - PCB 54).
8 May 1997 X-ray of right tibia and fibula (exhibit L(c) - PCB 32).
5 June 1997 X-ray of right tibia (exhibit L(d) - PCB 33). See further x-rays 30/06/1997, 11/08/1997, 09/09/1997, 06/11/1997, 15/01/1998, 26/02/1998 and 16/04 1998 (exhibits L(e) – L(k) - PCB 34 – 40) indicating slow union and bony callus formation.
29 September 1997 Re-admitted to St Vincent’s Hospital for removal of right tibial screw and nails (exhibits Q, R and S - PCB 57 – 60).
Early 1999 (approximately) Returned to work as a security guard, Box Hill Shopping Centre.
14 August 2000,
4 September 2000, 29 September 2000X-ray of right tibia (exhibits L(l) – L(n) - PCB 41 – 43).
20 October 2000 Re-admitted to St Vincent’s Hospital for removal of distal screws as they had been causing discomfort (Exhibits Q, R and S PCB 57 - 60)
29 April 2002 Letter to the plaintiff from his solicitors (exhibit F, JR4).
“I refer to my conference with you on 26 April 2002.
… You stopped halfway across and were then hit from behind by a car. You suffered severe damage to your right leg requiring surgery and you still have a metal rod inside your leg..
At the time of the accident you were a pastry chef, although you were not then working. You believe that due to problems in standing you would not be able to work as a pastry chef now. You have performed some work as a security person around clubs and pubs but do need special consideration from your employer to allow you to take breaks regularly.
…
5 Common Law Rights
…A ‘serious injury’ is defined as:
1 an assessment of permanent impairment of 3-30% or more (see ‘Impairment Benefits’), or
2 a serious long term impairment of a body function, or
3 a severe long term mental or behavioural disturbance or disorder, or
4 loss of a foetus
Based on your instructions to date, I advise that you may be able to establish negligence against the other driver. However, before you are able to bring a claim for damages, you must firstly satisfy the TAC or a Court that you have suffered a ‘serious injury’ or have a permanent whole body impairment of 30% or more.
Please note that for injuries occurring in the State of Victoria, you must bring the claim within six years of the date of the injury occurring, after which time your rights expire. In limited circumstances, the Court may allow proceedings to be commenced outside the six-year period.
… .’
15 July 2002 The plaintiff’s former solicitors write to the TAC (exhibit F – JR5).
24 October 2002 Report of Mr A Rollo, surgeon (exhibit JR7 to the plaintiff’s affidavit, exhibit F, PCB 80 – 85):
· The plaintiff has had an unstable fractured mid-shaft of the right tibia nailed for fixation.
· Healing had been delayed, but final result was excellent.
· The patient’s prognosis is excellent, and he is capable of performing any employment he desires to take up.
· It should not alter his lifestyle.
· The minor aches and pains from which he suffers with all resolve (PCB 82/85).
20 November 2002 The plaintiff’s former solicitors write to the TAC (exhibit F, JR7).
20 November 2002 Letter to the plaintiff from his former solicitors (exhibit F, JR8).
“We have now received a report from Mr Alex Rollo who is of the opinion that your injury has stabilised and that ‘there is no major incapacity, and it is most unlikely that he will develop any future incapacity.’ Mr Rollo considers that you are capable of performing any employment you wish to take up.
Mr Rollo is further of the opinion that under the Guides used by TAC you would not score at all.
We have now requested TAC to make an assessment of your level of impairment. It is likely that they will determine that you have a NIL impairment which is in accordance with Mr Rollo’s opinion.
We remind you that it is possible to claim damages at common law if:
1. Another person is at fault in causing your injury.
2. You have suffered a serious injury.
It is our view that you would find it difficult to prove that somebody else had caused your injury as it appears that as a pedestrian you failed to take proper care for your own safety. It might be possible to show that the vehicle that entered from a side street and caused you to step backwards carried some measure of blame, but given your own difficulties in remembering what occurred, this would be very difficult However, if you wanted to pursue it further you would need to speak to the independent witness, Ms Jennifer Beasy, who at the time of the accident was located at … Street, Hawthorn.
In any event, we do not consider that you have suffered a serious injury, based on the opinion of Mr Rollo.
The work we have done so far has been performed on the basis of ‘no win no fee’, but we would not be prepared to take the matter any further without being paid for work as we proceeded.
Please note that if you do decide to claim damages at common law against our advice, Court proceedings must be issued before six years has expired from the date of the accident, in other words by 14 March 2003.”
18 December 2002 Letter from the TAC to the plaintiff (exhibit F, JR9).
April 2003 Commenced work as an apprentice baker. Subsequently completed apprenticeship 29 September 2005 – Certificate III in Food Processing 2007. Applied for an ABN (intended to run family business).
10 April 2003 Letter to the plaintiff from his former solicitors (exhibit F, JR10).
“The accident was on 16 April 1997 and you therefore must make your application by 15 April 2003. This is now only a few days away.
However, we repeat our advice which is that we do not consider you would succeed and that you would need to pay us at least $1,500,00 to make the application on your behalf.”
15 April 2003 Statutory time limit to issue common law proceedings expires
Date Event 11 June 2008 Attended Dr Wijeyesekera, General Practitioner (exhibit T - PCB 61).
History:
· Gets throbbing pain if he walks for some distances
· Wanted to be assessed with a view to taking out rod.
No current medications are recorded. Note, the plaintiff’s evidence about his medication at Transcript 50 and the restrictions imposed as a consequence. See also exhibit H – list of the plaintiff’s current medications.
27 October 2008 Bone scan at St Vincent’s Hospital (exhibit L(o) - PCB 44 - 45). Old fracture indicating ongoing abnormally increased osteoblastic activity. Some movement of nail.
The exhibit concludes:
“Increased blood pool and osteoblastic activity associated with a 12 year old fracture indicates ongoing abnormally increased osteoblastic activity suggestive for further trauma, infection or stress from movement due to mal-union. Increased uptake at either end of the nail suggests some movement. Exclusion of focal chronic osteomyelitis would be prudent and a white cell scan can be performed if required.”
10 November 2008 Report of Mr Dunin, orthopaedic surgeon (exhibit U - PCB 62):
· complaint of pain at site of intramedullary nail for last couple of years
· Concerned he may have low-grade infection
· Recommended nail be removed.
December 2008 The plaintiff ceased work as a baker.
5 December 2008 Attended Dr S Siapantis, General Practitioner (Exhibit DD - PCB 77). Complained of right lower leg pain of previous 2 months.
The report, dated 19 July 2012 states:
“[The plaintiff has attended the doctor’s clinic] for general medical attention since 16 April 2007.
He first complained of pain in his right lower leg … on 11 June 2008.
On 5 December 2008 he … stated that over the preceding 2 months he had noticed increased pain in his right lower leg. He had stated that he had suffered a fracture of his right tibia as a pedestrian when he was struck by a car. The pain had been increasing and he requested a certificate for Centrelink … as he was unable to continue as a baker.
Over the ensuing 4 years he has … requested and [been referred] for further management of his painful leg.
… .
Subsequent to these referrals Mr Rowlands has continued to complain of persistent right lower leg pain. He was referred to Frankston Pain Management Clinic.
He was seen by Dr Mudaliar of Frankston Pain Management who stated that Mr Rowlands may have Complex Regional Pain Syndrome. He advised a course of oxycontin 20-40mg twice daily as well as other simple medications such as nortriptyline or Lyrica. He has been commenced on Oxycontin and nortriptyline but these have not helped his level of pain to any significant degree. He is still awaiting further appointment for management and has stated that he is awaiting approval from TAC for this management. He has required Endone in-between oxycontin doses when he has been required to stand for any length of time as he has stated the pain in his leg becomes unbearable.”
22 January 2009 Plaintiff consults his current solicitor (exhibit F, paragraph 25 – PCB 161)
27 March 2009 MRI scan of right leg (exhibit L(p) - PCB 46).
Conclusion:
“Healed fracture status post-intramedullary rod of the mid tibial shaft, with no demonstrable complication or cause to account for the patient’s presenting complaint or pathologic process to account for the increased scintigraphic uptake as noted on the previously performed bone scan …”.
8 April 2009 CT arthrogram of right tibia (exhibit L(s) - PCB 49).
Conclusion:
“Minimal intercondylar posterior weightbearing medial femoral condyle partial thickness chondral wear.”
22 May 2009 Mr John Griffiths, orthopaedic surgeon, undertook surgery to remove the intramedullary nail and a biopsy at the fracture site which was locally tender. The rod could only be removed a short distance and it became jammed. The extraction device broke. The rod could not be removed. It was able to be tapped back into position (exhibit V and W - PCB 63 – 64).
In exhibit W, Mr Griffiths noted:
“[T]he only other way of removing the rod would be to split the tibia from top to bottom which was not considered to be a good idea.
