Transport Accident Commission v Damian Murdoch

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0087

TRANSPORT ACCIDENT COMMISSION	Applicant
v
DAMIAN MURDOCH	Respondent

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JUDGES:	BEACH, HARGRAVE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2020
DATE OF JUDGMENT:	28 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 98
JUDGMENT APPEALED FROM:	[2019] VCC 1137 (Judge Ginnane)

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LIMITATION OF ACTIONS – Transport accident – Personal injury – Application for extension of time during which action may be brought – Delay – Delay between accrual of cause of action and application – Reasons for delay – Prejudice to defendant – Relevance of consequences of refusal of application – Relevance of existence of medical histories – Adequacy of judge’s reasons – Limitation of Actions Act 1958, s 23A.

ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Causation – Whether judge erred in finding causal link established – Conflicting histories – Applicant’s credit – Adequacy of reasons – No error by primary judge – Appeal dismissed – Transport Accident Act 1986, s 93.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Gorton QC with Mr S E Gladman	Solicitor for the Transport Accident Commission
For the Respondent	Mr S A O’Meara with Mr N Dunstan	Galbally & O’Bryan Lawyers

BEACH JA
HARGRAVE JA
T FORREST JA:

On 24 September 2008, Damian Murdoch was a passenger in a motor vehicle that left the roadway, collided with a tree, flipped, fell down an embankment, and ultimately ended up in a ditch (‘the accident’). Mr Murdoch managed to extricate himself from the vehicle. He did not think he was hurt, and there were no visible indications to the contrary. Subsequently, however, he experienced pain and altered sensation in his left hand and fingers, which he attributed to the accident.

By an originating motion filed in the County Court on 20 December 2017, some nine years after the accident, Mr Murdoch sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986, to commence a proceeding at common law claiming damages in respect of the injury he claimed to have sustained in the accident (‘the serious injury application’). Mr Murdoch’s cause of action being statute barred by a little over three years,[1] he also sought an extension of the period within which he could bring a claim for damages for personal injuries pursuant to s 23A of the Limitation of Actions Act 1958 (‘the extension of time application’).
[1]See s 5(1)(a) of the Limitation of Actions Act 1958. For completeness, we note that Part IIA of the Limitation of Actions Act does not apply to Mr Murdoch’s cause of action, being an ‘action for damages to which Part 6 of the Transport Accident Act 1986 applies’: see s 27B(2)(c) of the Limitation of Actions Act.

The serious injury application and the extension of time application were heard by Judge Ginnane over three days in May 2019. In relation to the serious injury application, Mr Murdoch relied upon paragraph (a) of the definition of ‘serious injury’ in s 93(17) of the Transport Accident Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon was the function of the left arm.

On 30 July 2019, the judge made orders granting both the serious injury application and the extension of time application.[2]
[2]Murdoch v TAC [2019] VCC 1137 (‘Reasons’).
While at Reasons [5], the judge said that Mr Murdoch was ‘entitled to the grant of a serious injury certificate for pain and suffering damages’, the judge in fact made an order granting leave for the bringing of a claim for damages simpliciter in accordance with s 93 of the Transport Accident Act (cf the different statutory provisions, contained in the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013, which govern workplace injuries and the possible granting of leave for the commencement of proceedings claiming pain and suffering damages and/or pecuniary loss damages).

The Transport Accident Commission (‘the Commission’) now seeks leave to appeal against the orders made by the judge. It advances six proposed grounds of appeal.

Proposed grounds 1 to 4 make allegations of specific error in relation to the judge’s reasons for granting the extension of time application. Proposed ground 5 alleges that the judge erred in concluding that the accident was a cause of Mr Murdoch’s injury. This ground relates primarily to the granting of the serious injury application. Proposed ground 6 asserts that the reasons for granting the extension of time application and the reasons for concluding that the accident was a cause of Mr Murdoch’s condition were inadequate.

There is no proposed ground of appeal that puts in issue the seriousness of the applicant’s physical condition.

Relevant background

Mr Murdoch was born in April 1981. After successfully completing his VCE, he undertook a computer science course for a year before changing to a degree course in music. In 2004, he was awarded the degree of Bachelor of Music Performance and Music Industry.

In 2005, he commenced employment as a guitar teacher at Ivanhoe Grammar School. His duties included individual and group tutoring, conducting rehearsals for guitar ensembles, and conducting and performing with various ensembles at school events. He generally worked as a guitar teacher between 25 and 35 hours per week. In addition, he was a guitarist in various bands, including ‘Slam Funk Junction’, ‘Seven’, ‘Weapon’ and ‘The Fury’, which typically performed at bars, pubs, music festivals, and corporate functions.

The accident occurred at about 2:00 pm on 24 September 2008. At the time of the accident, the vehicle in which Mr Murdoch was travelling was being driven by a friend. The next day, Mr Murdoch drove his friend to the Wangaratta Hospital. He did not, however, seek any medical treatment for himself.

Mr Murdoch gave evidence that, about two weeks after the transport accident, he started to experience pain and altered sensation in his left hand and fingers. He said that ‘[t]he pain in [his] hand began within the weeks after the car accident and it was at varying levels of pain, depending on what I would be doing’. He said that he attended Ms Christine Lucas for myopathic treatment a few times in 2008 but that treatment did not alleviate his symptoms. There was no report from Ms Lucas.

On 21 January 2009, Mr Murdoch consulted his general practitioner, Dr Ian Sharrock, for the first time after the accident. He complained of pain in his left hand. Dr Sharrock’s clinical note for that consultation recorded his suspicion that Mr Murdoch had performed ‘[too] much guitar work’, which had led to ‘3 weeks of [pain] and reduced movement in [the] extensors of [the] left hand.’ Mr Murdoch said that he did not mention the accident to Dr Sharrock because, at that time, he did not associate his symptoms with it.

