Tiba v Transport Accident Commission (Ruling)
[2024] VCC 658
•15 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-02984
| OMAR TIBA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2024 | |
DATE OF RULING: | 15 May 2024 | |
CASE MAY BE CITED AS: | Tiba v Transport Accident Commission (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 658 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Whether cause of action accrued on date of accident or on date of diagnosis – proceeding statute barred ꟷ delay in filing application for extension of time – no specific or material prejudice occasioned by delay – significant material regarding accident is available – just and reasonable to grant extension of time
Legislation Cited: Limitation of Actions Act 1958 (Vic), s5(1)(a), s23A(2) and s23A(3); Transport Accident Act 1986 (as amended) (Vic), s1, s3(1), s3(4), s35(1), s43(1), s46A(1)(a), s68(1)(a), s68(1)(d), s93(4)(c)(ii), s93(19) and s93(20); Limitation Act 1939 (UK), s2; Electricity Act 1947 (UK); County Court Civil Procedure Rules 2018, r20.03(3)(b) and r34A.25(2); Wrongs Act 1958 (Vic)
Cases Cited:Central Electricity Generating Board v Halifax Corporation [1962] 3 All ER 915; Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780; Barber v De Prima (2018) 97 NSWLR 932; McQueen v Mount Isa Mines Ltd [2018] 3 Qd R 1; Vanger v Bozzato & Anor [2012] SASC 227; Commonwealth v Vero Insurance Ltd (ACN 005 297 807) (2012) 291 ALR 563; Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission (2003) 216 CLR 1; Meyappa Chetty v. Supramanian Chetty [1916] 1 A.C. 603; Haylock v. Sparke (1853) 1 E. & B. 471; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Moules v Transport Accident Commission [2021] VSC 436; Griffiths v Nillimbuk Shire Council [2022] VSCA 212; Edwards v Kennedy and ors [2009] VSC 74; Kone Elevators Pty. Ltd v Popa [2006] VSCA 26; Wintle v Stevedoring Industry Finance Committee and Ors [2002] VSC 265 Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Koumorou v Victoria [1991] 2 VR 265; Horan v Melbourne College of Hair and Beauty Culture Pty Ltd (Unreported, VSCS, 22 June 1995, Brooking, Charles & Callaway JJA); Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Delai v Western District Health Service [2009] VSC 151; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Millard v Victoria [2006] VSCA 29
Ruling: The plaintiff is granted an extension of time in which to commence proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr Z Partos | Carbone Lawyers |
| For the Defendant | Mr J Valiotis | Solicitors to the Transport Accident Commission |
HER HONOUR:
Introduction
1On 26 May 2011, Mr Tiba was twenty-two years old. He was a rear-seat passenger in a vehicle travelling along a Melbourne street.[1] The driver allegedly lost control of the vehicle causing it to collide with a pole. Tragically, the driver died and Mr Tiba was seriously injured. No others were present in the vehicle at the time of the accident.
[1]The claim form, at Amended Plaintiff’s Court Book (“PACB”) 160, nominates the street as Widford Street Broadmeadows. The plaintiff’s affidavit in support of serious injury application sworn on 9 March 2017, at PACB 32, nominates somewhere on Camp Road, near Pascoe Vale Road.
2This matter came before me as an application by summons for an extension of time under s23A of the Limitation of Actions Act 1958 (Vic) (“LAA”).
3At the commencement of the hearing, Senior Counsel for Mr Tiba submitted that there was a preliminary issue to be decided. It was said that Mr Tiba’s cause of action accrued in March 2015 when an acquired brain injury (“ABI”) was first diagnosed, and accordingly, no extension of time was necessary.[2] There were two limbs to this argument, either the cause of action was not “complete” or the injury had not manifested itself until the diagnosis. The extension of time application was pursued by Mr Tiba as an alternative to the first two arguments.
[2]Transcript (“T”) 3, Lines (“L”) 15-21
Background
4Mr Tiba was taken from the scene of the accident by ambulance to The Royal Melbourne Hospital where he spent approximately two weeks, being discharged on 6 June 2011.[3] He was diagnosed with skull and hip fractures. The hip was surgically treated. Mr Tiba was then transferred to Dorset Rehabilitation Centre, where he remained for about ten days, being discharged home on 18 June 2011.[4]
[3]PACB 277
[4]PACB 233 and 311
5On 9 March 2017, the Transport Accident Commission (“TAC”) granted Mr Tiba a serious injury certificate pursuant to s93 of the Transport Accident Act 1986 (Vic) (“TAA”).[5]
[5]Defendant’s Court Book (“DCB”) 6, affidavit of Anthony Angelopoulos sworn on 12 December 2023 (“Angelopoulos affidavit”) at paragraph [10]
6On 25 May 2017, the limitation period for Mr Tiba’s common law claim expired.
7On 12 July 2018, Grando and Breheny solicitors filed a Writ in this court seeking damages for a range of physical injuries and an ABI said to have been caused by the transport accident.[6]
[6]PACB 129
8On 2 July 2019, the Writ and Statement of Claim were served on the TAC.[7]
[7]DCB 6, Angelopoulos affidavit at paragraph [13]; DCB 45
9On 29 August 2019, the TAC filed its defence which pleaded that the Writ had been filed more than six years after the Mr Tiba’s cause of action against the TAC accrued (being on the day of the accident, 26 May 2011).[8]
[8]DCB 6, Angelopoulos affidavit at paragraph [14]; Defence dated 27 August 2019 at PACB 145-148
10If Mr Tiba’s cause of action arose on the day of the accident, it became statute barred on 25 May 2017.
11On 13 November 2023, Carbone Lawyers (“Carbone”) issued a summons seeking an extension of time pursuant to s23A of the LAA.