The end result of this is that the rod is still in situ but I don’t believe that this is causing any major problem. Many patients have rods in their tibia without any chronic pain.
The ongoing problem with Jamez at present is a chronic regional pain syndrome. … .”
14 September 2009 Mr A McQueen, orthopaedic surgeon, reported to Dr Siapantis (exhibit Y - PCB 68). The plaintiff complained of pain at the fracture site at the junction of the middle and lower two thirds of the tibia and some residual discomfort in his right knee.
Examination of the knee revealed fractures of a lateral meniscal tear. Examination of the fracture site revealed generalised tenderness.
Mr McQueen recommended x-ray, CT arthrogram and bone scan.
15 September 2009 X-ray and bone scan of right tibia (Exhibit L(r) - PCB 48)
Conclusion:
“Mild inflammatory change probably at the proximal aspect at the site of the tip of the K-rod.”
12 October 2009 CT scan of the right knee arthrogram (PCB 49):
· no medial meniscus tear
· partial thickness chondral wear.
9 December 2009 Mr A McQueen undertook an arthroscopy (PCB 69-70).
· Arthroscopy confirmed Grade 2 chondral changes of medial femoral condyle, inflamed fat pad and anteromedial plica
· plica was excised
· fat pad trimmed
· chondroplasty performed
· excess bone removed
· extensive release of anterolateral compartment
· subsequent to such surgery the plaintiff continued to attend Dr Siapantis complaining of persistent right lower leg pain.
Subsequently referred to Frankston Pain Management Clinic.
24 September 2010 Approx Plaintiff instructs his solicitors to apply to TAC for serious injury certificate (exhibit F, paragraph 29 & exhibit JR12 to exhibit F).
Current Position The plaintiff’s affidavit dated 3 September 2012 (exhibit D, PCB 7-18):
(a) Has constant, though varied, right lower leg and knee pain. Has disfigurement of right lower leg. Is conscious and depressed. Right leg feels significantly weak. Pain is worse in cold weather and is aggravated by walking;
(b) Takes Oxycontin, Endone and Panadeine Forte. Also takes Nortriptyline for depression;
(c) Receives disability pension;
(d) Activity aggravates right lower leg pain;
(e) Adverse sleep;
(f) Unable to ride motorcycle because of pain;
(g) Occasionally uses walking stick;
(h) Assisted in housework.
25 March 2011
22 June 2011Mr Brearley, orthopaedic surgeon (exhibits FF(1) – (5), PCB 86-96).
Opinion:
· Sustained fracture of mid shaft of right tibia with subsequent internal fixation
· Slow union occurred
· Ten years or so later developed pain and swelling over fracture site
· Arthroscopy demonstrated some minimal arthritic change
· Had some muscle herniation through fascia of the leg. This was all due to motor vehicle accident
· Unfit for work as a baker or manual labourer
· Prognosis poor
· His opinion is based upon physical injury
· Has some secondary psychological condition.
4 April 2011
22 August 2011Dr A Kaplan, psychiatrist (exhibit 2, PCB 97-108).
· Became depressed in 2009 because of failed surgery
· Unlikely he would benefit from psychiatric treatment.
(Note that the claim under sub-paragraph (c) was not pressed).
31 May 2012 CT scan of the right knee (exhibit L(t), PCB 50).
· Minor sub-cortical change
· Patellar tendon thickened
· Minimal osteophytic lipping of the tibial spine.
3 May 2012 Dr S Mudaliar, specialist in rehabilitation medicine (exhibit AA, PCB 71).
· First seen on 1 May 2012
· He had extreme hypersensitivity at fracture site and around the scar
· Sensation in the leg appeared to be patchy.
Opinion:
· Likely to have a Complex Regional Pain Syndrome
· Prescribed Nortriptyline and Oxycontin
· Also physiotherapy, occupational therapy and hydrotherapy.
31 May 2012 CT scan of the right leg (exhibit L(u), PCB 51).
· Tibial intramedullary rod in situ.
9 I note that in view of the defendant’s concession that the plaintiff suffered a “serious injury”, I accept the medical evidence as summarised above concerning his condition.
The Plaintiff’s evidence
10 The plaintiff gave sworn evidence before me. Four affidavits (exhibits C, D, E and F) sworn by the plaintiff were adopted as his evidence-in-chief.
11 The following exhibits were tendered on behalf of the plaintiff:
Exhibit Description A Plaintiff’s chronology
B Plaintiff’s submission on legal principles applicable to s23A application
C Plaintiff’s affidavit dated 24 September 2010 (PCB) 1-6)
D Plaintiff’s affidavit dated 3 September 2012 (PCB 7-18)
E Plaintiff’s affidavit dated 10 October 2012 (PCB 18.1 – 18.3)
F Plaintiff’s affidavit in support of s23A application dated 6 May 2011 (PCB 158-196)
G X-rays taken of the plaintiff’s right leg
H List of medications for the plaintiff for the last 12 months
J Affidavit of the plaintiff’s mother, Eliana Rita Holt, dated 29 August 2012 (PCB 19-24)
K Affidavit of Adam Stuart Parncutt dated 31 August 2012 (PCB 25-27)
L(a) X-ray right tibia and fibula dated 16 April 1997 (PCB 30)
L(b) X-ray right tibia and fibula dated 20 April 1997 (PCB 31)
L(c) X-ray right tibia and fibula dated 8 May 1997 (PCB 32)
L(d) X-ray right tibia dated 5 June 1997 (PCB 33)
L(e) X-ray right tibia and fibula dated 30 June 1997 (PCB 34)
L(f) X-ray right tibia and fibula dated 11 August 1997 (PCB 35)
L(g) X-ray right tibia and fibula dated 8 September 1997 (PCB 36)
L(h) X-ray right tibia and fibula dated 6 November 1997 (PCB 37)
L(i) X-ray right tibia and fibula dated 15 January 1998 (PCB 38)
L(j) X-ray right tibia, fibula and right knee dated 26 February 1998 (PCB 39)
L(k) X-ray right tibia and fibula dated 16 April 1998 (PCB 40)
L(l) X-ray right tibia dated 14 August 2000 (PCB 41)
L(m) X-ray right tibia and fibula dated 4 September 1998 (PCB 42)
L(n) CT scan of the right tibia dated 29 September 2008 (PCB 43)
L(o) Bone scan dated 27 October 2008 (PCB 44-45)
L(p) MRI scan of the right leg dated 27 March 2009 (PCB 46)
L(q) X-ray right tibia and CT scan right tibia and fibula dated 9 April 2009 (PCB 47)
L(r) X-ray and bone scan right tibia dated 15 September 2009 (PCB 48)
L(s) CT scan right knee arthrogram dated 12 October 2009 (PCB 49)
L(t) CT scan right knee dated 21 May 2012 (PCB 50)
L(u) CT scan right leg dated 21 May 2012 (PCB 51)
M Operation report of Mr Peter Hamilton dated 17 April 2007 (PCB 52)
N Operation record sheet dated 17 April 1997 (PCB 53)
O Report of Ms Aleka Hill dated 5 May 1997 (PCB 54)
P Bethesda Hospital Inpatient Discharge Summary dated August 1997 (PCB 55-56)
Q Operation record sheet dated 29 September 1997 (PCB 57)
R Operation record sheet dated 20 October 2000 (PCB 58)
S Report of Risk Management, St Vincent’s Hospital dated 25 August 2002 (PCB 59-60)
T Report of Mr Grandville Wijeyesekera dated 11 June 2008 (PCB 61)
U Report of Mr Tony Dunin dated 10 November 2008 (PCB 62)
V Operation report of Mr John Griffiths dated 22 May 2009 (PCB 63)
W Report of John Griffiths dated 2 July 2009 (PCB 64)
X Report of Mr John Griffiths dated 20 August 2012 (PCB 65-67)
Y Correspondence of Mr Andrew McQueen to Dr S Siapantis dated 14 September 2009 (PCB 68)
Z Operation report Mr Andrew McQueen dated 9 December 2009 (PCB 69-70)
AA Report of Dr Selva Mudaliar dated 2 May 2012 (PCB 71)
BB Report of Mr Andrew McQueen dated 28 June 2012 (PCB 72)
CC Report of Mr Andrew McQueen dated 6 September 2012 (PCB 73-76)
DD Report of Dr S Siapantis dated 19 July 2012 (PCB 77-79)
EE Report of Mr John Griffiths dated 3 October 2012 (PCB 79.1)
FF(1) Report of Mr Kenneth Brearley dated 25 March 2011 (PCB 86-91)
FF(2) Report of Mr Kenneth Brearley dated 25 March 2011 (PCB 92-94)
FF(3) Report of Mr Kenneth Brearley dated 22 June 2011 (PCB 95-96)
FF(4) Report of Mr Kenneth Brearley dated 18 May 2012 (PCB 96.1-96.4)
FF(5) Report of Mr Kenneth Brearley dated 20 September 2012 (PCB 96.5)
GG Outline of plaintiff’s final written submissions dated 31 July 2013
Evidence in support of serious injury application
12 As I have indicated, the evidence tendered, together with appropriate concession made by the defendant, justifies the granting of leave, accepting, as I do, that the plaintiff has established on the balance of probabilities that he has suffered a “serious injury” as defined.