Dr Sharrock referred Mr Murdoch to Mr Anthony Berger, a hand surgeon. In his report dated 17 March 2009, Mr Berger stated that Mr Murdoch presented with ‘unusual pain in his left hand brought on by guitar playing’ and considered that he had ‘an intrinsic tenosynovitis or lumbrical strain within his hand’. Mr Murdoch did not mention the accident to Mr Berger, and he could not explain why he had left blank the section of Mr Berger’s ‘New Patient’ information form that was applicable to a transport accident.

On 6 April 2009, Mr Murdoch began consulting Ms Karen Fitt, a hand physiotherapist, for treatment of his left hand. In her report dated 27 October 2009, Ms Fitt stated that she had assessed Mr Murdoch and treated him over several months before determining that ‘the primary problem was being caused by proximal structures in his neck and thoracic spine & related to [the accident]’. At that point, Ms Fitt referred Mr Murdoch to Ms Jenny Hynes, a specialist musculoskeletal physiotherapist.

On 1 July 2009, Mr Murdoch saw a different general practitioner, Dr Hugh Palmer, who recorded that Mr Murdoch continued to have problems with his left hand; that he had been getting tingling and numbness for two weeks, which came on after sleeping on the ground; and that his symptoms certainly fitted an ulnar nerve compression syndrome.

The first time Mr Murdoch mentioned the accident was during his consultation with Dr Sharrock on 31 July 2009. On that date, Dr Sharrock referred Mr Murdoch to Dr Simon Lam, a consultant physician and rheumatologist. Dr Sharrock’s letter to Dr Lam referred to a seven-month history of pain in Mr Murdoch’s left hand — that is, pain commencing in about early 2009.

In his report dated 7 August 2009, Dr Lam recorded the following history:

[Mr Murdoch] describes being in a major motor vehicle accident in September 2008 when he was a passenger in a car that struck a tree and rolled over, eventually landing on its roof. Fortunately he was able to self-extricate and suffered no major life or limb threatening injury. Of note, he started feeling left sided hand pain in the region between his little and ring finger for a period of two weeks or so around the time of the accident. He cannot recall with any certainty whether this occurred before or after his motor vehicle accident. Fortunately, the symptom settled.
In December 2008, [Mr Murdoch] had a break from his usual employment as a music teacher and had started recording professionally for a week or so when the symptoms in his left hand recurred. Unfortunately, his symptoms were exacerbated by playing guitar. He has tried resting and avoiding guitar playing for periods of up to two months or so. These rests have generally settled his symptoms but unfortunately any return to guitar playing appears to result in his symptoms relapsing.

In early September 2009, Mr Murdoch consulted Ms Hynes. In her report dated 23 October 2009, Ms Hynes relevantly stated:

[Mr Murdoch] presented with a 12-month history of severe and debilitating deep seeded (scil, deep-seated) left hand pain between the fourth and fifth digits, forearm and ulnar border of the hand pins and needles, with associated sensitivity to palpation of the ulnar nerve at the elbow. These symptoms were having a dramatic effect on [Mr Murdoch’s] ability to continue to work as a professional guitarist, both in a performing and teaching capacity. When I reviewed [Mr Murdoch] in my rooms, he had been unable to perform for the past 12 months.
…
[Mr Murdoch] had been involved in a significant [motor vehicle accident] in September 2008, just weeks prior to developing his hand symptoms.
From the description of impact [Mr Murdoch] would have experienced a marked shunt into right cervical side-bending and rotation, resulting in a significant traction effect on the lower part of the brachial plexus.
…
I have no doubt that the [motor vehicle accident] last year was the causal factor in the development of [Mr Murdoch’s] symptoms. It is not uncommon for proximal symptoms and sensitised nerve pathways to develop after such a trauma to the cervical region.

On 17 September 2009, Mr Murdoch made a claim for compensation under the Transport Accident Act, which was subsequently accepted by the Commission.

In his report of 22 October 2009, addressed to the Commission, Dr Sharrock relevantly stated:

The condition and its causation remains a mystery.
The relationship to the [motor vehicle accident] is not clear cut. In the letter I have from the treating rheumatologist Dr Simon [Lam] there is mention of left-sided hand pain between the little and ring finger for two weeks around the time of the accident. In the letter it is not clear if that symptom occurred before or after the accident.
…
To my knowledge [Mr Murdoch] has no past history of injury [or] pain in the left hand.
…
The relationship to the [motor vehicle accident] in September last year is unclear. Certainly there was no history of a problem in his left hand prior to the [motor vehicle accident]. There is mention of symptoms around the time of the accident but the chronology is not clear cut.

In about November 2009, at the suggestion of his sister (a lawyer), Mr Murdoch engaged Maurice Blackburn Lawyers to act on his behalf in relation to his accident claim. That firm continued to act on his behalf for almost three years.

In September 2010, Mr Murdoch moved to Vienna. In early 2011, he formed a band called the ‘Damian Murdoch Trio’. He and the other two band members met once per week to play and rehearse. From December 2011 until mid-2014, the ‘Damian Murdoch Trio’ performed at different locations on 30 to 40 occasions. In addition, in October 2013, the band released an album called ‘Electric Tentacles’, which consisted of songs written by Mr Murdoch.

In July 2011, Mr Murdoch began consulting Dr Stephan Becker, an orthopaedic surgeon, because he continued to be troubled by numbness, pain and weakness in his left hand and arm as well as left-sided neck pain. On 20 April 2012, following an MRI scan that reportedly showed a disc prolapse at C5–6, he underwent a cervical nucleoplasty performed by Dr Becker. His symptoms were initially alleviated by the surgery, but they re-emerged a few days later.

In June 2012, again at the suggestion of his sister, Mr Murdoch terminated Maurice Blackburn’s retainer and engaged Slater & Gordon Lawyers to act on his behalf in relation to his claim. Mr Murdoch received advice from Slater & Gordon both orally and in writing. At his first meeting with Slater & Gordon in June 2012, he was advised of his potential common-law entitlements.