Summary of findings
12On the date of the transport accident, Mr Tiba and his treating doctors were aware of all injuries suffered in the accident. The injuries in Mr Tiba’s claim for compensation included a closed head injury.
13No injury manifested itself after the date of the transport accident within the meaning of s93(19) of the TAA.
14Mr Tiba’s cause of action accrued on the day of the transport accident.
15Mr Tiba is granted an extension of time in which to commence proceedings.
The hearing
16Written submissions were provided in support of Mr Tiba’s contention,[9] which contained three alternative propositions:
(a) Mr Tiba’s cause of action did not accrue until it was “complete” and it was not complete until he could plead all injuries including the ABI diagnosed on 22 March 2015 by Dr Amanda Nielsen. Senior Counsel relied on Central Electricity Generating Board v Halifax Corporation;[10] (“Halifax”)
(b) Mr Tiba’s cause of action did not accrue on the date of the transport accident, but in accordance with s93(19) of the TAA. It accrued “on a day on which the injury first manifests itself”, being 22 March 2015 when an ABI was first diagnosed;
(c) if the Court determined that the cause of action accrued on the date of the transport accident, then Mr Tiba applied for an extension of time pursuant to s23A of the LAA. In order to succeed in his application for extension of time, Mr Tiba must satisfy the Court that it is just and reasonable to extend the time beyond the six-year limitation period.
[9]Plaintiff’s Outline of Submissions, dated 7 March 2024
[10][1962] 3 All ER 915 (“Halifax”)
17Two affidavits of Mr Tiba were tendered and he was cross-examined.
18In addition, an affidavit of Mr Tiba’s previous solicitor, Mr Angelo Grando, was tendered, but no cross-examination occurred, as Mr Grando was in hospital.
19Mr Tiba’s current solicitor swore an affidavit which was tendered in evidence, and he was also cross-examined.
20I have considered all the tendered and oral evidence, and the submissions of counsel, but I shall only refer to the materials to the extent necessary.
21No submissions were made by either party regarding Mr Tiba’s credit or reliability. I therefore make no findings about this aspect of his presentation and have taken his evidence at face value. However where there has been a conflict between the contents of his affidavit and medical records, I have preferred the medical records[11].
[11]For instance, in his serious injury affidavit sworn on 9 March 2017, Mr Tiba deposed to having spent six weeks at the Royal Melbourne Hospital and two months at Dorset Rehabilitation Hospital. This was not consistent with the medical records which provided that he was admitted to the Royal Melbourne Hospital on 27 May 2011 and discharged on 6 June 2011 and was admitted to Dorset Rehabilitation Centre on 8 June 2011 and discharged on 18 June 2011 PACB 335-337, PACB 208
Evidence relating to the timing of the accrual of Mr Tiba’s cause of action
22Mr Tiba swore two affidavits, the first on 9 March 2017 in support of his application for a serious injury certificate and the second on 3 November 2023, in support of his summons and application for extension of time.
23The first affidavit attests to having suffered a head injury in the transport accident, with the following consequences:
“Since suffering my head injury I have been a completely different person. I am not my old self. I am not as sharp as I used to be. My thought processes and reactions are slower. I think differently now. I get angry, bored and frustrated easily and quickly. I cannot focus on tasks for too long. I am easily confused. My concentration and memory are not as good as before. I forget things, simple things like daily tasks, and miss appointments with, for example, Centrelink and the Corrections Office…”[12]
(Emphasis added.)
[12]PACB 33-34 at paragraph [9]
24Mr Tiba was not cross-examined on any matters touching upon the question of manifestation of injury after the transport accident. However, the medical evidence clearly establishes that all of Mr Tiba’s injuries were present at the time of the accident.
Medical evidence
25On 27 May 2011, the day after the transport accident, a “CT Head: Non Contrast” was performed on Mr Tiba. The findings were reported as:
“Right frontal sinus fracture with fracture lines extending through the inner and outer table and extending into the superior orbit and ethmoidal sinuses. Associated fluid demonstrated in the frontal sinuses and ethmoidal sinuses. Radio opaque scalp foreign body over frontal sinus in scalp.
Pneumocephalus present. Tiny Right frontal lobe contusion measuring 3 mm demonstrated just posterior to the frontal bone fractures.
No evidence of acute ischaemia. The ventricles are normal.”[13]
[13]PACB 288
(Emphasis added.)
26On 6 June 2011, a discharge summary completed by Dr Knowles diagnosed right acetabular fracture, right frontal bone fracture, right frontal contusion and facial lacerations.[14]
[14]PACB 277
27On 12 June 2011, Dr Sandra Farquharson, consultant physician in rehabilitation medicine, signed a TAC medical certificate, in which a diagnosis of “CHI and R frontal contusion” was nominated.[15] Dr Farquharson provided the following comment:
“TAC funding for neuropsychology assessment, cognitive deficits & clinical psychology counselling”[16]
(Emphasis added.)
[15]PACB 230
[16]Ibid
28On discharge from the hospital, Mr Tiba was referred for, but did not attend, the ABI clinic for assessment.[17]
[17]PACB 336-337
29Counsel for the TAC submitted, and I accept, that “CHI” stands for “closed head injury”. It is clear that “# R Frontal bone” is a reference to a skull fracture (on the front of the skull to the right). So much is clear from the CT scan of Mr Tiba’s head carried out on 2011.
Claim for compensation
30On 10 June 2011, Mr Tiba signed a TAC claim form. In that form, the following injuries were said to arise from the accident:
“(Pain in elbow) (Right) , (Hip pain) (Right) , (Musculoskeletal chest pain) , (Scalp injury) , (Neck pain) , (Backache)”[18]
and
“# R) FRONTAL BONE, # R) ACETABULUM, # FEMORAL HEAD R, CHI – R) FRONTAL CONTUSION”[19]
(Emphasis added.)