Evidence in support of the application to extend time under s23A of the Limitation of Actions Act
13 The plaintiff relies on the above material to establish that he did not become aware of his serious injury consequences until well after the statutory period had expired. Initially, he made a good recovery following the surgery. He was able to return to full-time employment, his quality of life was largely unaffected and he believed he would make a full recovery from his injuries. It was only after it became clear to him that there were ongoing problems, escalating pain and, finally, when he realised that he could probably never engage in meaningful employment again, that he decided to bring proceedings.
14 A number of relevant exhibits are attached to the plaintiff’s affidavit, exhibit F. I have referred to some of them in the chronology above. In particular, letters from his former solicitors advising him about the statutory time limit and of their opinion that he had little prospect of succeeding in bringing such claim. The defendant relies on these letters to show that the plaintiff was aware of the statutory time frame, yet did nothing to press his statutory rights.
The Defendant’s case
15 The defendant called no evidence. The defendant’s outline of written submissions dated 30 July 2013 was tendered as exhibit 1.
16 The defendant tendered the following further exhibits:
Exhibit 2: Report of Dr Albert Kaplan, psychiatrist, dated 4 April 2011 (PCB 97-106)
Exhibit 3: Report of Dr Peter A Blombery dated 13 August 2012 (PCB 136-141).
Application to extend time under s23A of the Limitation of Actions Act
17 The parties agree that the applicable legal principles are accurately set out in their respective written submissions regarding s23A of the LAA. Those submissions also set out their arguments, cross-referenced to the evidence (exhibit B):
“PLAINTIFF’S SUBMISSION ON LEGAL PRINCIPLES APPLICABLE TO S.23A APPLICATION
Chronology
1The incident occurred on 16 April 1997. As it occurred prior to the amendment of s.5 of the Limitation of Actions Act (Vic) 1958 (‘Act’), effected by Act 52 of 2002, operative 5 November 2002, the applicable limitation period was 6 years. Hence that limitation period expired on 15 April 2003.
Legal Principles
2By operation of s.27B (c) of the Act, Part 11A, including the regime in Division 3 of that Part for extensions of time, does not apply to ‘actions for damages to which Part 6 or Part 10 of the Transport Accident Act 1986 applies.’ An application under s.93(4) (d) of that Act, as here, for leave to proceed for damages is within Part 6. Accordingly s.23A of the Act applies to any application for an extension of time. However, because of the similarity of the legislation between s.23A and s.27L, cases dealing with s.27L are instructive in assessing an application under s.23A.
3The ultimate question is whether it is ‘just and reasonable’[1] to extend the limitation period having regard to ‘all the circumstances of the case’ including but not limited to, the matters set out in s.23A(3)(a)-(f). The Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all: see the decision of Kaye J considering s.27K in Edwards v Kennedy [2009] VSC 74, at [24]; Millard v State of Victoria [2006] VSC [skil VSCA] 29 (considering s.23A).
4The Plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.
5It is clear that this application is not to be treated as if it was the trial of an action. It would be wrong to analyse the material adduced on the application on the footing that the specified matters could only appear to the Court if the material persuaded the Court, on the balance of probabilities, that the plaintiff had proved those matters. It is enough if it appears to the Court that ‘evidence exists to support the plaintiff’s claim’ or, ‘that there is evidence to establish the cause of action’;[2] or again ‘whether evidence is available which gives the applicant a reasonable prospect of … establishing the cause of action’: see Wintle v Steverdoring [skil Stevedoring] Industry Finance Committee and Ors [2002] VSC 265 (Ashley J) at [33].
6In Clarke [skil Clark] v McGuin[n]ess [2005] VSCA 108, the critical issue was the operation of prejudice and how that factor (as reflected in s.23A (3)(b) is to be balanced against the other considerations enumerated in s.23A that may predispose a court to support the plaintiff’s claim for an extension of time. In other words, is any prejudice to the defendant so significant as to outweigh any legitimate claims by the plaintiff and make their imposition unjust and unreasonable?
7Mere delay, when it is inordinate, may be taken as evidence of prejudice to a defendant; that is, absent any identification of specific prejudice.[3] Wintle v Stevedoring Industry Finance Committee and Ors [2002] VSC 265 (Ashley J) at [60]; see also McHugh, J. in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
8Note that the Victorian Court of Appeal in Tsiadis v Patterson (2001) 4 VR 114 at 122-123 per Buchanan JA, has to an extent qualified the principles enunciated in Brisbane South when considering applications under s.23A/s.27K of the Limitation of Actions Act: see Warren J in Clark v McGuin[n]ess [2005] VSCA 108 at [37] to [42].
9Prejudice to a defendant, whether it can be presumed simply by reason of the elapse of a limitation period, whether it may be taken to exist by reason of inordinate delay, or whether it is the subject of specific material, is not the only matter which is to be taken into account in considering the exercise of discretion under s.23A. The question set up by s.23A (2) is whether it is just and reasonable to extend time; and that involves, by s.23A (3), the court having regard to all the circumstances of the case: see eg Tsiadis, Clark v McGuin[n]ess and Edwards v Kennedy.
10The relevant period of delay is calculated from the date the cause of action accrued: Repco [Corp Ltd] v Scardamaglio [skil Scardamaglia] (1996) 1 VR 7, at 11 per Smith.
11The plaintiff is not responsible for (any) delay of solicitors: Millard v State of Victoria [2006] VSC 29 at [38] and [39] – citing Starke J in Anisiena v H Crane Haulage Pty Ltd[4] with approval.”
[1]Section 23A(2)
[2]Cuthill at 913 per Starke J, and 915 Brooking J; see also Evans v Repco Transmission Co Pty Ltd
[185][skil [1975] VR 150 at 152, cited with approval in Cuthill v State Electricity Commission of Victoria [1981] VR 908 at 910-911[3]Myer Melbourne Ltd v Hammond [1984] VR 40 at 49, Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152 at 157, Tavsanli v Phillip Morris (Australia) Ltd ([VSC], Young CJ, 18 September 1989, unreported at (11), Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 13-14
[4][1974] VR 670, 674
18 The plaintiff’s further submissions regarding s23A of the LAA are set out in exhibit GG as follows:
“PLAINTIFF’S FURTHER SUBMISSIONS IN SUPPORT OF S.23A
APPLICATIONEvidence to Establish the Plaintiff’s Cause of Action
1 The Plaintiff’s evidence [at T.28] was as follows:
‘Do you have any recollection of the circumstances of the accident? - - - Minimal recollection.
Can you tell Her Honour whether or not you were walking across the road?- - - I was actually standing in the middle of the road on the white line. So I was crossing the road, yes.
I suggest to you that you moved into the side of the other car by moving forward? - - - Definitely not. It hit me from behind, so that’s impossible - - -
I’m sorry? - - - it hit me from behind, so it’s impossible that I could’ve walked forward into a car.
I suggest to you that – he hit you with the front of the car? When you say he hit you from behind, what do you mean? - - - Yeah. The front right. I was standing on the middle white line and he was approaching from this way, so my eyes weren’t even on him, they were forward, and he’s hit me from that direction.
Have you told other people and have you made statements to the effect that you have no recollection at all of the accident? - - - I have no recollection of the actual incident but I remember standing on the white line and then I remember being in the ambulance.
Did you see the car? - - - No.’
2 Further [at T.29] the Plaintiff gave the following evidence:
‘No. Where had you been on this night? What time was the accident? - - - I think it was between 6 and 7 o’clock in the evening.
Yes. Was it dark? - - - I believe so yes.’
3Thus the Plaintiff’s evidence is that the accident occurred between 6 to 7 pm, it was dark, he was standing in the middle of the road when he was struck from behind by a vehicle which he did not see.
4It is clear that this application is not to be treated as if it was the trial of an action. It would be wrong to analyse the material adduced on the application on the footing that the specified matters could only appear to the Court if the material persuaded the Court, on the balance of probabilities, that the plaintiff had proved those matters. It is enough if it appears to the Court that ‘evidence exists to support the plaintiff’s claim’ or, ‘that there is evidence to establish the cause of action’;2 or again ‘whether evidence is available which gives the applicant a reasonable prospect of…establishing the cause of action’.: see Wintle v Steverdoring [skil Stevedoring] Industry Finance Committee and Ors [2002] VSC 265 (Ashley J) at [33].