On 2 October 2013, Mr Murdoch consulted Dr Andreas Franczak, a vascular surgeon, for a further opinion about the pain and altered sensation in his left hand and fingers. Dr Franczak arranged for an ultrasound and other investigations, which Mr Murdoch understood showed an arterial block on the left side. Dr Franczak diagnosed arterial thoracic outlet syndrome and recommended surgery to remove his first rib. Mr Murdoch did not undergo the surgery at that time. He said that the surgery was prohibitively expensive, because it was not covered by his health insurance.

On 22 October 2013, Mr Murdoch consulted Dr Peter Ledwon, a neurologist, who diagnosed thoracic outlet syndrome and suggested investigations involving his brachial plexus.

In November 2013, Slater & Gordon lodged Mr Murdoch’s application for a serious-injury certificate with the Commission. In support of that application, he swore an affidavit on 12 November 2013. He deposed (among other things) that:

(a)he had been unable to return to teaching guitar at Ivanhoe Grammar for approximately two weeks after the transport accident;
(b)he had decided to resign from his job in June 2010 because he felt that he could not fulfil his duties to his satisfaction;
(c)he had to give up recording music and touring;
(d)he had to quit his bands ‘Seven’ and ‘The Fury’ because playing live was not possible for him due to the pain; and
(e)his left-hand limitations and pain had prevented him from returning to his music and studio work following the accident.

In December 2013, Mr Murdoch gave up his other jobs and joined the band ‘The Ocean’ as a full-time lead guitarist. From that time until about December 2016, he toured with ‘The Ocean’ at various times ranging from a week to a couple of months in Europe, North America, South America, India, and Australia.

The primary judge found that Mr Murdoch had been untruthful on some of the matters to which he deposed in his affidavit and that, in cross-examination, he had been reluctant to accept his untruthfulness. The matters on which Mr Murdoch lacked veracity included:

(a)his failure to disclose his work with the ‘Damian Murdoch Trio’ and the income derived from that work;
(b)his failure to disclose that he had secured the role of lead guitarist with ‘The Ocean’ in December 2013; and
(c)his statement that he had resigned from Ivanhoe Grammar because he felt that he could not fulfil his duties to his satisfaction when, in truth, he had not resigned, the school had kept his position open for him, and he gave up that position in July 2011 because of the success of his musical career overseas.

By email dated 9 December 2013, Slater & Gordon advised Mr Murdoch that the Commission had rejected his application for a serious-injury certificate.

On 21 January 2014, a solicitor at Slater & Gordon, Ms Susan Accary, informed Mr Murdoch that the Commission had rejected his application because it had obtained access to YouTube videos and other social media that showed Mr Murdoch performing with a guitar.

Mr Murdoch conferred with another solicitor from Slater & Gordon, Ms Betty Alexopoulos, in late January 2014 and with Ms Accary on 19 May 2014.

On 19 May 2014, after considering Ms Accary’s advice, Mr Murdoch instructed Ms Alexopoulos not to make any serious injury application to a court.

Subsequently, on 10 September 2014, Ms Accary wrote to Mr Murdoch setting out her ‘final advice regarding his TAC entitlements’. By that time, Mr Murdoch had participated in a number of discussions with his solicitors about the limitation period applicable to his cause of action. In her letter dated 10 September 2014, Ms Accary relevantly stated:

Serious Injury Application/Common Law Claim
The common law entitled you to claim compensation for:
(i)pain and suffering and loss of enjoyment of life, scarring and disfigurement; and
(ii)loss of earnings,

if you can establish:
(i)negligence. That is, the accident was the fault (at least in part) of another party; and
(ii)that you have a ‘serious injury’ within the meaning of the Transport Accident Act.

Negligence
…
On the basis of your instructions, I am of the view that you would be able to establish that the accident was caused by the fault of another party.
Serious injury
…
I confirm that a serious injury application and affidavit in support sworn by you on 12 November 2013, was lodged with the TAC. By letter dated 4 December 2013, the TAC denied your request for a Serious Injury Certificate on the basis that it did not consider you had a serious long-term impairment or loss of a body function. The TAC supported its decision based on YouTube clips and extracts which it provided to us from the official site of your band ‘Damian Murdoch Trio’ which evidenced you playing live shows, playing lead guitar and actively touring.
I confirm that at a conference with you at our office on 20 January 2014, I advised of the risks of proceeding with an originating motion before a County Court judge. I confirm we discussed as follows:
·YouTube clips of the band show you playing as lead guitarist. You instruct that you have changed the way you play as a result of the injuries you sustained to your neck and arm and after playing, you are in considerable pain.
·The medico-legal specialists who examined you on our behalf and on behalf of the TAC all reported different levels of your ability to play guitar.
·You attested in your sworn affidavit in support of the serious injury application that you stopped playing live gigs with two Australian bands. There was no mention in your affidavit that you had returned to playing with a band in Austria. Therefore I explained your credibility may be attacked by the TAC should the matter proceed to hearing.
·In the alternative, the TAC may argue that the YouTube clips demonstrate that your injuries are not significant or marked so as to constitute a ‘serious injury’.
·An originating motion could be issued on your behalf on the basis that you pay for unrecoverable disbursements between $1000 to $3000, in order to prepare the matter for a pre-hearing conference with the TAC. At the pre-hearing conference, the TAC could either maintain its position or offer a ‘serious injury’ certificate. In the event the TAC maintained its denial, it could offer that each party bear their own costs, or ask for its costs to be paid as at the date of the conference. In the event that you decided to proceed to hearing before a judge, we would not be prepared to act on a no win/no fee basis and in the event of being unsuccessful at hearing, the TAC would most certainly request payment of its legal costs.

·I advised that in my opinion, on the material before me, I considered your claim to be borderline successful in the event you proceeded with an originating motion.
·I advised that I would continue acting on a no win/no fee basis to a pre-hearing conference with the TAC.