[18]PACB 163 – this part of the form was typed.
[19]PACB 163 – this part of the form was handwritten.
31The Dorset Rehabilitation Centre Progress Notes contain an entry dated 10 June 2011 stamped “Social Work” which reads, in part, “[a]ssisted Pt to complete TAC Claim Form … & mailed original to TAC”.[20] It is probable that the handwritten portion of the form[21] was completed by this person.
[20]PACB 305
[21]See footnote 19
Submissions of the parties
32The first submission made on behalf of Mr Tiba was that his cause of action did not accrue until it “was complete”. Senior Counsel for Mr Tiba relied on Halifax. I understood that by “complete”, Senior Counsel meant “the full array of injuries” being known.
33Halifax was a decision of the House of Lords dealing with the Limitation Act 1939 (UK) and the Electricity Act 1947 (UK), in which the question of the true construction of s2 of the Limitation Act 1939 (UK) pertaining to an action for “recovery of a sum of money by virtue of any enactment”, for which a period of six years was prescribed, was under consideration.
34In Halifax, Lord Reid and Lord Guest both considered what was meant by “a cause of action accruing” and said:
“The date when a cause of action accrues may be said to be the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment. … .”[22]
[22]Halifax at 919 (per Lord Reid) and at 923 (per Lord Guest)
35Senior Counsel for Mr Tiba submitted that the relevant day was 15 March 2015, when Dr Nielsen diagnosed an ABI. That diagnosis, it was submitted, was an existing fact, which, if traversed, it would be necessary for Mr Tiba to prove in order to support his right to judgment.
36Counsel for the TAC submitted that Mr Tiba’s cause of action accrued on the day of the accident. In particular, no injury manifested at any later time because Mr Tiba was aware of all of his relevant injuries (including the head injury) when he lodged his claim[23] and did not need to wait for any diagnosis.
[23]T79-80
37Senior Counsel for Mr Tiba referred to a number of cases in Australia citing Halifax.[24] However, none of them considered the TAA or s93(19).
[24]Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780; Barber v De Prima (2018) 97 NSWLR 932; McQueen v Mount Isa Mines Ltd [2018] 3 Qd R 1; Vanger v Bozzato & Anor [2012] SASC 227; Commonwealth v Vero Insurance Ltd (ACN 005 297 807) (2012) 291 ALR 563
Analysis
38The correct starting point for considering the law about a matter is the statute (where it exists). It is not the common law broadly and it is not even judicial pronouncements on the statute.[25]
[25]Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission (2003) 216 CLR 1, at paragraph [24] (per Gleeson CJ, McHugh, Gummow and Hayne JJ)
39Section 35(1) of the TAA (relevantly) provides that:
“Persons entitled to compensation
(1) A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act if––
(a) the accident occurred in Victoria; … .”
(Emphasis added.)
40In the absence of any superior court authority applying Halifax to the TAA, and in light of s35, I consider the question of when Mr Tiba’s cause of action arising from the transport accident accrued is to be answered by reference to the TAA and not by reference to Halifax.
41If I am wrong about that, I consider Halifax does not assist Mr Tiba to establish a cause of action arising on a day other than the date of the accident. In that case, Lord Hodson referred to a number of illustrative cases in support of the proposition that “time begins to run under the statute of limitation from a moment when the plaintiff cannot prove all that he has to prove to obtain judgment”.[26]
[26](Op cit) at 922. Two examples were set out by way of illustration by Lord Hodson in Halifax at 922. The first, Meyappa Chetty v. Supramanian Chetty [1916] 1 A.C. 603, outlines “the case of an executor, who derives his title to sue because the property vests in him by the will of a testator. He has a cause of action to get in the property, although he cannot get judgment until he has obtained probate and thus made good his title … This is a procedural requirement, and is a useful illustration of a case where time begins to run under the statute of limitation from a moment when the plaintiff cannot prove all he has to prove to obtain judgment”. The second, Haylock v. Sparke ((1853) 1 E. & B. 471), “which shows that a cause of action for false imprisonment arises when the act complained of happens, although the action itself cannot be brought until after the conviction is quashed”.
42I consider that, from the day of the accident, Mr Tiba was in a position to file a statement of claim which would have met the test in Halifax. Such statement of claim was “capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment”.[27] The reason for this is twofold:
(a) in his claim form dated 10 June 2011, Mr Tiba was asked to list “all [his] injuries arising from the transport accident”. Among the various injuries listed, Mr Tiba (or the person assisting him), included “CHI” (closed head injury) and “R) frontal contusion” (right frontal contusion).[28]
(b) Mr Tiba’s behavioural and cognitive problems attributable to the accident, existed and were apparent to him and those around him, from the date of the accident. He could have pleaded those consequences without a formal diagnosis.
[27](Ibid) at 923; also see footnote 24.
[28]PACB 163, under heading 17 “your injury details”.
43I reject Mr Tiba’s argument based on Halifax and the assertion that his cause of action was not “complete” until he was diagnosed with an ABI in 2015.
Did Mr Tiba’s ABI “first manifest itself” in March 2015?
Applicable legislation
44Pursuant to s5(1)(a) of the LAA, the relevant limitation period is “six years from the date on which the cause of action accrued”.
45Pursuant to s93(19) of the TAA:
“Notwithstanding anything to the contrary in this Act, for the purposes of the Limitation of Actions Act 1958, the cause of action in respect of an injury arises on the day of the transport accident or on the day on which the injury first manifests itself.”
(Emphasis added.)
46Pursuant to s93(20) of the TAA:
“For the avoidance of doubt it is hereby declared that all the provisions of this section contain matters that are substantive law and are not procedural in nature.”