2Cuthill at 913 per Starke J., and 915 Brooking J; see also Evans v Repco Transmission Co Pty Ltd [
185] [skil [1975] VR 150 at 152, cited with approval in Cuthill v State Electricity Commission of Victoria [1981] VR 908 at 910-9115In Millard v State of Victoria [2006] VSCA 29 Mandie JA, at [30] recited with apparent approval:
‘The Judge (below) accepted that, unless the case otherwise appeared to be hopeless, evidence of a cause of action was not a necessary pre-requisite to the granting of an application to extend time.’
6In Jiang Hong Gui v Weston [2011] VSCA 265, the Court of Appeal in a similar situation involving a pedestrian struck by a motor vehicle, identified authority relevant to a motorist’s duty of care to pedestrians.
‘27 The standard of care imposed on drivers of cars is a high one.[5] In Clarke, Beazley JA referred to the decision of Mahoney P in Stocks and said:
[5]Clarke v Freund [1999] NSWCA 197 (‘Clarke’); Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (‘Stocks’)
‘This Court has consistently held that the standard of care for drivers of motor vehicles is high. The standard, of course, always remains that of the reasonable driver, but in this Court’s decision in Stocks & McDonald Hamilton Co Pty Limited v Baldwin (1996) 24 MVR 416, the then President of the Court, Mahoney P, set out why the standard of care is a high one and why it must take into account the fact that there is a likelihood, for example, that pedestrians will suddenly come into the path of an oncoming vehicle.’[6]
[6]Clarke [1999] NSWCA 197, [14] (Beazley JA) (emphasis added)
28 In Clarke, a pedestrian hurried across the road to beat a traffic light which had changed to red and entered the path of the driver’s moving vehicle. The driver did not see the pedestrian as there was a line of cars next to him causing some obstruction. However, he did not slow down when approaching the traffic light. The Court of Appeal reversed the decision of the trial judge, who had found no negligence on the part of the driver. It held that the driver was responsible to the extent of one-third. Beazley JA (with whom Handley and Sheller JJA agreed) said this:
‘In my opinion the respondent was negligent in failing to slow down in that circumstance. He should have been aware of the possibility that a pedestrian might cross the road by passing through the stationary line of vehicles and then onto the part of the road with moving traffic.’[7]
[7]Ibid [12] Beazley JA)
29 In Manley v Alexander,[8] a decision of the High Court, the majority said:
[8](2005)
233[223] ALR 228 (‘Manley’)‘[12] But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.’[9]
[9]Ibid 23 p[12] (Gummow, Kirby and Hayne JJ)
30 In Manley, the injured plaintiff was intoxicated, dressed in dark clothing and lying on the road when he was struck by the defendant and seriously injured. The driver was momentarily distracted by a man standing on the side of the road and thinking that he would step into the road, veered to the centre of the road without reducing speed. When the driver re-focused on the road ahead, he saw an object on the road. He did not brake and struck the plaintiff. The Full Court of the Supreme Court of Western Australia held, reversing the trial judge who dismissed the plaintiff’s claim, that the driver had failed to exercise reasonable care and had been negligent to the extent of 30 percent. The High Court by majority agreed.’
7A reasonable person satisfying the standard of care expected of him is required to take account of the possibility of inadvertent and negligent conduct on the part of others, (Wheare v Clark (1937) 56 CLR 715 at 723). Notwithstanding that a driver may be driving at a speed and in a place that is lawful, if the driver is placed on notice by conduct that he saw or should have seen indicating that a pedestrian might act in such a way as to put that pedestrian in danger from the motorist, then the driver may be guilty of a breach of duty: Albert v Nominal Defendant [1999] NSWCA 73 (1999) 29 MVR 107 at [6].
8It is submitted that notwithstanding the Plaintiff’s limited recollection there is sufficient evidence to support this claim to the requisite standard, for the purposes of this application.
Res Ipsa Loquitur?
9In Ellor v Selfridge & Co (1930) 46 TLR 236 the plaintiffs were hit by a van which mounted the pavement. Strutton [skil Scrutton] LJ said:
‘… the fact that in the present case the van appeared on the pavement, where it had no business to be, and injured the plaintiffs on the pavement, and the further fact that the defendants offered no explanation why their van was there seemed to be more consistent with negligence than with the exercise of reasonable care.’
10The evidence here is that the Plaintiff denies having stepped into the path of the putative Defendant’s car. On the balance of probabilities, it is more consistent with negligence by the driver that a stationary pedestrian standing on the white lines in the middle of the road should be struck and injured, than with any other cause. Otherwise drivers could strike poles and any other stationary object placed by road making authorities in the middle of a road, without blame being attributable to the driver.
Statutory Regime
11 23A Personal Injuries
(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
The Plaintiff gave clear evidence explaining that he relied on the opinion of the surgeon Mr Rollo,2 in not pursuing a claim in 2002. Further he gave up work in and gave up work in 2008 for the purpose of undergoing surgery which he expected to generate a successful outcome, enabling him to return to full time work as a result of a full recovery.3
2JR-7 at PCB 181-183. Further TAC declined to even organise an impairment assessment, positing his likely disability would assess at less than 10 per cent, JR-9 at PCB 188
3T49.1-.5
As soon as he realised there may not be a successful outcome he consulted his solicitor on 25 January 2009.4 The plaintiff is not responsible for (any) delay of solicitors: Millard v State of Victoria [2006] VSC 29 at [38] and [39] – citing Starke J in Anisiena v H Crane Haulage Pty Ltd5 with approval.
4See his unchallenged affidavit evidence at PCB 161 para [25] January 2009
5[1974] VR 670, 674
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
In a circumstance in which it is conceded in open Court,6 that the Plaintiff had minimal or no medical treatment for his leg between 2002 to the end of 2008, it is difficult to see that any prejudice flows from an inability to assess the Plaintiff medically, during that time. Thus the Defendant’s prejudice is reduced to the assumed prejudice flowing from delay.
6T18.3, confirmed in the Plaintiff’s evidence at T42.10. See also his affidavit evidence at PCB 161, para [22]
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
This is not relevant to this proceeding.
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
It is apparent that the Plaintiff relied upon the opinion of Mr Rollo. It was only when his pain increased substantially towards the end of 2008 that he sought surgical attention, fully expecting a complete recovery after procedures.
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
It is submitted that the Plaintiff has at all times acted properly and promptly, consistent with the advice given to him by lawyers from time to time, as demonstrated by his affidavit and the exhibits thereto.7
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
The Plaintiff obtained initial advice from Mr Rollo which was at that time fatal to any claim. Once he became aware that the five surgical procedures, including that performed by Mr Griffiths on 22 May 2009 and the follow up proceedings by Mr Andrew McQueen, Orthopaedic Surgeon, the last of which occurred on 9 December 2009,8 his solicitors moved appropriately to pursue this application.”
7PCB 158 paras 12, 13, 17-19, 25-29
8PCB 69-70
19 The defendant’s written outline of submissions dated 30 July 2013 (Exhibit 1) is set out below. I have added my observations in footnotes marked “JM fn”, to distinguish between these observations and counsel’s footnotes.
“DEFENDANT’S SUBMISSIONS
Application
1By a summons filed on 25 July 2013 the plaintiff seeks an order (pursuant to s.23A of the Limitation of Actions Act 1958) extending, nunc pro tunc, the time in which he may commence the a (sic) common law proceeding with respect to a transport accident that occurred on 16 April 1997.
2 The plaintiff’s limitation period expired on 15 April 2003.
3The plaintiff has filed and served an affidavit in support of his application, being his affidavit of 6 May 2011. The defendant has served an affidavit of Antony Peter O’Brien sworn 3 September 2012.
Summary of submissions
4The plaintiff has failed to discharge the onus of establishing that it is just and reasonable to extend the period in which his proceeding was to be commenced.
5The plaintiff received legal advice from his then solicitors prior to the expiry of his limitation period. He understood the limitation period and appears to have discussed liability issues with his solicitors and received advice. The plaintiff appears to have attributed the loss of one job as a security guard to his injury and was concerned about his ability to work as a pastry chef while still within the limitation period. The plaintiff experienced increasing pain from about 2006 and ultimately ceased work as a baker in or about December 2008, but did not pursue this claim for a further period of nearly two years.
6Further, prejudice is to be inferred from the passage of time. The plaintiff’s solicitors advised him during the limitation period that he had a difficult case on liability. The plaintiff has little recollection of the accident. The only known independent witness died during the limitation period and it appears that the plaintiff’s case must rely on the prospective defendant’s recollection of the accident on 16 April 1997.
7In these circumstances, the plaintiff has not established that it is just and reasonable to extend time, and his application should be refused.
Background
8At approximately 6.30pm on 16 April 1997, the plaintiff was injured in a transport accident on Power Street, Hawthorn. The plaintiff was a pedestrian crossing the roadway when involved in a collision with a vehicle driven by the prospective defendant.
