Spear v Transport Accident Commission (Ruling)
[2016] VCC 1536
•1 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-01543
| LUKE SPEAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2016 | |
DATE OF RULING: | 1 June 2016 | |
CASE MAY BE CITED AS: | Spear v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1536 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time – transport accident – personal injury – delay – prejudice – synthesis of the applicable considerations in s23A(3)
Legislation Cited: Limitations of Actions Act 1958, s23A
Cases Cited:Delai v Western District Health Service & Anor [2009] VSC 151; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Myer Melbourne Ltd v Hammond [1984] VR 40; Ford Motor (Aust) Ltd v Kulic [1988] VR 152; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Burk v The Commonwealth (No 2) [2002] VSC 464; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
Ruling: The period within which the plaintiff may bring an action for damages in respect of injuries sustained in a transport accident on 18 May 1994 is extended to 14 July 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr P A Johnstone | Slater & Gordon Limited |
| For the Defendant | Mr G A Lewis QC with Mr S E Gladman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff pursuant to s23A of the Limitations of Actions Act 1958 for an order that the period within which an action in respect of injuries sustained in a transport accident back in 1994 may be brought, be extended. As the circumstances giving rise to the application were scarcely in dispute, neither party called any evidence on the application. I was, however, handed up two court books which, according to the index that each of them had, contained more than a thousand pages of material.
2 In the course of submissions, counsel for each side agreed that it was not necessary, for me to decide the issues in this case, to read and digest all of that material, and so the exercise of the powers conferred on me by ss(2) is to be made on the basis of the facts, which were agreed, concessions made in the course of submissions, written chronologies prepared by each party, a dot pointed list of the available – or at least some of the available – medical and radiological material in the case, the defendant’s written submissions, and a number of authorities and decisions from the trial division of the Supreme Court that were referred to in submissions.[1] I have also, of course, read the affidavits each party filed in respect of this application.[2]
[1]Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [27]; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraphs [86], [72]-[75] and [77]; Tsiadis v Patterson (2001) 4 VR 114 at paragraph [27]; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Myer Melbourne Ltd v Hammond [1984] VR 40 at paragraph [49]; Ford Motor (Aust) Ltd v Kulic [1988] VR 152 at 157; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551; Burk v The Commonwealth (No 2) [2002] VSC 464 at paragraph [14]
[2]There was an affidavit by the plaintiff dated 3 October 2014 and an affidavit by Mr Tsongas, the defendant’s solicitor
3 It seems that this rather unusual course was adopted because it was announced at the commencement of the hearing of this application that the defendant resisted the plaintiff’s application on only two bases; first, the presumptive prejudice, and second, on the basis that the plaintiff’s prospects of success against his former solicitors were so strong that these factors should weigh against the granting of the application in the synthesis for which the section provides. Moreover, it was specifically conceded that there had been no unreasonable delay by the plaintiff; indeed, as Senior Counsel for the defendant put it, “He’s been perfectly reasonable”.[3]
[3]Transcript 14, L23-25
4 The background to the case may be shortly stated. The plaintiff was born in September 1985, and so was aged only eight when, on 18 May 1994, he was crossing a roadway in the company of his mother when he was struck by a vehicle which had overtaken another vehicle which had already stopped to let the plaintiff and his mother cross the road. It should immediately be noted that counsel for the defendant conceded that if leave is granted, liability on behalf of the defendant (who I was informed is still alive and available in any event) would be admitted in the plaintiff’s proposed action for damages.
5 After the collision, the proposed defendant drove the plaintiff and his mother to a nearby general practitioner’s clinic. He was not taken to hospital. He continued to attend the clinic over the next year or two at the least. On 17 August 1994, the Transport Accident Commission (“TAC”) accepted the claim lodged on the plaintiff’s behalf by his mother in respect of injuries sustained as a result of the accident, which were listed to include bruising of the left leg, arm and knee, and bruising and a lump to the back of the head to the left side.[4]
[4]Defendant’s Court Book (“DCB”) 12-14
6 After the accident, the plaintiff suffered from persistent migraine headaches, and specialists became involved. The first of them appears to have been a neurologist, Dr Brian Chambers, who wrote to the TAC concerning the plaintiff’s post-traumatic migraines in May 1995, so within twelve months of the accident.[5] An earlier letter from Dr Chambers back to Dr Ahern in March 1995,[6] clearly sets out his views on the nature and cause of the plaintiff’s complaints at that time; that is, that his headaches were post-traumatic.