I confirm that after considering my advice, you instructed Ms Alexopoulos of our office on 19 May 201[4] not to pursue an originating motion at the County Court on your behalf. Accordingly, I will take no further steps in relation to a potential common law claim.
Please note that for transport accident injuries that occur in the State of Victoria, you must bring the claim within six years from the date of the injury occurring, after which time your rights expire. In your case the time within which to bring a claim expires on 24 September 2014. It is therefore necessary to consult a solicitor well before the time limit expires so that proceedings may be issued in time. In some very limited circumstances the court may agree to extend the time in which the claim can be brought.
…
Next Step
Damian, if you disagree with any of the advice provided, you may wish to seek alternative legal advice. … Very strict time limits apply to bringing legal action. If you wish to pursue this matter, it is important that you seek alternative legal advice as soon as possible to protect your own interests. If a time limit is missed, your rights may be permanently lost.

In cross-examination, Mr Murdoch accepted that:

(a)he discussed Slater & Gordon’s advice with his legally-qualified sister;
(b)in the knowledge of the impending time limit, and relying on the advice from Slater & Gordon and his sister, he decided not to issue a proceeding;
(c)he knew that, in the absence of instructing Slater & Gordon or another firm of solicitors to make an application for a serious-injury certificate, the time limit would expire and that would mean his rights would be lost; and
(d)he understood that the primary reason why Slater & Gordon considered his case to be ‘borderline’ related to the social media material provided by the applicant, and not the seriousness of his claimed injury.

On 24 September 2014, the limitation period applicable to Mr Murdoch’s cause of action expired. As we have already observed, a little over three years later, in December 2017, Mr Murdoch commenced the proceeding below.

In the period after the expiration of the limitation period, Mr Murdoch underwent four further operations: namely, ulnar nerve decompression surgery (28 December 2015); left decompressive surgery and foraminotomies at C6, C7 and C8 (2 September 2017); brachial plexus surgery (16 February 2018); and a ventral decompression at C5–7 with implantation of an artificial disc prosthesis at C5–6 and a cage implant at C6–7 (11 September 2018).

Evidence and parties’ cases at first instance

In support of his applications, Mr Murdoch relied upon three affidavits which were sworn by him in November 2013, May 2018 and April 2019. Mr Murdoch was the only witness to give oral evidence on the hearing of his applications. In his evidence-in-chief, and subject to two corrections, he adopted his affidavits as true and correct. He was then cross-examined extensively, before being re-examined. It is plain from the transcript of the hearing before the judge that Mr Murdoch’s credit was a significant issue. It remains a significant issue in this Court.

The balance of the evidence was documentary, consisting of letters of advice from Mr Murdoch’s solicitors; medical reports, from both treating doctors and medico-legal specialists; diagnostic reports, including reports of MRI scans,[3] nerve conduction studies, ultrasounds, a nuclear medicine whole body scan, CT-guided cervical neural foraminal injections, and various other radiological investigations; clinical records; a YouTube video of Mr Murdoch; photographs of the vehicle in which Mr Murdoch was travelling, taken after the collision; and screen shots of internet material relating to Mr Murdoch’s various musical activities.
[3]Described as MRT scans, in relation to those performed in Germany.

Additionally, the Commission tendered an affidavit from Danny Jordan, the payroll officer at Ivanhoe Grammar School during the time of Mr Murdoch’s employment at that school. In that affidavit, Mr Jordan contradicted some of Mr Murdoch’s account of his employment at Ivanhoe Grammar. For example, while Mr Murdoch deposed in his first affidavit to being unable to return to teaching for approximately two weeks after the accident, Mr Jordan deposed that, ‘according to payroll records [Mr Murdoch] did not appear to take any time off work after his accident which occurred during September school holidays’.

There was a conflict in the medical evidence tendered before the judge. The opinions expressed by the medical experts ranged from an acceptance that the accident was a cause of Mr Murdoch’s physical symptoms,[4] through to the relationship between his symptoms and the accident ‘not [being] clear cut’,[5] then to those symptoms ‘not [being] consistent with the accident’,[6] and finally to one expert concluding that he was ‘not able to diagnose any significant physical abnormality affecting the left upper extremity … [or] to ascribe a physical explanation for [Mr Murdoch’s] ongoing symptoms’.[7]
[4]For example, see the report of Mr Doig (an orthopaedic surgeon) dated 25 February 2014 and the report of Dr Bala (a consultant physician in rehabilitation medicine) dated 17 April 2019.
[5]See the report of Dr Sharrock to the Commission dated 22 October 2009.
[6]See the report of Dr Bowles (an occupational physician) dated 14 September 2010.
[7]See the report of Mr Ireland (an orthopaedic surgeon, specialising in hand surgery) dated 11 May 2018.

As is often the way in cases like the present, the opinions of the medical experts on the issue of causation were, in large part, dependent upon the reliability of the history taken by the expert from the person being examined.[8] The accuracy of histories given by Mr Murdoch to medical witnesses who accepted the existence of a causal link between the accident and his ongoing complaints was the subject of significant challenge before the judge.
[8]See Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60]; Rowe v Transport Accident Commission [2017] VSCA 377, [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76]; Apps v Victorian WorkCover Authority [2020] VSCA 21, [66]. But, see also, Woolworths Ltd v Warfe [2013] VSCA 22, [112].

Mr Murdoch’s case

Mr Murdoch’s case before the primary judge on the extension of time application was that he acted reasonably in relying upon legal advice that his claim was borderline and that he was at risk on costs if he proceeded with his case in 2014. Between the time of swearing his first affidavit (November 2013) and the time of making his decision to actually proceed, his prospects of success improved (because of a deterioration in his physical condition to the point where, by late 2016, he was no longer able to play guitar professionally, and ‘it was clear to him that he had a serious injury associated with the consequences of being unable to play professionally’).