9The plaintiff’s principal injury from the accident was a right midshaft tibial fracture, treated at St Vincent’s Hospital by insertion of tibial nails. These were removed at St Vincent’s on 29 September 1997. The plaintiff is reported to have remained non-weight bearing on crutches for approximately 11 months post-accident. After experiencing some discomfort, the plaintiff was re-admitted to St Vincent’s on 20 October 2000 for the removal of distal cross bolts (Plaintiff CB p.60).
Legal advice received by the plaintiff within the limitation period
10The plaintiff says that he first consulted his previous solicitors, Arnold Dallas McPherson, in relation to the transport accident on 26 April 2002 (Plaintiff CB p.159). On 29 April 2002 Arnold Dallas McPherson wrote to the plaintiff following a conference on 26 April 2002 (Ex ‘JR4’ to the plaintiff’s affidavit sworn 6 May 2011, Plaintiff CB p. 172). In part, the letter states the following:
‘I refer to my conference with you on 26 April 2002.
I confirm your instructions to me are that you were involved in a transport accident on the above date. The circumstances of the accident were that you were crossing Power Street in Hawthorn at about 6.00p.m. or 7.00p.m. You stopped halfway across and were then hit from behind by a car. You suffered severe damage to your right leg requiring surgery and you still have a metal rod inside your leg.
At the time of the accident you were a pastry chef, although you were not then working. You believe that due to problems in standing you would not be able to work as a pastry chef now. You have performed some work as a security person around clubs and pubs but do need special consideration from your employer to allow you to take breaks regularly.’
11 The letter goes on to state the following:
‘Based on your instructions to date, I advise that you may be able to establish negligence against the other driver. However, before you are able to bring a claim for damages, you must first satisfy the TAC or a Court that you have suffered a ‘serious injury’ or have a permanent whole body impairment of 30% or more.
Please note that for injuries occurring in the State of Victoria, you must bring the claim within six years of the date of the injury occurring, after which time your rights expire. In limited circumstances, the Court may allow proceedings to be commenced outside the six-year period.’
12On or about 24 October 2002, Mr Alex Rollo, Orthopaedic Surgeon provided a medical report in relation to the plaintiff to Arnold Dallas McPherson (Ex ‘JR7’ to the plaintiff’s affidavit sworn 6 May 2011 at Plaintiff CB p. 181).
13Mr Rollo obtained a history from the plaintiff in relation to his post-accident employment as follows:
‘He returned to work about two years after the accident, having obtained work as a security officer. This was found to be difficult as he needed to sit down and rest for a short time at about two hourly intervals. One employer was unhappy with this, and he lost his job.’
14On 20 November 2002 Arnold Dallas McPherson wrote to the plaintiff providing further advice (Ex ‘JR8’ to the plaintiff’s affidavit sworn 6 May 2011 at Plaintiff CB p. 185). The letter states in part:
‘We have now received a report from Mr Alex Rollo who is of the opinion that your injury has stabilised and that ‘there is no major incapacity, and it is most unlikely that he will develop any future incapacity.’ Mr Rollo considers that you are capable of performing any employment you wish to take up’ … .
‘… It is our view that you would find it difficult to prove that somebody else had caused your injury as it appears that as a pedestrian you failed to take proper care for your own safety. It might be possible to show that the vehicle that entered from a side street and caused you to step backwards carried some measure of blame, but given your own difficulties in remembering what occurred, this would be very difficult. However, if you wanted to pursue it further you would need to speak to the independent witness, Ms Jennifer Beasy, who at the time of the accident was located at … . Hawthorn.
In any event, we do not consider that you have suffered a serious injury, based on the opinion of Mr Rollo.
The work we have done so far has been performed on the basis of “no win no fee”, but we would not be prepared to take the matter any further without being paid for work as we proceeded.
Please note that if you do decide to claim damages at common law against our advice, Court proceedings must be issued before six years has expired from the date of the accident, in other words by 14 March 2003 (sic).’
15On 10 April 2003 Arnold Dallas McPherson wrote a further letter to the plaintiff confirming its previous advice and reminding the plaintiff about the impending expiry of the limitation period (Ex ‘JR10’ to the plaintiff’s affidavit sworn 6 May 2011 at Plaintiff CB p.191).
16The plaintiff’s evidence in cross-examination was that he clearly understood the implications of the limitation period and the need to issue proceedings before April 2003 (Transcript 29 July 2013 p.39 line 24 – p.40 line 13).
17There is no evidence from the plaintiff that he sought out the driver, the independent witness, details of the other vehicle referred to in paragraph 14.
18There is no evidence from the plaintiff that he ever sought any further advice from Arnold Dallas McPherson after 2003 and nor is there any evidence from Arnold Dallas McPherson itself. [10]
[10]HH fn: I was asked to infer that had such evidence been called or tendered, it would not have assisted the plaintiff. I am not obliged to draw the inference. Even if I were to draw it, it would not alter my decision.
Relevant legislation
19Section 23A empowers a Court to grant an extension of time in which to issue proceedings in circumstances where ‘it decides that it is just and reasonable to do so’ (s.23A(2)).
20 Section 23A(3) provides:
‘In exercising the powers conferred on it by sub-section (2), a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing)
,the following:(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay
,there is or is likely to be prejudice to the defendant;(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant[,] to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.’
Sub-paragraphs (a), (b), (e) and (f) have particular importance in the present application.
21In Tsiadis v Patterson (2001) 4 VR 114, Buchanan JA (with whom Ormiston JA relevantly substantially agreed), said (at 123-4 – para [33]):
‘The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent [who was the plaintiff] bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
‘The question posed by s23A 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. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’
22In Edwards v Kennedy [2009] VSC 74 at [25] Kaye J stated:
‘In considering that question, it is important to bear in mind the purposes served by the limitation periods prescribed by s 5(1AA) and s 27D of the Act. In Brisbane South Regional Health Authority v Taylor, McHugh J identified four ‘broad rationales’ for the enactment of limitation periods. First, as time passes, relevant evidence may be lost. Secondly, it may be oppressive to a defendant to allow a proceeding to be brought against him long after the circumstances which gave rise to it have passed. Thirdly, people should be entitled to arrange their affairs, and utilise their resources, on the basis that claims can no longer be made against them. Fourthly, the public interest requires that disputes be settled and disposed of without undue delay.’
Onus
23The authorities are clear that the onus is on the plaintiff to satisfy the Court that it is just and reasonable in all the circumstances to extend time within which proceedings may be brought: see Bell v. SPC Limited [1989] VR 170; Lovejoy v. Carp [1999] VSC 223, at paragraph 56; Tsiadis v Patterson (2001) 4 VR 114 at 124 (para [33]).
Delay: The length and reasons for the delay, the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant might be capable of giving rise to an action for damages, and the steps taken by him to obtain legal advice and the nature of any such advice he may have received.
Length of the delay
24The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time: Koumorou v. State of Victoria [1991] 2 VR 265; Repco Corp Ltd (t/as Warren Brown Co) v Scardamaglia [1996] 1 VR 7; Horan v. Melbourne College of Hair and Beauty Culture Pty Ltd (unreported, 22 June 1995); Lord v. Australian Safeway Stores Pty Ltd [1996] 1 VR 614.
25The date of the plaintiff making application for an extension of time in this matter appears to be the date of his Affidavit in Support of a Section 23A application sworn 6 May 2011 (Ex. F).
26Accordingly, the relevant past delay is about 14 years (16 April 1997 to 6 May 2011); and the defendant continues to allege additional prejudice in relation to the statute of limitations from 6 May 2011 until he present time, being 16 years and 3 months. It is submitted that no leave could be granted even in the absence of prejudice for a delay of 16 years and 3 months as it would be against all authorities, public interest and policy and the defendant’s rights, which must be equally protected.[11]
[11]HH fn: In discussion with counsel it was conceded that the authorities do not set a particular time period which automatically determines whether the application ought be refused. Rather, the longer the delay, the greater the presumed prejudice that may weigh against the granting of leave.
27The length of the delay is hence very considerable indeed. The length of the delay militates against the extension now sought, and affords a basis for inferring prejudice. (As to the latter, see below.)
Reasons for the delay
28The plaintiff proffers two explanations for the delay. In his affidavit sworn 6 May 2011, he says that he accepted the advice of Arnold Dallas McPherson (Ex F, para 19, Plaintiff CB, p.160) and that he did not consider that he was suffering from any serious consequences as a result of his transport accident during the period from in or around April 2003 to in or about 2008 (Ex F, para 21, Plaintiff CB, p.161).