[5]Plaintiff’s Court Book (“PCB”) 44
[6]PCB 348
7 It seems that the plaintiff was first examined by anyone on behalf of the TAC by the surgeon, Mr Richard Strangward, in October 1995. He expressed the view that the frequent headaches of which the plaintiff was then complaining were undoubtedly genuine, and that his treatment at the hands of Dr Chambers was appropriate. After that time – that is, after 1995, as the summary list of medical reporting provided in the course of the hearing shows – the plaintiff was examined by a great many medical specialists in respect of the injuries, whether for the purposes of managing his continuing complaints or for the purposes of assessing the TAC’s continuing liability.
8 The reports begin with that of Mr Strangward, and appear at very frequent intervals up until the present time, and they occupy hundreds of pages of the court books. Also available to the parties are more than 350 pages of clinical records, going well back into the 1990s. It is apparent from the TAC payment summary,[7] that medical and physiotherapy and other treatment expenses have been paid on an almost continuous basis since the accident occurred, so that – and this submission was not resisted – the plaintiff's injuries and his need for medical attention in respect of them has never been “off the TAC’s radar”.
[7]DCB 15-44
9 The parties were also in agreement that the cause of action accrued in May 1994, and that the period within which the plaintiff should have commenced proceedings had expired on 22 September 2009. It was common ground also that on 5 May 2016, in respect of the injuries sustained in the accident, the TAC granted to the plaintiff a Serious Injury Certificate under s93 of the Transport Accident Act, a certificate having been earlier refused in February 2015, and an impairment claim having been denied back in 2005 on grounds set out in correspondence.[8]
[8]DCB 30 and following
10 As to the position of the plaintiff’s former solicitors, Moores, they had had instructions from the plaintiff and his mother from as early as 1997, but they did not commence proceedings on the plaintiff’s behalf within the time allowed. Their letter to the plaintiff of 9 August 2011,[9] amongst other matters, notes that the TAC’s impairment assessment had not entitled the plaintiff to a payment because it was not greater than ten per cent; that they expected the plaintiff would be able to establish negligence on the part of the driver; that the plaintiff would need to establish a serious injury to be able to bring a common law claim and that they doubted the plaintiff’s ability to establish a serious injury and they advised him that any common law claim “is not an easy one”.
[9]DCB 374
11 Next, the letter notes that the limitation period had expired in August 2009 and that no application for a serious injury certificate or common law proceeding had been issued or made within that time. As to why that was so, the letter offers only this explanation, “Tim Adam had primary conduct of your file. Unfortunately, Tim has suffered a serious illness and is no longer able to practice the law. We are not, therefore, able to offer you any explanation for the failure to make that, the serious injury application.”
12 I was informed from the Bar table without objection that the Mr Adam referred to had, in fact, suffered a stroke.
13 As to the plaintiff’s disability arising from the accident, I was informed, and no quarrel was taken with this very short summary, that, as a result of the accident, the plaintiff had suffered from severe neck pain, headaches, migraine, nausea, loss of balance and blurred vision, memory loss, tremor, symptoms of give way in the left knee and Post-Traumatic Stress Disorder with flashbacks.
14 Further, I was informed that his earning capacity has been impaired. He has only ever had sporadic employment and he is now, in consequence of the accident-related injuries, in receipt of the Disability Support Pension.
15 I should mention also, though neither party addressed this issue, that the earlier reporting in the case acknowledges that the plaintiff did have some difficulties with schooling and behaviour before the accident. These are set out and commented upon in the report of a psychologist prepared in 1992, so a couple of years before the accident,[10] and no concerns, that his pre-accident state could not be ascertained in the defence of his claim for damages, were raised in the course of submissions.
[10]PCB 27
16 By reference to the TAC’s payment summary, the solicitor for the defendant, Mr Nick Tsongas, deposed that the defendant had paid for nine consultations with Dr Ahern between 2 August 1994 and 24 June 1995 and for two consultations with a Dr Lawry in October 1995 and July 1996.
17 Mr Tsongas deposes that he had spoken to both of them. Neither of them could recall the plaintiff and, despite such assistances those doctors could give, the clinical notes that each of them had made from that time have not been able to be located.
Counsel’s submissions on the defendant’s behalf
18 Mr Lewis spoke to written submissions and relied upon presumptive prejudice in the Brisbane South[11] sense, as explained and applied in Tsiadis,[12] Gordon,[13] Davies[14] and other cases referred to in his submissions.
[11]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541(supra)
[12]Tsiadis v Patterson (supra)
[13]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra)
[14]Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
19 Here, Mr Lewis identified the doctors’ (that is Dr Ahern’s and Lawry’s) lack of recall and the lack of notes as showing the extent of the prejudice in the sense that what has been forgotten by those doctors or what their notes might have shown cannot now ever be known. He placed great reliance on the analysis by Justice J Forrest in Gordon. Next, he relied upon the strength of the plaintiff’s potential claim against his solicitors, describing the letter I have already referred to as a “confession” and submitting strongly that the claim against Moores was, as it had been in Gordon, a clear case and so this factor should be weighed as a “real consideration” in the synthesis that the section requires.