Mr Murdoch submitted to the judge that the length of, and reasons for, his delay in commencing proceedings were ‘explicable and reasonable’, and that the Court should take into account that the Commission did not allege any specific prejudice in relation to this delay. Specifically, counsel for Mr Murdoch submitted to the judge:

In considering whether it is just and reasonable [to grant an extension of time] we submit the Court should take into account that there is no specific prejudice, that the actions of the plaintiff in not pursuing the application in 2014 were reasonable, taking into account his circumstances at that time and the legal advice that he received. Noting the nature and effect of the injury the plaintiff has and the consequences of that injury to him, being the preclusion of his professional career and love of performing it is just and reasonable to extend the period of time in which to bring proceedings.

With respect to the serious injury application, Mr Murdoch submitted to the judge that the only real issue was causation, and the Commission had not contested Mr Murdoch’s assertions as to the consequences of his physical injury as set out in his affidavits (including his inability to play the guitar professionally since December 2016 because of his injury).

In relation to causation, counsel for Mr Murdoch submitted to the judge that the following matters were relevant:

·there was no evidence of any pre-existing problem in existence prior to the accident;
·it was accepted by ‘nearly all of the doctors (except perhaps Mr Rogers[9] and Mr Ireland)’ that Mr Murdoch was ‘genuine in his presentation’;
·the Commission accepted Mr Murdoch’s claim for no fault benefits in 2009 and had paid for medical treatment in Australia since that time, including the costs of surgery. This was said to represent ‘a significant admission against interest’;
·there was no suggestion of any alternative traumatic cause; and
·there was pathology in Mr Murdoch’s arm and neck which was thought by relevant medical practitioners to be as a consequence of the accident, and which was consistent with Mr Murdoch’s symptoms.
[9]A neurosurgeon, who examined Mr Murdoch at the request of the Commission on 17 May 2018.

Commission’s case

With respect to the extension of time application, the Commission conceded that it did not assert that there was any specific prejudice occasioned by Mr Murdoch’s delay. The Commission, however, relied upon presumptive prejudice of the kind referred to by McHugh J in Brisbane South Regional Health Authority v Taylor.[10]
[10](1996) 186 CLR 541, 551–2 (‘Brisbane South’).

The Commission characterised the only issue of concern to Mr Murdoch, in 2014, in relation to his serious injury application was a ‘credit problem’ identified by his solicitors. This credit problem was described as being ‘entirely of [Mr Murdoch’s] own making’. The Commission contended that the advice given to him by Slater & Gordon as to his prospects of success was ‘readily understandable’ in these circumstances.

The Commission submitted that Mr Murdoch received legal advice that was appropriate in the circumstances of his case; he clearly understood that advice; and he understood that he had a choice about commencing a proceeding. It was contended that he was ‘fully aware that, if he did not take action, his common law rights would be extinguished’ and that, in 2014, ‘he made a considered election not to pursue his common law entitlements’.

While the Commission accepted that Mr Murdoch’s medical condition deteriorated since the expiration of the limitation period, it contended that this was irrelevant, saying:

Moreover, the plaintiff had already had surgery on his cervical spine and had been advised in 2013 that he should have the rib operation. He deposed that he was ‘struggling’ during the limitation period. This is not a case in which the plaintiff mistakenly believed that his injuries had resolved. The plaintiff was at real risk of deterioration and that is precisely what he should have deposed to [but did not] in his [first affidavit].

The Commission submitted to the judge that various statements made by Mr Murdoch (particularly in his first affidavit, and in a history to at least one medical practitioner) were lies and that as a result his evidence should not be accepted on critical matters. Specifically, it was submitted that his evidence as to his reasons for not commencing a proceeding within time, and also his evidence relevant to causation, should not be accepted.

On the issue of causation, the Commission relied upon those medical opinions that did not support a causal link. In relation to those medical opinions that supported a causal link, the Commission submitted that they were based on histories given by Mr Murdoch which were either shown to be lies or could not otherwise be accepted.

Primary judge’s reasons

Having identified Mr Murdoch’s applications, the judge said, for the reasons set out thereafter, he had concluded that it was just and reasonable to extend the limitation period; and he was satisfied that the consequences of the accident could be described ‘as at least very considerable and thus serious’.[11] In expressing these conclusions, the judge said that, while a number of the Commission’s submissions ‘were not without merit’:

overall I am not persuaded that because the plaintiff knowingly allowed the limitation period to expire, he should be refused the grant of an extension of time, or furthermore, that the plaintiff’s credit was sufficiently undermined as to constitute a reason to refuse the leave sought.[12]

[11]Reasons [5].

[12]Ibid.

Next, the judge summarised some of the principles governing extension of time applications,[13] before turning to the evidence and the parties’ submissions.[14] Under the heading ‘Some primary findings’, the judge then said:

First, I am satisfied that there were no external factors operating that disadvantaged the plaintiff from pursuing an application within the limitation period. By external factors, I mean that the plaintiff was not subject to any disadvantages by either ignorance of his rights or poor legal representation. His solicitors appear to have properly advised him. He was aware that if he did not take action his common law rights would be extinguished with only a limited ability to pursue a right to commence an action in the future if the limitation period expired.
Second, I am satisfied that the plaintiff made a considered election not to pursue his common law entitlement within the limitation period.
Third, I am satisfied that, by late 2016, the consequences of the plaintiff’s injury from the transport accident had become very considerable. I am satisfied that the effects on the plaintiff throughout the limitation period and after its expiration was not constant or uniform in its effects on his life or his career.
I am satisfied that the plaintiff has provided acceptable reasons for his delay.[15]

[13]Ibid [16]–[19].

[14]Ibid [20]–[91].

[15]Ibid [92]–[95].

Under separate headings, the judge then dealt with paragraphs (b) to (f) of s 23A(3) of the Limitation of Actions Act,[16] being matters that the Court was required to have regard to in determining whether or not to grant the extension of time application.[17] In the course of this analysis, the judge accepted that a decision unfavourable to the Commission would result in it losing ‘the benefit of the limitation period in circumstances in which the only fault is the delay attributable directly to [Mr Murdoch]’.[18]
[16]Ibid [96]–[103].
[17]Section 23A(3) requires a court considering whether it is just and reasonable to extend the period within which an action on a cause of action may be brought to 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.
[18]Reasons [96].