29In its letter dated 29 April 2002 (Ex “JR4” to the plaintiff’s affidavit sworn 6 May 2011, Plaintiff CB p. 172), Arnold Dallas McPherson stated in part:
‘… You suffered severe damage to your right leg requiring surgery and you still have a metal rod inside your leg. At the time of the accident you were a pastry chef, although you were not then working. You believe that due to problems in standing you would not be able to work as a pastry chef now. You have performed some work as a security person around clubs and pubs but do need special consideration from your employer to allow you to take breaks regularly’.
30The plaintiff was in the best position to know the nature and extent of his incapacity and his concerns as to the future.[12]
[12]HH fn: The plaintiff is not qualified to diagnose his medical conditions.
Late manifestation of the full effects of the injury
31The second suggested explanation for the delay in commencing the proceeding is that the “serious injury” consequences of the plaintiff’s did not manifest themselves until more recent times, following attempted surgery in 2009.
32In the plaintiff’s affidavit sworn 3 September 2012 (Ex D, Plaintiff CB p.10, para 15), the plaintiff states that: ‘I felt that my condition had largely resolved, however, the pain from my physical injury progressively worsened over time, moreso, in approximately the two years prior to 2008.’
33The plaintiff’s assertion that problems did not manifest themselves until after December 2008 is wholly inconsistent with the preceding paragraph.
34In any event, if the plaintiff ceased work in December 2008 due to his injury, further delay from that point is unreasonable based on the significance of ceasing work and the fact that he had already received legal advice: see Winneke P at [74(b)] in Clark v McGuinness discussing a further 10 month period in that case.
Prejudice: The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant.
35Prejudice under s 23A(3)(b) need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay: see Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614.
36 Prejudice arises from:
(a)the corrosion of memory (particularly the prospective defendant’s memory) by the passage of time,
(b)the loss and probable destruction of employment and possibly medical records;
(c)the loss of the opportunity to have the plaintiff medically examined at past stages of the progress of his condition.
37Even if it be said that the defendant is unable to establish significant actual prejudice (which we submit is incorrect), it may properly be inferred that the delay in instituting proceedings is one that causes prejudice to the defendant: see Brisbane South Regional Health v Taylor (1996) 186 CLR 541; Myer Melbourne Limited v. Hammond [1984] VR 40 at 49; Koumorou v State of Victoria [1992] 2 VR 265 at 273; Lovejoy v. Carp [1999] VSC 223 at paragraph 64; Tsiadis v Patterson (2001) 4 VR 114 at 120 (para [23]) and 123 (para [32]).
38The reason why we submit that there is actual and/or likely prejudice is that by reason of the effluxion of time a trial of this matter is unlikely to occur for a further 1-2 years, and that the defendant’s memory of the accident must, based on common sense, be further corroded.
39In Tsiadis v Patterson [2001] VSCA 138 at [22] Buchanan J stated:
‘While such a provision may render it appropriate to require a respondent to establish that prejudice would result from delay before an applicant is bound to deal with its materiality, s23A(3)(b) requires the Court to have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice. It is not consistent with that requirement to rule out potential prejudice altogether because the fact that it has occurred or will necessarily occur has not been proven.’
40In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, the High Court dealt with matters of general application concerning another provision as to extension of time. The following principles can be distilled from the judgments of McHugh and Dawson JJ:
Per McHugh J. (with whom Dawson J. concurred):
At page 551 -
‘The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘where there is delay the quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in a case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists.’
At page 553 –
‘A limitation period ... represents the legislature’s judgment that the welfare of society is best served by causes of action litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.’
At page 554/5 -
‘... the test for prejudice [is not] ... whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. [Such an analysis] ... treats the limitation period as little more than a point of reference [and] ... gives no weight to the fact that the defendant’s potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant.’
From the joint judgment of Toohey J. and Gummow J. beginning at page 544.
At page 547 -
‘The discretion ... is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.’
At page 548 -
‘Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application.’
39In Clark v McGuin[n]ess [2005] VSCA 108, Warren CJ stated at para 40:
‘Notwithstanding the differences in the Queensland legislation considered in Brisbane South and the Victorian legislation in Tsiadis, the judicial statements on prejudice in both cases are in full agreement.’
40Further, delay that will be incurred until likely trial of a proceeding is also a factor to be weighed in these cases: see Kaye J in Edwards v Kennedy at [83].
41In Van Gerven v Amaca [Pty Ltd] [2012] VSC 131, Beach J stated:
‘Whilst the Court of Appeal in Tsiadis distinguished Brisbane South Regional Health Authority v Taylor, it did not “either in terms or by implication, distinguish the judicial statements made in that case as to the rationale for the existence of limitation periods and the interaction between statutory time bars and the question of prejudice to a defendant when a court makes an order which effectively overrides them.’
The evidence in relation to prejudice
The plaintiff’s affidavit material
42The plaintiff has served four affidavits in this matter, including a Section 23A affidavit and provided details of the accident in only one of them. In his affidavit sworn 24 September 2010 (Ex C, Plaintiff CB p.2) the plaintiff states:
‘Accident Circumstances
8At approximately 6.30pm on or around 16 April 1997 I was involved in a transport accident (‘the accident’) with a vehicle where I sustained injury.
9I was a pedestrian walking across Power Street, Hawthorn, when I was struck by a vehicle … .’
Medical and other records
43The report of St Vincent’s Hospital dated 25 August 2002 (Plaintiff CB p. 59) states:
‘Recorded history states while he was standing on the side of the road he was hit by car. There was no loss of consciousness and he was unsure as to how the accident happened.’
44In the plaintiff’s Claim for Compensation under the Transport Accident Act dated 3 July 1997 (Plaintiff CB p. 29),[13] he states: ‘No memory of accident No recollection.’
[13]HH fn: This document was not tendered in evidence
45The history obtained by Bethesda Hospital for its Inpatient Discharge Summary dated August 1997 (Plaintiff CB p. 55) was:
‘Michael was involved in a pedestrian versus car accident on the 16th April 1997. There was a momentary loss of consciousness. He remembers the impact of the vehicle and waking on the road with a person caring for him having called the ambulance.’
46The history that the plaintiff appears to have provided his solicitors on 26 April 2002 is set out in paragraph 10 of this affidavit.
47The report of Mr Rollo dated 24 October 2002 (Plaintiff CB p. 80), contains the following history:
‘He informs me that he has recently read the police report and discovered that he had been crossing a road and had been standing in the middle of the road while traffic passed him, and a car hit him from behind. His last clear memory was of standing in the middle of the road. His next clear memory was of an ambulance man pulling his fractured right leg out.’
48Importantly, during 2002, the plaintiff appears to have provided further details of the accident to Arnold Dallas McPherson as set out in its letter to him dated 20 November 2002 (Plaintiff CB p. 185) as follows:
‘It might be possible to show that the vehicle that entered from a side street and caused you to step backwards carried some measure of blame, but given your own difficulties in remembering what occurred, this would be very difficult. However, if you wanted to pursue it further you would need to speak to the independent witness, Ms Jennifer Beasy, who at the time of the accident was located at Unit 1, 23 Power Street, Hawthorn.’
49The report of Dr Kaplan dated 4 April 2011 (Plaintiff CB p. 97) contains the following history:
‘He has no memory of the accident and presumably suffered a loss of consciousness. He was subsequently informed that while standing in the centre of a main suburban road waiting for traffic to clear in order to cross, he was struck by a car coming from his right. His last recollection is of crossing to the middle of the road and standing on the white centre line waiting for cars coming from the left to pass.’
50The report of Dr Blombery dated 13 August 2012 (Plaintiff CB p. 136) states the following:
‘He was crossing Power Street in Hawthorn. He had half crossed the road and was standing in the middle of the road waiting for the other lane to clear when a car struck him from behind on the right leg. He said that he flew over the bonnet of the car and landed on the ground.’
51The plaintiff was questioned about the accident during cross-examination (Transcript 29 July 2013, p. 28, lines 2-30). The plaintiff stated that he had ‘minimal recollection’ of the circumstances of the accident (line 5) and ‘I have no recollection of the actual incident but I remember standing on the white line and then I remember being in the ambulance’ (lines 22-24).
52In Calvin Hayes v Transport Accident Commission [2009] VCC
0943, Judge Cohen stated at [44]:‘There is much authority for the proposition that general prejudice inevitably results from long delay, and it is impossible to know what evidence (including more accurate memory) may have been available but has been lost through the delay.’
53In the absence of evidence from the deceased independent witness and the limited recollection of the plaintiff, any common law trial in relation to this accident must necessarily hinge on the evidence of the prospective defendant driver. There is a clear possibility that the driver’s memory of the accident may have faded, perhaps impalpably so and that it may deteriorate further prior to trial. In particular, Exhibit ‘JR8’ to the plaintiff’s affidavit sworn 6 May 2011 (Plaintiff CB p.185) appears to refer to the possible involvement of another vehicle in the accident.[14]
[14]HH fn: A statement has apparently been obtained from Mr Lahanis and made available by the defendant to the plaintiff. It was not tendered in these proceedings and I do not speculate about its contents. At the request of both parties I draw no adverse inference from the failure to tender it.