20 On the plaintiff’s behalf, it was submitted that the presumptive prejudice was more imagined than real because there was no real prospect of the two general practitioners ever having to give evidence in a case where, over many years, liability for the relied upon consequences of the accident had been accepted, on the basis of repeated specialist reporting, and where the injuries had not stabilised for many years after the accident and where there was a remarkable body of medical material, dating from very soon after the accident, which would bear upon the nature and extent of the injuries in a trial which, in any event, would be assessment of damages, particularly so in a case where the (eventual) grant of the serious injury certificate shows that no serious issue as to the connection between his present complaints and the injury, long ago, exists.
21 It was submitted also that, even if I accepted the submission as to the strength of the potential claim against the solicitors, it is still a suit for the loss of a chance, rather than the straightforward assessment of damages that would occur if the extension of time sought was granted.
22 As both counsel submitted, the exercise of the power conferred by ss(2) requires the synthesis of all relevant factors. The factors enumerated in ss(3) are not exhaustive. Here, the length of, and the reasons for the delay on the part of the plaintiff, is clearly explained and it is not suggested that factors (c), (d) or (f) have any bearing here.
23 As to the likelihood of prejudice to the defendant, clear it is that the delay prejudices the defendant in the Brisbane South[15] sense. Whether the prejudice caused by delay amounts to significant prejudice must also be considered. In this case, unlike the circumstances in many of the cases to which I was referred, the important evidence upon which the opinions will be expressed on the only question in the trial, damages, has been very substantially preserved.
[15]Brisbane South Regional Health Authority v Taylor (supra)
24 It was not seriously suggested, beyond reference to the “unknown unknown”, that any significant issue as to causation is sought to be agitated in the trial as, had this been the case, over the twenty-four years since the accident occurred, one might have expected the Commission to deny liability for some of the forms of treatment or, after being briefed with all of the extensive reporting available, to have tested the plaintiff’s application for a serious injury certificate on causation grounds.
25 What remains, is a vast body of specialist reporting about the plaintiff’s accident-caused problems from very soon after his injuries were sustained and I am easily satisfied that the defendant can have a fair trial and I think it likely it would be closer to “an ideal trial” in the sense of the distinction between a fair and ideal trial referred to by Justice J Forrest in Gordon,[16] where he said:
“… In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. A Court has to make an assessment of what might occur at the trial in terms of determining whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as it would make the chances of an acceptably fair trial unlikely. … .”
[16]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra) at paragraph [79]
26 Further, insofar as the missing notes are concerned, at least by the time Dr Lawry came on the scene, the plaintiff was already being managed by the specialist neurologist, Dr Brian Chambers, so it is, in my view, quite unlikely that the absence of, at least, Dr Lawry’s notes would ever give rise to any prejudice in this particular case. I have had regard also to the duration of the plaintiff’s disability. It persists to the present day and, on a brief read of the more contemporaneous medical reports, seems likely to continue for the foreseeable future.
27 At the age of thirty-one, he is in receipt of a Disability Support Pension. The loss of the ability to pursue his claim for damages against the defendant is indeed a very significant one.
28 I have had regard, also, to the potential proceeding the plaintiff may bring against his former solicitors. It is to be remembered that the nature of that proceeding is different.
29 It is also remembered that in the suit against his solicitors, they would have available to them matters of instruction, from the plaintiff and perhaps from his mother, which might be raised in defence of his claim, that would not confront the plaintiff in the proposed proceeding against the defendant here. And it also should be borne in mind that, writing in 2011, those solicitors expressed a serious doubt that a serious injury certificate would ever be obtained, apparently a view shared by the defendant as late as the refusal of the plaintiff’s application for a certificate in February of only last year.
30 The material which led to the author of the letter from Moores expressing that view may be peculiarly within the knowledge of those solicitors and might only be aired in a trial of a proceeding against them, and not in the proposed proceedings here.
31 Although it is likely, the failure to issue being still largely unexplained, that his prospects of success against his former solicitors are quite good, few things in litigation are certain and I am not persuaded that the prospects of a successful suit against his former solicitors for the loss of a chance, whilst always a relevant consideration, should be decisive here.
32 Having regard to all the circumstances of this case and the submissions made on behalf of each of the parties, I am satisfied that it is just and reasonable to order that the period which an action may brought should be extended to a date; I assume a date in the near future, and I will hear submissions from the parties as to the date to which that time should be extended.
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