47“Injury” is defined by s3(1) of the TAA, which provides:
“‘Injury’, except in Part 10, means physical or mental injury and includes nervous shock suffered by a person who was directly involved in the transport accident or who witnessed the transport accident or the immediate aftermath of the transport accident.”
48I consider s93(19) of the TAA provides two alternative days of commencement of a cause of action in respect of injury arising from a transport accident. The first is the day of the accident and the second is the day on which the injury first manifests itself.
49The second possible commencement date is alternative to the first. The use of the word “or” is disjunctive. It provides a choice between two mutually-exclusive possibilities.
50A number of provisions in the TAA contain references to these two alternative possibilities. For the purposes of this discussion, it is immaterial that they feature in different Parts;
(a) s3(4) provides that:
“If an injury resulting from a transport accident does not manifest itself at the time of the accident, a reference in this Act to 18 months after the accident is a reference to 18 months after the injury first manifests itself”;[29]
[29]This provision is found in Part 1 – Preliminary
(b) s43(1) provides that:
“The Commission––
(a)is not liable to pay compensation under this Part to an earner injured as a result of a transport accident in respect of loss of earnings during the first five days after the accident or after the injury first manifests itself, whichever last occurs, in respect of which, or any part of which, the earner suffers any loss of earnings as a result of, or materially contributed to by, the injury; …”;[30]
[30]This provision is found in Part 3 – Compensation
(c) s46A(1)(a) provides that:
“The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident ….
(a) if the person was not a minor when the accident occurred–
(i) when the injury stabilises; or
(ii) 3 years after the accident, or 3 years after any injury
first manifests itself (as the case may be)–whichever occurs first”;[31] and
[31]Ibid
(d) s68(1)(a) provides that:
“(1) A person–
(a) who is injured…
…
as a result of a transport accident to which Part 3 applies may make a claim for compensation under that Part within one
year–(c) after the accident or death; or
(d) in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury first manifests itself.”[32]
[32]This provision is found in Part 3 – Claims Procedure
51The purpose of the TAA is to establish a scheme for compensation in respect of persons who are injured or die as a result of transport accidents.[33] In line with that purpose, the focus of the provisions is injury arising from a transport accident.
[33]Pursuant to s1
52The provisions set out above clearly demonstrate Parliament’s intention to provide for injuries arising from an accident. They make clear that where no injury manifests itself at the time of the accident, then the provisions relating to time limitations focus on the alternative position of the date on which the injury first manifests itself.
Submissions on behalf of Mr Tiba
53Senior Counsel submitted that the original claim made no reference to any injury to the frontal lobe. In particular, Senior Counsel submitted that “CHI” and “R frontal contusion” listed as injuries from the transport accident in the claim form,[34] were not a reference to a frontal lobe contusion because:
frontal lobe damage is “different from a contusion. A contusion is a minor trauma, it’s not even a haemorrhage”[35] and “[a] lobe is behind the skull … A contusion is in front of the skull”.[36]
[34]PACB 163
[35]T81, L19-20
[36]T82, L31 – T83, L2
54Senior Counsel also relied on Moules v Transport Accident Commission[37] in support of his proposition that Mr Tiba’s ABI did not first manifest itself until it was diagnosed, because an ABI is not the same thing as a head injury.
[37][2021] VSC 436 (“Moules”)
55There are two fundamental flaws with these submissions. The first is the medical evidence does not support them. The second is that Moules does not assist Mr Tiba, because the head injury (and its consequential impact on his behaviour) were all present at the time of the accident and manifest to the eyes of anyone who observed Mr Tiba and/or who conducted medical tests.
56Dealing with the first flaw, there is no evidence before the Court in support of the submission that the head injury and ABI are different in the way alleged. The evidence, such as it is, supports a finding that Mr Tiba’s ABI is a consequence of the head injury in much the same way that any external trauma may cause damage to internal organs.
57On 22 March 2015, Dr Nielsen diagnosed an ABI. Dr Nielsen’s was the only report in evidence which dealt specifically with this diagnosis. Her report provides:
“Behaviourally, there was overwhelming evidence indicating that Mr Tiba’s executive functions are impaired … Mr Tiba has impaired functioning of the frontal lobes of the brain.
The aetiology of this impairment is most likely the frontal lobe injury sustained in the MVA in 2011. Both Mr Tiba and his mother gave similar accounts of Mr Tiba’s behaviour change following the accident. … .”[38]
[38]PACB 198-199
58Dealing with the second flaw, the medical evidence before the Court establishes that all behavioural consequences attributed to the ABI existed from the time of the transport accident and the only thing which did not exist was the diagnosis of ABI. Therefore, Moules does not support the submission being made.
59In Moules, O’Meara J considered the proper construction and application of s68 of the TAA, which prescribes a one-year time limit from the date of the accident within which a claim for injury arising from a transport accident must be made. Section 68(1)(d) provides a qualification to that time limit:
“in the case of injury, if no injury manifested itself at the time of the transport accident, after any injury manifests itself.”
60At paragraph 102 of Moules, O’Meara J said:
“This is another way of saying what is evident from the reasoning of his Honour in Hyland: ‘manifestation’ of injury at a particular time does not necessarily depend upon a diagnosis of injury at or in relation to that time. What matters is that injury resulting from the transport accident was objectively ‘manifest’ at that time; that is, externally to the mind of any particular witness. On the whole of the evidence, an injury resulting from a transport accident – even a psychiatric injury – might be ‘manifest’ even if no precise, or perhaps any, diagnosis has been proffered.”
(Emphasis added).
61The medical evidence establishes that the day after the transport accident, Mr Tiba was diagnosed by CT scan with:
“… Tiny Right frontal lobe contusion measuring 3 mm demonstrated just posterior to the frontal bone … .”[39]
(Emphasis added).