54At [39] in Clark v McGuinness, Warren CJ stated:
‘In summary, the principles espoused in Tsiadis make it clear that the court must have regard not only to established prejudice, but also to consider the extent to which there is likely to be prejudice.’
55There is a grave prospect of unfairness to the prospective defendant in any trial, with his recollection of the accident first sought many years after the fact and providing the basis for any claim brought against him, well outside the limitation period. Natural imperfect memory is liable to be able to be scrutinised and pulled apart, subject to interrogation and cross-examination with respect to possible inaccuracies or inconsistency, all without the driver or the court knowing whether he would have been supported by the deceased independent witness.
Conclusion
The plaintiff has not discharged the onus imposed on him, and therefore the Court should not exercise its discretion in favour of the order sought.”
Findings of fact in respect of the s23A application
20 I agree with the parties that the statutory time limit to bring common law proceedings for damages arising out of the collision expired on 15 April 2003.
21 I am satisfied that the plaintiff did not become aware of his serious injury consequences until after he ceased work as a baker in December 2008. I disagree that, because the plaintiff complained of an inability/difficulty to work as a security guard, that he must have appreciated the existence of serious injury consequences if indeed these symptoms constituted serious injury consequences. Although the plaintiff stated that the pain from his physical injury progressively worsened over time, more so since approximately 2006 (see paragraph 32, exhibit 1), there was no clear diagnosis to explain it. Thereafter, the plaintiff sought medical assistance. As late as 27 March 2009, and MRI scan (exhibit l(p)) was unable to account for the plaintiff’s pain. I am satisfied that until late 2008, early 2009, the preponderance of evidence confirms that the plaintiff, his doctors and even the defendant all considered that the plaintiff either had made, or would in all probability make, a full recovery from his injuries. I am unable to determine the particular date upon which the plaintiff became aware of his serious injury consequences, but I am satisfied that by January 2009, the plaintiff was contemplating bringing proceedings when he consulted his present solicitors. Since that time, the plaintiff’s condition has continued to deteriorate. He has undergone further surgical procedures, and only about a year ago he was diagnosed as suffering a Complex Regional Pain Syndrome (exhibit AA). Before that diagnosis, there was little by way of diagnostic imaging to explain his pain and symptoms.
22 I accept that because of the effluxion of time, there is inherent prejudice to the defendant if leave is granted to extend time. Although I draw no adverse inference from the failure to tender a statement made by Mr Lahanis, I am unable to find specific prejudice in view of the fact that no evidence has been tendered by the defendant on this subject. I accept that Ms Beasy, a potential eye-witness, has died, but she died well before the statutory time period expired. Had proceedings been brought within time, she would have been unavailable in any event. In other words, delay has not contributed to this alleged prejudice. Furthermore, I cannot speculate what, if anything, she would say about the accident. Nor can I speculate which party her evidence may have assisted.
23 I am unpersuaded that there has been any serious prejudice occasioned to the defendant by reason of lost opportunity to have the plaintiff medically examined. The plaintiff sought little by way of treatment between 2002 and the end of 2008. There is a large pile of records returned in answer to various subpoenas. The material has been made available to the parties and has been inspected. It has not been suggested how this alleged prejudice has actually compromised the defendant’s right to a fair trial or how this had any real bearing on whether the plaintiff has sustained a compensable injury (see exhibit 1, paragraph 36(c)). If leave is granted, he will no doubt submit to medical examinations at the behest of the defendant.
Balancing the factors relevant to the exercise of the discretion
24 The parties have correctly identified the applicable legal principles set out above. I note the items they have each listed as requiring consideration in the exercise of my discretion. I do not repeat them all. I have included some of my comments and findings in footnotes.
Factors weighing against the granting of leave
· The length of the delay – it is a very long period. The plaintiff was aware that a period of limitation applied, and that it would expire on 15 April 2003.
· Prejudice – inherent prejudice is presumed. Witnesses’ memories fade. (There is no evidence that any relevant material has been destroyed or lost.)
· The extent to which the plaintiff acted promptly and reasonably once he knew that the driver’s negligence might be capable of giving rise to an action in damages – the plaintiff consulted his current solicitors in January 2009. The parties agree that the plaintiff is not responsible for delay occasioned by his solicitors.
· Steps taken by the plaintiff – he has undergone a number of medical procedures and has obtained medical advice and opinion.
· Public policy considerations in favour of finality.
Factors weighing in favour of granting leave
· The delay is explicable. The plaintiff did not have patent serious injury consequences until late 2008. Nor was there a medical explanation for his increasing symptoms until late in the piece.
· Inherent prejudice is conceded, but no specific prejudice is identified.
· The plaintiff acted promptly once his serious injury consequences became known.
Conclusion
25 I have weighed all of the factors referred to by the parties in their submissions. Here, the defendant concedes that the plaintiff has a “serious injury”. The defendant also concedes that the plaintiff has an arguable cause of action in negligence against the driver. The defendant also concedes that it cannot point to any specific prejudice if leave is granted. I acknowledge that finality in litigation is an important consideration. However, I must do what is in the interests of justice.
26 It is difficult to see what more this plaintiff could have done before the statutory time limit expired. All parties (the plaintiff’s solicitors and the TAC), agreed that he had no prospect of successfully seeking leave to bring common law proceedings, at the very least because he had no impairment, and more relevantly, because he could not establish “serious injury”. It is not suggested that he should have issued a “holding” application, or that he should have foreseen that in the future his symptoms would deteriorate to such a degree as might qualify him for the grant of leave under s93 of the Act. He could only bring proceedings when his condition deteriorated and when he knew of his serious injury consequences. He did not know of his serious injury consequences until the end of 2008, as I have already found. Thereafter, he acted reasonably promptly.
27 I accept the plaintiff’s written submissions and adopt them.
28 The plaintiff has persuaded me on the balance of probabilities that it is just and reasonable to extend time within which he may issue his common law proceedings.
29 Accordingly, I grant the application under s23A of the LAA.
30 I will hear the parties on the question of the formal orders to be made.
Annexure ‘A’
Note: The Transcript records discussion with counsel concerning the detail of summary required for oral reasons. Please refer to it if further details are required.
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CIVIL DIVISION
Revised
Not Restricted
Suitable for PublicationDAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISIONCase No. 2740 of 2011
JAMEZ ROWLANDS Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant ---
JUDGE:
HER HONOUR JUDGE MORRISH
WHERE HELD:
Melbourne
DATE OF HEARING:
25, 26, 29 and 31 July 2013
DATE OF JUDGMENT:
31 July 2013
CASE MAY BE CITED AS:
Rowlands v Transport Accident Commission
MEDIUM NEUTRAL CITATION:
[2019] VCC
TRANSCRIPT OF SUMMARY
REASONS FOR JUDGMENT
DELIVERED ORALLY---
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APPEARANCES:
Counsel Solicitors For the Plaintiff Mr C W R Harrison SC with Mr L R Paine Victorian Compensation Lawyers For the Defendant Mr P A Scanlon QC with Mr P V Bourke Solicitor to the Transport Accident Commission HER HONOUR:
31 At approximately 6.30pm on 16 April 1997, the plaintiff was a pedestrian, standing on Power Street, Hawthorn, when he was struck by a car apparently driven Mr Nick Lahanis (“the collision”). He lost consciousness and came to in an ambulance. He has no recollection of how the collision occurred.
32 According to his sworn evidence before me, the last thing he remembers before the collision is standing on the white line and the first thing after was the ambulance. Mr Rowlands was seriously injured in that collision. At the close of the plaintiff’s case, the defendant, quite properly, conceded that the plaintiff has a “serious injury” as defined in s93(17) of the Transport Accident Act 1986.
33 Accordingly, I propose to grant leave to the plaintiff to commence common law proceedings for damages arising from the collision.
34 However, the plaintiff’s claim became statute-barred on 15 April 2003. Initially he sought advice about pursuing common law proceedings. He took no action to seek either a certificate or grant of leave under s93(4)(d) within that period. His solicitors did eventually take some action, as I will later describe, but he finally lodged an application to extend time on the first day of these proceedings before me.
35 The plaintiff applies under s23A of the Limitation of Actions Act 1958 to extend time to enable him to issue those proceedings. The proceedings commenced on 25 July 2013 and continued on 26 and 29 July 2013.
36 Mr Harrison SC appeared with Mr Paine on behalf of the plaintiff; Mr Scanlon QC appeared with Mr Bourke on behalf of the defendant. At the completion of the evidence on 29 July 2013, the matter was adjourned until today, to enable the parties to prepare written submissions. I am grateful to the parties for providing me such comprehensive written submissions. I do not propose in these oral reasons for judgment to paraphrase what the parties have said. I propose to either annexe or cut and paste those submissions and they will appear in my written reasons for judgment.