Having dealt with s 23A(3), the judge then expressed his conclusion as follows:

In the preceding paragraphs I have pointed to a number of considerations which, if the test I was required to apply under the Limitations Act was confined to a single consideration, may have led to an adverse outcome for the plaintiff. However, that is not the test. Despite the very strong submissions made by [senior counsel for the Commission], having regard to the factors set out in the provision, I am satisfied that the absence of actual prejudice to the defendant, when assessed against the serious consequences to the plaintiff in the event his application is refused, renders his application for an extension of time one in which it just and reasonable to do so. All of the circumstances of the case have come into the mix in my decision, as reflected by the foregoing reasons, as well as the seriousness to the plaintiff of the consequences that have been caused by the transport accident. Ultimately the absence of prejudice is a substantial consideration.[19]

[19]Ibid [104].

Next, the judge turned to the issue of causation. The judge then referred to the fact that the Commission had paid for relevant medical treatment, before referring to and discussing the medical and other evidence that bore on the causation question.[20]
[20]Ibid [106]–[126].

The judge noted that there were inconsistencies in Mr Murdoch’s evidence. He also noted that causation was disputed by the Commission, in part because of Mr Murdoch’s unreliability as a historian and his lack of truthfulness on some aspects of his evidence.[21]
[21]Ibid [127]–[129].

The judge said that, while he was not satisfied that Mr Murdoch was a ‘witness of truth on all matters’, he was not prepared to conclude that the matters of dishonesty were ‘of sufficient character and content as to undermine the question concerning that of causation’.[22] His Honour then said:

In large part I found the plaintiff did his best to recount his history and to explain his efforts to balance his development of his career in light of being beset by an undoubted and complicated medical situation.[23]

[22]Ibid [130].

[23]Ibid.

Next, the judge discussed some particular circumstances where a lack of credit might be determinative against a plaintiff seeking relief of the kind sought by Mr Murdoch, contrasting those circumstances with Mr Murdoch’s case, before saying:

However, on balance, I do not regard the plaintiff’s case, so far as his credit issues are concerned, as having diminished a sufficiency of evidence on the issue of causation.
Each problem the plaintiff finds himself confronted by in this application to extend time has been of his own making. However, I think it is a matter of some importance that the plaintiff elected to permit the limitation period to expire because he thought he would not succeed due to his supposed vulnerability by way of credit stemming from social media material located by the TAC, and based on the concerns expressed by Slater & Gordon in persuading a judge on a serious injury application in light of the same. The difficulties thought to have been created for the plaintiff’s prospects of success, because of the social media discoveries by the TAC, drove Slater & Gordon’s assessment and prompted it in laying out the parameters for its ongoing representation of the plaintiff in the event he pursued the matter further. When regard is had to the extent of the plaintiff’s involvement with The Ocean, it is understandable that he accepted their advice. However, I am mindful that the plaintiff did not permit the limitation period to expire because, for example, he had not been in a transport accident within the meaning of the TA Act, or because his condition was stable and he was not experiencing progressive interferences to function. The development of the plaintiff’s impairment is evident from the medical material.

I have found the absence of problems with the plaintiff’s hand prior to the accident to be a persuasive consideration on the question of causation. The plaintiff said that had experienced pain in the middle of 2009 when he saw Dr Sharrock and was referred to Dr Lam and that the pain and difficulty it caused to daily activities and playing the guitar was the trigger for attending Ms Fitt and the referrals that then followed. I accept the plaintiff’s account. Diagnostically speaking, in my judgment, there is a more reliable and objective basis to trace the commencement of the left hand problem to the transport accident than to a diagnostic basis that the plaintiff engaged in an overuse of his hand playing the guitar. The plaintiff presents with the existence of pathology in his arm and neck that I am satisfied on the balance of probabilities has been caused by the transport accident as opposed to not.[24]

[24]Ibid [131]–[133].

The judge then set out his final conclusions in respect of the extension of time application, saying:

In distilling the evidence and then applying it against the various indicia set out in s 23A of the Limitations Act, and after having had regard to the overall circumstances of the case, I am satisfied that it is just and reasonable to extend the time in which a proceeding may be commenced for the grant of a serious injury certificate.
The deficiencies pointed to by the defendant concerning an absence of contemporary corroborative account is, in my judgment, met sufficiently for the purposes of the determination of this application by the existence of other opinions that the plaintiff’s account is consistent with his expressed symptoms. Furthermore, that the thoracic outlet syndrome, both vascular and neurological, have a traumatic basis consistent with the transport accident.[25]

[25]Ibid [134]–[135].

Finally, the judge turned back to the serious injury application, noting there was no challenge to Mr Murdoch’s account of the consequences of his injury. The judge set out a concession made by the Commission’s counsel that if causation was satisfied then the Commission did not contend that Mr Murdoch would not satisfy the serious injury test set out in s 93 of the Transport Accident Act. The judge then concluded that he was satisfied that Mr Murdoch’s injury, when judged by comparison with other cases in the range of possible impairments or losses, could fairly be described as at least very considerable, and more than merely significant or marked.[26]
[26]Ibid [138]–[139]. See Humphries v Poljak [1992] 2 VR 129, 140.