[39]PACB 288
62This disposes of Mr Tiba’s submission that the contusion was at the front of the skull and shows that the contusion was to the frontal lobe, inside the skull.
63Following the CT scan, Dr Farquharson diagnosed right frontal contusion with cognitive deficits attributable to the transport accident.
64During his rehabilitation at Dorset Rehabilitation Centre, Mr Tiba complained of memory loss and his best friend complained of changes to Mr Tiba’s behaviour.[40]
[40]PACB 305-306
65On 5 July 2011, and likely on 26 July 2011, Mr Tiba failed to attend his appointments at the ABI clinic. Had he attended, formal assessment could have been conducted, and the cognitive consequences of the frontal lobe contusion diagnosed by CT scan could have been measured.
66Senior Counsel for Mr Tiba submitted that the assessment by Dr Nielsen in March 2015 was “the first time that the permanent condition of the plaintiff’s brain had been assessed some years after the event”.[41] The argument was then formulated on the basis that something which needed to be pleaded (ABI) was only capable of being pleaded in March 2015[42] and, accordingly, time did not begin to run until the ABI diagnosis in March 2015.
[41]T85, L21-23
[42]T85-86
67I reject that submission. The frontal lobe contusion was diagnosed and present at the time Mr Tiba lodged his claim with the TAC and various consequences of that contusion, such as impaired memory and behavioural problems, were also present from the date of the accident and capable of being pleaded.
68Dr Nielsen specifically asked Mr Tiba whether he had experienced any changes to his behaviour, personality or cognition since the accident. Mr Tiba answered that he thought differently, he was not the same as he had been, he gets easily angry, bored and frustrated. Mr Tiba’s mother told Dr Nielsen that his behaviour had changed and the family attributed it to the head injury he had sustained in the accident.[43]
[43]PACB 193-194
69According to Dr Nielsen, behavioural changes provided overwhelming evidence that Mr Tiba’s executive function was impaired, and in combination with his inability to concentrate on a task and emotional lability, indicated “impaired functioning of the frontal lobes of the brain”, the aetiology of which was “the frontal lobe injury sustained in the MVA in 2011”.[44]
[44]PACB 198-199
70Mr Tiba’s affidavit sworn on 9 March 2017 provides a series of behavioural, cognitive and mood problems arising “since suffering [his] head injury”.[45]
[45]PACB 33
71I find the frontal lobe contusion injury attributable to the accident and its consequences on Mr Tiba were known, documented on CT scan and in medical reports at the time of the accident.
72A diagnosis of an injury made years after the injury is not a manifestation of an injury for the purposes of s93(19) of the TAA.
73For the above reasons, I find that Mr Tiba’s cause of action accrued on the date of the accident and not at some later time, and he was out of time when the Writ was issued. I therefore need to consider Mr Tiba’s application under s23A of the LAA.
Principles relevant to applications under section 23A of the LAA
74The LAA confers a discretion on the Court to exercise its powers in extending the time period in which a claim can be made, subject to the notion that it is “just and reasonable so to do”.[46]
[46]Pursuant to s23A(2)
75Pursuant to s23A, in exercising the powers conferred on it by reason of the above, the Court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following matters relevant to the application:[47]
(a) the length of and reasons for the delay on the part of Mr Tiba;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the TAC;
(c) the extent to which Mr Tiba acted promptly and reasonably once he knew that the act or omission of the TAC, to which the injury of Mr Tiba was attributable, might be capable at that time of giving rise to an action for damages; and
(d) the steps, if any, taken by Mr Tiba to obtain medical, legal or other expert advice, and the nature of any such advice he may have received.
[47]Pursuant to s23A(3)
76Mr Tiba bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[48]
[48]Griffiths v Nillimbuk Shire Council [2022] VSCA 212 (“Griffiths”), at paragraph [68]
77The TAC bears an evidentiary onus to raise considerations telling against the exercise of the discretion in its favour.[49]
[49]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Taylor”), at 547 (per Toohey and Gummow JJ)
78The question whether prejudice to a prospective defendant is likely to frustrate a fair trial is to be answered by reference to the situation at the time of the application to extend time.[50]
[50]Taylor, at 548
79The possibility that further delay is likely to be incurred prior to the trial of the Mr Tiba’s claim is also a relevant factor to be weighed in the application.[51]
[51]Edwards v Kennedy and ors [2009] VSC 74, at paragraph [83]
80An important consideration in the resolution of the application is the question whether a fair trial can be had. That is, a trial which is fair to the TAC as well as Mr Tiba.[52]
[52]Kone Elevators Pty Ltd v Popa [2006] VSCA 26, at paragraph [35]
81The main issue in this application is that Mr Tiba’s solicitors did not issue proceedings in time, despite having the conduct of his matter.
Evidence
82In his affidavit in support of the Serious Injury Application sworn in November 2023, Mr Tiba deposed to having developed a drug addiction (“ice”) which led to criminality and imprisonment.[53]
[53]PACB 35, at paragraph [13]
83In his affidavit in support of the extension of time application, Mr Tiba deposed to the following:[54]
(a) he has been incarcerated on multiple occasions since the transport accident;
(b) Grando and Breheny solicitors acted for him in relation to a lump sum and damages claim against the TAC, but rarely contacted him about the claim;
(c) he solely relied on Grando and Breheny to prosecute his claim for damages;
(d) on 19 June 2020, Grando and Breheny filed a notice of ceasing to act, and he was contacted by them and advised that his solicitor had been diagnosed with a serious medical condition and will no longer practise as a solicitor;
(e) on 11 May 2021, Carbone Lawyers filed a notice of solicitor acting (on his behalf);
(f) he had been incarcerated since 2014 and remained in prison throughout the majority of the proceedings (and was in custody at the time the affidavit was sworn); and
(g) had he known about the limitation period, he would have instructed his solicitors to file the Writ in time.