37 A chronology summarising significant aspects of the plaintiff’s case was tendered as exhibit A. In the judgment, I have added relevant facts to it; that is, facts relevant to the s23A application. I am not going to go through that entire chronology now. That will appear in the reasons.
38 So far as the evidence tendered and called before me, the plaintiff gave sworn evidence. Four affidavits that he swore were adopted as his evidence‑in‑chief. In addition, a large number of exhibits were tendered. The full list of exhibits will appear in the judgment. I have read all of the exhibits and I have taken them very much into account.
39 Perhaps I will oversimplify the evidence in support of the serious injury application – it is not really in dispute in view of the concession that the plaintiff has suffered a serious injury – but all of the evidence that was tendered, together with the appropriate concession made on behalf of the defendant justifies the granting of leave, accepting as I do that the plaintiff has established on the balance of probabilities that he has a “serious injury” as defined.
40 The plaintiff relied on the material to establish that, however, he did not become aware of his serious injury consequences until well after the statutory period expired. So the evidence in support of his application to extend time was tendered to show that the plaintiff did not have patent signs of a serious injury until, at the very earliest, late 2008.
41 The evidence shows that initially, after surgery, the plaintiff made a good recovery. He was able to return to full‑time employment. His quality of life was largely unaffected. He believed he would make a full recovery from his injuries and it was only after it became clear that there were ongoing problems, escalating pain and an increasing likelihood that he could no longer engage in meaningful employment ever again that he decided to consult a solicitor about bringing proceedings.
42 A number of relevant exhibits are attached to the plaintiff's affidavit, exhibit F, in particular, letters from his former solicitors advising him of the statutory time limit and their opinion that he had little prospect of succeeding in any event – even if he had decided to bring some sort of proceedings.
43 The defendant did not call any evidence. However, a number of exhibits were tendered, included a written outline of submissions, Exhibit 1 and two further medical reports (Exhibits 2 and 3). The list of the defendant’s exhibits will appear in the final reasons for judgment. I have read all of the exhibits, as I have indicated.
44 Turning to the application to extend time under s23A of the Limitation of Actions Act, the parties agree that the applicable legal principles are accurately set out in their respective written submissions and, as I say, I am very grateful to the parties for having taken the time and trouble to present such comprehensive submissions. I have then set out in my written reasons for judgment the plaintiff’s submissions, both the ones that were tendered earlier and the further submissions in support of the application. I have considered all of the authorities to which I have been referred.
45 I have incorporated the defendant’s written submissions, exhibit 1, into my judgment. Those submissions also accurately set out the correct legal principles. I was referred to a number of authorities. I have read them all. I have received a bundle of authorities and taken them into account.
46 Turning to my findings of fact in respect of the s23A application, I agree with the parties that that the statutory time limit to bring common law proceedings for damages arising out of the collision expired on 15 April 2003. I am satisfied that the plaintiff did not become aware of his serious injury consequences until after he ceased work as a baker in December 2008. I disagree that because the plaintiff complained of inability or difficulty to work as a security guard, that he must have appreciated the existence of serious injury consequences. I am satisfied that until that time, that is, December 2008, the preponderance of evidence confirms that the plaintiff, his doctors and even the defendant all considered that the plaintiff either had made or would in all probability make a full recovery from his injuries. I am unable to determine the particular date upon which the plaintiff became so aware but I am satisfied that by January 2009, the plaintiff was contemplating bringing proceedings when he consulted his present solicitors.
47 Since that time, the plaintiff's condition has continued to deteriorate. He has undergone further surgical procedures, and only about a year ago he was diagnosed as suffering a Complex Regional Pain Syndrome, that is in or about May of last year: see exhibit AA. Before that diagnosis, there was little diagnostic imaging to explain his pain and his symptoms.
48 I accept that because of the effluxion of time, there is inherent prejudice to the defendant if leave is granted to extend time. I am unable to find specific prejudice in view of the fact that no evidence has been tendered by the defendant on this subject. I accept a potential eyewitness, Ms Beasy, has died, but she died well before the statutory time period expired. Had proceedings been brought within time, she would have been unavailable in any event; in other words, delay has not contributed to this alleged prejudice.
49 I am unpersuaded that there has been any serious prejudice occasioned to the defendant by reason of lost opportunity to have the plaintiff medically examined. The plaintiff sought little by way of treatment between 2002 and end of 2008. Subpoenaed material is still available. If leave is granted, the plaintiff will no doubt submit to medical examinations at the behest of the defendant.
50 Balancing the factors relevant to the exercise of the discretion, the parties have correctly identified the applicable legal principles set out above. I note the items they have each listed as requiring consideration in the exercise of my discretion. I do not repeat them all.
51 Factors weighing against the granting of leave: the length of the delay. It is a very long period. The plaintiff was aware that a period of limitation applied. Prejudice: inherent prejudice is presumed. Witnesses’ memories fade. The extent to which the plaintiff acted promptly and reasonably once he knew that the driver's negligence might be capable of giving rise to an action in damages: the plaintiff consulted his solicitors in January 2009. The parties agree that the plaintiff is not responsible for delay occasioned by his solicitors.
52 Steps taken by the plaintiff: he has undergone a number of medical procedures and obtained medical advice and opinion.
53 Public policy considerations in favour of finality.
54 Factors weighing in favour of granting leave: the delay is explicable. The plaintiff was unaware of his serious injury consequences until late 2008. Inherent prejudice is conceded but no specific prejudice is identified. The plaintiff acted promptly once his serious injury consequences became known.
55 Conclusion: I have weighed all of the factors referred to by the parties in their submissions. Here, the defendant concedes that the plaintiff has a serious injury. The defendant also concedes that the plaintiff has an arguable cause of action in negligence against the driver. The defendant also concedes that it cannot point to any specific prejudice if leave is granted.
56 I acknowledge that finality in litigation is an important consideration. However, I must do what is in the interests of justice. It is difficult to see what more the plaintiff could have done before the statutory time limit expired. All agreed that he had no prospect of successfully seeking leave to bring common law proceedings, at the very least because he had no impairment and, more relevantly, because he could not establish serious injury. It is not suggested that he should have issued a holding application or that he should have foreseen that in the future, his symptoms would deteriorate to such a degree as might qualify him for the grant of leave under s93 of the Act. He could only bring proceedings when he knew of his serious injury consequences and he did not know of them until the end of 2008 as I have already found. Thereafter, he acted promptly.
57 I accept the plaintiff's written submissions and I adopt them. The plaintiff has persuaded me on the balance of probabilities that it is just and reasonable to extend time within which he may issue his common law proceedings. According, I grant the application under s.23A.
58 I will hear the parties on the question of the formal orders to be made.
---
59 HER HONOUR: I have got to grant leave under s93 to bring the common law proceedings and I have got to extend time within which he may issue. What is the time?---
60 MR PAINE: I had in mind that the plaintiff had leave to within 30 days issue a statement of claim commending the proceedings. I don’t know if there’s any – I’m told that that would be so.
61 HER HONOUR: Then I will extend time, 30 days after today’s judgment.
62 MR PAINE: So it’s 1 August tomorrow; perhaps until 1 September 2013.
63 HER HONOUR: All right. Time is extended to enable the plaintiff to issue his common law proceedings until 1 September 2013.
…
64 … I have already indicated that leave will be granted to issue common law proceedings under s93(4) of the Act in respect of the injuries the plaintiff sustained as a consequence of a transport accident ‑ ‑ ‑
…
65 HER HONOUR: - - - on 16 April 97?---
…
66 HER HONOUR: Could I just ask, have I given you sufficient of a summary to enable you to understand the reasons for judgment?---
67 MR BOURKE: Yes, Your Honour, thank you.
68 HER HONOUR: Thank you.
69 MR PAINE: Your Honour, the plaintiff would seek costs in that matter.
70 HER HONOUR: Yes.
… .
Note: The Transcript records the costs application and orders as to costs.
…
71 HER HONOUR: I will reserve liberty to apply. I will direct that the transcript of my summary of oral reasons be taken out – who is going to take that out? Is that still the defendant, taking out the transcript?
72 MR BOURKE: Yes, Your Honour.
73 HER HONOUR: And when revised, be made available to the parties. But I will try and revise my draft reasons by the end of the week, although I note that I am due to start a jury trial tomorrow. So I will try and get the revised reasons out as soon as I can. I wish again to record my thanks to the legal representatives for their assistance in this case. Had it not been for that assistance, I would not have been able to deliver a judgment in such a timely fashion. Would you please both pass on my thanks to your respective leaders.
74 MR BOURKE: Thank you for your generous remarks, Your Honour.
75 ADJOURNED 4.48 PM
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