Grounds of appeal

The Commission relies upon six proposed grounds of appeal. Grounds 1 to 4 deal with the judge’s order granting the extension of time application, and are in the following terms:

1.The primary judge erred when determining whether it was just and reasonable to extend time by having regard to (and treating as dispositive) the consequence for the respondent that if time were not extended he would not be able to bring his claim, alternatively by failing to have regard to the counterbalancing consequence for the applicant that if time were extended it would have to face an otherwise-barred claim.
2.The primary judge erred in his assessment of potential prejudice to the applicant by treating the fact that there was a plethora of medical histories as tending to reduce the extent of general prejudice to the applicant, when the potential prejudice arose from the fact that the correctness of those histories was in dispute.
3.In evaluating the potential prejudice to the applicant, the primary judge erred by focusing on the amount of any additional prejudice caused by the delay after the end of the six-year period, rather than on the potential prejudice to the applicant associated with the entire period between the transport accident and any trial.
4.The primary judge erred in the assessment required by section 23A(3)(a) of the Limitation of Actions Act 1958 of the reasons for the respondent’s delay by failing to identify and to assess the reasons for that delay. His Honour did not engage in the necessary process of establishing, in light of the identified credit issues, what the respondent in fact knew and thought about his condition at the relevant time and the reasons for which he elected not to commence proceedings within the statutory time limit. His Honour instead treated the issue of the respondent’s credit as going to the question of whether or not he deserved to have the discretion exercised in his favour.[27]

[27]Emphasis in original.

Grounds 5 and 6 relate to both the extension of time application and the serious injury application,[28] and are in the following terms:
[28]Although, as we have already said, ground 5 relates primarily to the serious injury application. This is because of the requirement to prove causation in that application: see Borazio v State of Victoria [2015] VSCA 131, [63] (‘Borazio’); Laratae v Dean’s Pty Ltd [2016] VSCA 71, [18] (‘Laratae’); Principe v Transport Accident Commission [2016] VSCA 205, [3] (‘Principe’). Whereas, while proof of causation in an extension of time application may be one of the matters taken into account in the relevant synthesis, it is not necessary to establish causation in order to obtain an extension of time under s 23A of the Limitation of Actions Act: see Taylor v Western General Hospital [1986] VR 250 (King J); Bell v SPC Ltd [1988] VR 123 (Brooking J), an appeal from which was dismissed by the Full Court (see Bell v SPC Ltd [1989] VR 170).

5.The learned primary judge erred when concluding that the respondent’s physical condition resulted from the transport accident by:
(a)failing to determine when and in what circumstances the respondent’s symptoms emerged, when such a determination was necessary for a proper evaluation of the conflicting medical opinion; and
(b)assuming that thoracic outlet symptoms could not develop absent trauma, when there was no evidence to that effect.

6.The learned primary judge failed to give adequate reasons for his decision that the respondent’s medical condition resulted from the transport accident and that it was just and reasonable to extend time.

Ground 1: Did the judge err in considering the consequences to Mr Murdoch if the extension of time application was refused?

Under proposed ground 1, the Commission contended that the judge erred at Reasons [104] when he had regard to, and treated as dispositive, the ‘serious consequences’ to Mr Murdoch in the event that his application for an extension of time was refused. In the alternative, the Commission contended that the judge erred by failing to have regard to the ‘counterbalancing consequence’ for the Commission that, if time were extended, the Commission would have to face an otherwise barred claim.

It may be accepted that if the judge treated the consequences to Mr Murdoch of having his extension of time application refused as dispositive, in the sense that none of the matters specifically referred to in s 23A(3) of the Limitation of Actions Act could have any effect on the outcome of the application, then the judge would have erred and his decision granting the extension of time application would have to be set aside and reconsidered. So much appears from the plain terms of s 23A(3).[29] That section required the judge to have regard to all of the circumstances of the case, including the matters specifically referred to in paragraphs (a) to (f) of that section.
[29]See also, Brisbane South (1996) 186 CLR 541, 551–555 (McHugh J); Clark v McGuinness [2005] VSCA 108, [51] (Warren CJ), [62]–[65] (Winneke P), [80] (Charles JA), [82] (Callaway JA) and [84]–[87] (Eames JA).

Read in isolation, the passage, at Reasons [104], that the Commission seeks to impugn might be problematic, as suggesting that the judge was moved to grant the extension of time application because of the serious consequences to Mr Murdoch if that application was refused. The impugned passage, however, cannot be read in isolation. In our view, a fair reading of the whole of his Honour’s reasons discloses that his Honour, as he was required to pursuant to s 23A(3), had regard to all of the circumstances of the case, including those specifically identified in the section. The following five points may be made.

First, in the very paragraph containing the impugned passage, the judge made it clear that he did not fall into the error contended for by the Commission. Specifically, his Honour referred to the previous paragraphs in his judgment that dealt with the many matters he was required by s 23A(3) to take into account. Moreover, at the conclusion of Reasons [104], the judge said:

All of the circumstances of the case have come into the mix in my decision, as reflected by the foregoing reasons, as well as the seriousness to the plaintiff of the consequences that have been caused by the transport accident. Ultimately, the absence of prejudice is a substantial consideration.

Secondly, earlier in his reasons, when dealing with the principles to be applied in relation to extension of time applications under s 23A, the judge made it plain that it was not appropriate to engage in the erroneous exercise, now asserted by the Commission to have been engaged in by the judge. Specifically, the judge acknowledged that it was not appropriate to ‘balance prejudice to the plaintiff, on the one hand, with prejudice to the defendant on the other’.[30] More particularly, the judge said:

[I]t is not proper to consider the application by reference to a consideration that to not grant an extension would be prejudicial to the plaintiff.[31]

[30]Reasons [16].

[31]Ibid.

In so concluding, the judge specifically complied with this Court’s decision in Tsiadisv Patterson,[32] wherein Buchanan JA[33] said:

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 [plaintiff] in being unable to recover any compensation cannot be measured against prejudice to the appellant [defendant] in conducting her case.[34]

[32](2001) 4 VR 114 (‘Tsiadis’).

[33]With whom Ormiston and Callaway JJA agreed.

[34](2001) 4 VR 114, 123 [33].