[54]PACB 51-52
84In his oral evidence, Mr Tiba said:
(a) he had not been told about the statute of limitations by Grando and Breheny, he first heard about it when he went to Carbone Lawyers, after Mr Grando told him he could no longer act for him as he had been diagnosed with a serious medical condition;[55]
(b) if he had been told there was a limitation period, he would have instructed his lawyer to issue proceedings as soon as possible, and if it had not been done in time, it was the solicitor’s fault;[56]
(c) Carbone Lawyers started acting in May 2021 and “[e]verything that I had received from Grando was given to Carbone”.[57] A number of different solicitors have handled the file since then.[58] Carbone told him there was an issue about an extension of time being needed;[59]
(d) he first became aware that his claim was out of time when Wasif Hajje from Carbone Lawyers became his lawyer;[60] and
(e) Mr Hajje told him that, if the extension-of-time application failed, then he has a right to sue his former solicitors.[61]
[55]T13-14
[56]T21
[57]T22, L1-2
[58]T27
[59]T22
[60]T44
[61]Ibid
85Mr Tiba tendered an affidavit sworn by his first solicitor, Mr Grando, on 7 March 2024.[62] In that affidavit, Mr Grando deposed to currently being in hospital. The explanation or “reason for the delay” in issuing a Writ was that, after the TAC issued a serious injury certificate, Mr Grando was hopeful of settling the claim and undertook negotiations to that end. The Writ was issued after it became apparent that the matter would not resolve. During that time, the TAC did not raise the limitation period.[63]
[62] PACB 338-339
[63]PACB 339
86Mr Hajje swore two affidavits and was cross-examined. In summary, his evidence was as follows:
(a) Carbone Lawyers first contacted Mr Tiba in prison in May 2021;
(b) on 25 May 2021, Carbone Lawyers received a copy of the Defence from the TAC;[64]
(c) In March 2023, Carbone Lawyers received the previous solicitor’s file from Mr Tiba’s wife “Jodi”. The file contained only medical reports and an IB claim. There were no letters of advice or files notes on that file;[65]
(d) Carbone Lawyers ceased acting in March 2023, but due to administrative error did not notify the Court; and
(e) he was appointed Mr Tiba’s solicitor in mid-to-late 2023;
(f) on 17 August 2023, he made a phone call to the prison to seek instructions from Mr Tiba about the application for extension of time. On 3 November 2023, he attended the prison to have the affidavit in support sworn by Mr Tiba.
[64]T56
[65]T59-60
87Court records were tendered,[66] which show that Grando and Breheny filed a notice ceasing to act on 18 June 2020, and on 12 May 2021 Carbone Lawyers were the solicitors on the record. They filed a notice ceasing to act on 2 March 2023, but this was rejected by the Court’s Registry.[67]
[66]PACB 340
[67]The Registry rejected the Notice on the basis of non-compliance with r20.03 and r34A.25 of the County Court Civil Procedure Rules 2018
Submissions of the parties
88Counsel for the TAC made three submissions:
(a) first, that any question of the merits of the application would be dealt with at the trial and are not relevant to an application to extend time;[68]
(b) second, that “delay” for the purposes of s23A, is the delay between the accrual of the cause of action and the filing of the application for extension of time. In the circumstances of this case, the relevant dates are 26 May 2011 and 23 November 2023, a period of twelve-and-a-half years;[69] and
(c) third, that the TAC had suffered general prejudice due to the effluxion of time[70] and the better course was for Mr Tiba to sue his solicitors, neither of whom had provided a proper explanation for the delay in lodging the application for extension of time. No specific prejudice was alleged.
[68]T68-69
[69]T67
[70]T26, L1-12
89Senior Counsel for Mr Tiba made three submissions:
(a) first, that the cut-off point for the purpose of 23A (in the circumstances of this case) is between the accrual of the cause of action and the filing of the Writ, because that is when the processes of the Court had been activated. Time stops when the Writ is filed[71];
(b) second, that any prejudice is “completely negated” on the lodging of the Serious Injury Application which placed the TAC on notice about the claim and in a position to investigate it;[72] and
(c) third, that Mr Tiba had placed his affairs in the hands of his solicitors and he was entitled to rely on them to file proceedings on his behalf in time. Any failure to do so was not attributable to Mr Tiba’s actions or omissions.
[71]T32-33
[72]T89-90
Merits of the negligence claim
90Dealing with the TAC’s first submission, the authorities require that there be at least some evidence before the Court on the application to extend time which supports the existence of the applicant’s cause of action.
91In Wintle v Stevedoring Industry Finance Committee and Ors,[73] Ashley J considered an application to extend time under s20(2) of the LAA in relation to a claim under the Wrongs Act 1958 (Vic). His Honour said:
“It 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. Approaching the matter, as I have said I would do, on the basis of the applicability of the 23A analogy, 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’; or again ‘whether evidence is available which gives the applicant a reasonable prospect of … establishing the cause of action’.”[74]
(Footnotes omitted.)
[73][2002] VSC 265
[74](Ibid), at paragraph [33]
92Mr Tiba’s Statement of Claim pleads that, on 26 May 2011, he was a passenger in a vehicle driven by the deceased driver and that the collision was caused by the negligence of the deceased driver in failing to keep a proper look out, failing to keep the vehicle under control, failing to apply the brakes in time, and failing to steer the vehicle so as to avoid the collision.[75]
[75]Statement of Claim, dated 12 July 2018 at PACB 133
93In the circumstances, I find that there appears to be on the face of it, a reasonable prospect of Mr Tiba establishing a cause of action in negligence.
Delay
94Dealing with the TAC’s second submission, it is settled law in Victoria that, for the purposes of considering the length of the delay in s23A(3)(a) of the LAA, the relevant period is the period between the accrual of the cause of action and the making of the application for extension of time.[76] In this case, it is between 26 May 2011 and 13 November 2023.
[76]Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 (“Repco”), Koumorou v Victoria [1991]
2 VR 265 (“Koumorou”), Horan v Melbourne College of Hair and Beauty Culture Pty Ltd (Unreported, VSCA, 22 June 1995, Brooking, Charles & Callaway JJA); Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614
95Senior Counsel for Mr Tiba submitted that the relevant delay was between the accrual of the cause of action and the filing of the Writ. The basis of the submission is that Koumorou is alleged to have provided for an alternative end point of the delay, namely “the filing of the Writ”. I do not accept that submission.
96In Repco, Smith J, with whom Brooking and Phillips JJ agreed, said:
“… The preponderance of authority in the state favours the interpretation that the delay referred to is the period from the accrual of the cause of action to the making of the application for an extension of time (see Koumorou v State of Victoria [1991] 2 V.R. 265 at 272 and the authorities referred to in that decision).”[77]
[77]Repco, at 11
97In Delai v Western District Health Service,[78] Beach J referred to Koumorou and said:
“… The authorities concerning the meaning of delay in ss 23A(3(a) and (b) hold that the delay referred to in those sections is delay between the accrual of the cause of action and the making of the application for extension of time. … .”[79]
(Footnote omitted.)
[78][2009] VSC 151 (“Delai”)
[79](Ibid), at paragraph [22]
98Therefore, when considering the question of delay, the relevant period is twelve years and five months (from 26 May 2011 to 13 November 2023).
99In considering whether it is just and reasonable to extend the time under s23A(2) of the LAA, the Court can take into account the length of, and the reasons for, the delay under s23A(3)(a), and the extent to which, having regard to the delay, whether there is, or is likely to be, prejudice to the TAC under s23A(3)(b).
Section 23A(3)(a) – the length of and the reasons for the delay
100Based on the evidence, the reasons for the delay are as follows:
(a) for significant periods of time, Mr Tiba was incarcerated[80] or living a chaotic lifestyle, which made it difficult for him to have any significant input into his legal affairs. In particular, between 12 October 2017 and 16 January 2024, Mr Tiba was continuously on remand and then undergoing sentence (seven years and six months, with a minimum non-parole period of five years) for various serious offences;[81]
(b) on an unknown date (but likely around 2017),[82] Mr Tiba retained Grando and Breheny as his solicitors and relied on them to prosecute his claim;
(c) Mr Tiba’s solicitor, Mr Grando, filed an application for serious injury and a certificate was granted on 9 March 2017 within the limitations period;
(d) after receipt of the Serious Injury Certificate, Mr Tiba had less than two months to file his writ within the limitation period. During this time, Mr Grando was attempting to resolve the claim by negotiation with the TAC, when he was diagnosed with a serious medical condition and appears to have missed the limitation period; and
(e) Mr Tiba then hired Carbone Lawyers to act for him. There is no explanation for the failure by Carbone to file an application for extension of time between 12 May 2021 and 13 November 2023.
[80]Various periods spent in custody are outlined in the Corrections Victoria Sentence/Remand Report at PACB 9-13, dated 14 August 2023. They are as follows: 12 July 2014 to 2 October 2014, 16 February 2015 to 24 September 2015, 29 June 2016 to 23 October 2016, and 12 October 2017 to 11 May 2023, when the report ends. However, Mr Tiba told the Court he was released on 16 January 2024 (see T8).
[81]Ibid
[82]Mr Tiba deposed that he retained Grando and Breheny to lodge an impairment benefits claim for him (PACB 52); the Angelopoulos affidavit also provides that this was lodged in February 2017 (DCB 5).
Section 23A(3)(b) – prejudice
101In order to determine the effect of any delay, the Court must take into account the period between the cause of action accruing and either the issue of the Writ or the application to extend time. In addition, for proceedings under the TAA, where a serious injury certificate or the leave of the Court is required, the lodgement of the Serious Injury Application marks the end point for determining the effect of the delay. The reason for this is that the application, or the issue of the Writ or the Summons, all serve to place the TAC on notice of the potential claim.[83]
[83]Sparkes v Hylemit Pty Ltd [2016] VSC 453, at paragraph [30]
102In this case, counsel for the TAC relied on general prejudice only, that is, the type of prejudice which can arise with the passing of time, being that, the longer the delay, the more likely it is that the case will be decided on less evidence than was available to the parties at the time the cause of action arose.[84]
[84]Taylor, at 548
103In Griffiths, the Court of Appeal said that the purpose of the legislative conferral of the discretion (to extend time) is to ensure a fair trial on the merits of the case. If a defendant is considered to be unable to fairly defend itself, or is otherwise prejudiced (due to loss of evidence for example), that can be fatal to the plaintiff’s application for extension of time.[85] That is not the submission that was made on behalf of the TAC in this application.
[85]Griffiths, at paragraphs [164]–[165]
104The Serious Injury Certificate was granted within the limitation period. The Writ was issued on 12 July 2018, but not served on the TAC until 2 July 2019.[86]
[86]DCB 3, Angelopoulos affidavit at paragraph [13]
105I find the extent of any prejudice is to be considered by reference to the date on which the TAC was served with the Writ, as the focus of the enquiry is notice of the claim. However, I bear in mind that the Serious Injury Application issued within the limitation period would also have placed the TAC on notice of the existence of Mr Tiba’s claim for injury arising from the accident.
106No submission was made that anything done, or not done, between the time of the service of the Serious Injury Application and the service of the Writ, amplified the prejudice.
The extent to which Mr Tiba acted promptly and reasonably once he knew that he had a claim
107Mr Tiba lodged his TAC claim for statutory benefits from the hospital days after the accident. There appears to have been little activity on the question of the common law damages until March 2017, when an impairment benefits claim and a serious injury application were lodged on his behalf by Grando and Breheny solicitors.[87]
[87]DCB 2-3, Angelopoulos affidavit
108From 12 July 2014, Mr Tiba was frequently incarcerated on a variety of charges, including for drug-related matters.
109Mr Tiba’s unchallenged evidence was that he placed his affairs in the hands of his solicitors and was entirely unaware of any limitation period until well after its expiry. In the absence of evidence such as letters of advice or file notes from Grando and Breheny’s file, and in the absence of any challenge to his credit or reliability, I accept this evidence.
110I find that, despite his personal difficulties and trouble with the law, Mr Tiba acted within the limitation period to instruct and retain solicitors to act on his behalf in relation to his claim. I find this to be both prompt and reasonable given his circumstances.
The steps taken to obtain medical, legal or other expert advice and the nature of such advice
111Mr Tiba relied on Grando and Breheny to commission medical reports and he attended for various assessments. He failed to attend the ABI clinic at the Epworth hospital in July 2011, but otherwise appears to have attended for various medical assessments, which ultimately enabled him to obtain a serious injury certificate from the TAC.
112There was no evidence from the Grando and Breheny file, nor from Mr Grando’s affidavit, about the legal advice given to Mr Tiba.
113In June 2020, Mr Tiba was informed that Grando and Breheny had ceased to act.
114In May 2021, Mr Tiba retained Carbone. During the intervening period he was incarcerated and Victoria was under a strict COVID-19 regime. Prisoners around the State were being kept in much stricter than usual conditions.
115The evidence from Mr Hajje focused on the extension of time application. Once Mr Hajje took over the file, he acted promptly to issue the application.
Is the better course for Mr Tiba to sue his solicitors?
116Counsel for the TAC submitted Mr Tiba could sue both Grando and Breheny and Carbone. In particular, he submitted that Carbone could be sued because they elected to ignore the statute of limitations when they were first retained, even though they were in possession of the Defence as early as 25 May 2021.[88]
[88]T73-74
117Senior Counsel for Mr Tiba submitted that, while there may be a right to sue the solicitors and this is a factor to take into account, it should be taken extremely carefully. He relied on two cases, Repco and Gordon v Norwegian Capricorn Line (Australia) Pty Ltd.[89]
[89][2007] VSC 517 (“Norwegian Capricorn”)
118I accept the submissions made by Senior Counsel for Mr Tiba.
119In Delai, Beach J considered both Repco and Norwegian Capricorn and said:
“… While the existence of a potential claim is relevant, it is not, in my view, a matter to be accorded great weight in the performance of the synthesis required by s 27K. Further, there are two additional reasons why only limited weight should be accorded for this matter. They are:
(a) First, any damages recovered from the plaintiff’s solicitors would only be for the loss of the right to sue the current defendants rather than damages for the injuries actually sustained.
(b) Secondly, there are added costs and an added complexity associated with bringing a new claim against the plaintiff’s solicitors, rather than the present proceeding.”[90]
[90](Op cit), at paragraph [34]
120I pause to note that no evidence was led before me of any admission of negligence on the part of either of the solicitors and no evidence regarding investigation of what issues may arise in such a claim.
121Any delay or neglect on the part of Mr Tiba’s solicitors should not be visited on Mr Tiba, nor should any possible claim against him lead to a refusal to extend the limitation period.[91]
[91]Millard v Victoria [2006] VSCA 29, at paragraph [43]
Synthesis of all the matters
122Prior to the transport accident, Mr Tiba struggled at school, but managed to complete Year 10 and failed Year 11.
123In the accident, Mr Tiba suffered a traumatic head injury which appears to have left him with cognitive deficits and behavioural problems.
124In March 2015, Mr Patrick Newton described him as a man with low-to-average intelligence and who is immature for his age. Mr Newton noted a history of a substance-abuse problem, commencing at the age of seventeen with cannabis, and graduating to “ice” at age nineteen. The drug use escalated after the transport accident, such that Mr Tiba also suffered severe psychological and emotional instability and began to take other drugs to assist him to sleep.
125Given his chaotic lifestyle, limited education, drug problems and history of incarceration, it was not unreasonable for Mr Tiba to rely on his solicitors to prosecute his claim.
126I consider that this range of circumstances, together with the lengthy periods of incarceration, are sufficient to warrant an extension of time. However, there are two additional factors which support the granting of the extension.
127First, Mr Tiba’s first solicitor became afflicted with a serious medical condition and missed the limitation period.
128Second, Mr Tiba’s second solicitors delayed filing the application for extension of time for over two years after they began acting for Mr Tiba (although they considered that for some of this time they were not acting).
129The evidence does not allow a finding to be made that either of these two matters are in any way attributable to any act or omission of Mr Tiba. I find he should not be held responsible for any neglect or delay of any of his solicitors.
130I give little weight to the potential prospect of Mr Tiba being able to sue his solicitors.
131Turning now to the question of prejudice to the TAC. With the passage of time, such “general prejudice”, as submitted by counsel for the TAC, is to be presumed to exist. However, there is no specific or material prejudice occasioned by the delay and none was asserted.
132Counsel for the TAC conceded that a significant amount of material pertaining to the transport accident was available to the parties in a Coroner’s brief, following an inquest into the death of the driver.[92]
[92]T73-74
133Any neglect by Mr Tiba’s solicitors should not be visited on Mr Tiba in circumstances where no material prejudice exists by virtue of the delay. I find Mr Tiba has discharged his onus of establishing that it is just and reasonable to grant the extension sought.
134I will hear the parties with respect to the form of order sought and the question of costs.
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