Thirdly, in expressing his conclusions in relation to the extension of time application, the judge said that he had ‘distill[ed] the evidence and then appl[ied] it against the various indicia set out in s 23A … and after having regard to the overall circumstances of the case’.[35] Nothing in his Honour’s reasons suggests that this was not the process he engaged in. Moreover, his reasons are replete with references to the circumstances of the case and the various matters referred to in s 23A(3) — showing that this is exactly the process of reasoning he engaged in.
[35]Ibid [134].

Fourthly, to the extent that the Commission submitted that the consequences to an applicant, in the event that an application for an extension of time is refused, is not a matter to which regard may be had under s 23A, that submission must be rejected. The section requires the Court hearing an application under s 23A to have regard to all of the circumstances of the case. That in turn requires the Court to consider the strength of the proposed cause of action and the extent of an applicant’s alleged injury, loss and damage. The consequences to an applicant in not being able to bring a proceeding for a time-barred cause of action are thus relevant — albeit that they must be weighed in the synthesis[36] with any consequences to a respondent in permitting a time-barred claim to proceed.[37]
[36]See Tsiadis (2001) 4 VR 114, 123 [33] (Buchanan JA, with whom Ormiston and Callaway JJA agreed).
[37]See generally Bell v SPC Ltd [1989] VR 170, 173–4 (Young CJ, Kaye and Southwell JJ); Brisbane South (1996) 186 CLR 541; Tsiadis (2001) 4 VR 114, 123 [33]. See, in particular, Azzam v Commonwealth of Australia [2019] VSC 484, [140]–[141] (Incerti J).

Fifthly, in addition to taking into account the consequences to Mr Murdoch of refusing the extension of time application, it is plain that the judge also took into account (as he was required to by Tsiadis)[38] the consequence to the Commission of losing ‘the benefit of the limitation period in circumstances in which the only fault is the delay attributable directly to [Mr Murdoch]’.[39]
[38]Tsiadis (2001) 4 VR 114, 123 [33].
[39]Reasons [96].

Proposed ground 1 must be rejected.

Ground 2: Did the judge err in his assessment of potential prejudice to the Commission?

In the hearing before the judge, the Commission accepted that it could not establish specific prejudice in relation to the delay between the accrual of Mr Murdoch’s cause of action and the commencement of proceedings. The Commission relied upon presumptive prejudice of the kind discussed in Brisbane South.[40] Presumptive prejudice was said to exist in relation to medical histories. With respect to the medical histories in this case, the Commission submitted to the judge that Mr Murdoch’s histories were ‘most important evidence’, and that the memories and observations of medical practitioners ‘will have inevitably faded over time’, to the Commission’s detriment.
[40](1996) 186 CLR 541.

In answer to this submission, the judge noted that the Commission could not point to the absence or unavailability of any relevant witness. The judge then said:

Moreover, as this hearing has demonstrated, there is a plethora of medical histories and of presentations by the plaintiff to doctors and therapists which calls into question the extent of prejudice likely to be occasioned to the defendant in any event of an inability to adduce direct viva voce evidence of facts in issue at any trial subsequent to this grant of leave. Whilst memories inevitably fade and, therefore, a risk of some detriment to the defendant is not fanciful, on the available evidence and on balance, I am not satisfied that it is a sufficiently appreciable risk such as to contradict the grant of relief sought by the plaintiff by reason of it being just and reasonable to do so.[41]

[41]Reasons [97].

Under proposed ground 2, the Commission complains that the judge erred in his assessment of potential prejudice, by treating the fact that there was a plethora of medical histories as tending to reduce prejudice, when the potential prejudice arose from the fact that the correctness of the histories was in dispute. In its written case in this Court, the Commission set out a number of histories which it may be accepted are not a matter of common ground between the parties.

In oral argument, senior counsel for the Commission emphasised a number of histories recorded by Dr Sharrock,[42] Dr Lam,[43] Dr Bowles[44] and Mr Rogers,[45] which were allegedly given by Mr Murdoch. The histories relied upon by the Commission included:

·the pain in Mr Murdoch’s left hand commenced in early 2009;
·Mr Murdoch was not certain whether his symptoms occurred before or after the accident, but they settled and only recurred in December 2008 after he started recording professionally;
·searing pain, involving his little and ring fingers, commenced three weeks after the accident, coming on during the course of a week of music playing, and continuing unabated thereafter; and
·approximately two to three weeks after the accident, Mr Murdoch began to develop pain in the dorsum of his left hand, in the region of the head of the fourth and fifth metacarpals, the ring and little fingers not being involved.

[42]In a letter of referral to Dr Lam dated 31 July 2009, and a subsequent report to the Commission dated 22 October 2009.

[43]In his letter to Dr Sharrock dated 7 August 2009.

[44]In his report to the Commission dated 14 September 2010.

[45]In his report to the Commission dated 17 May 2018.

We see no error in the judge’s rejection of the Commission’s argument that there was significant prejudice to the Commission in the fact that medical practitioners would not be able to remember at trial taking histories that the Commission will rely upon on the issue of causation.

The existence of the histories in medical reports, and the terms of those histories, will be capable of being proved at trial with little difficulty. A significant number of critical histories are unhelpful to Mr Murdoch’s case, particularly those given in the months that immediately followed the accident. The Commission will have the benefit of these histories at any subsequent trial in relation to Mr Murdoch’s injuries. The fact that a medical witness may have little or no recollection of a particular disputed history is likely to be of little moment. The Commission will still be well placed to mount any argument that the history recorded is, in all the circumstances, likely accurate and does not support Mr Murdoch on issues on which he carries the onus. In this respect, we note that Mr Murdoch gave evidence that he could not recall what he said to Dr Sharrock and Dr Lam. He could, however, recall that he had no pain in his left hand before the accident and that he was surprised when he read Dr Sharrock’s report that he had said to Dr Sharrock he was not sure if the pain started before or after the accident. As appears below, that evidence was accepted by the primary judge.

Additionally, the judge was correct to observe that, on the issue of the nature and extent of Mr Murdoch’s injuries, the defendant in any common law trial is in a much more advantageous position than usual because the Commission has had the ability to examine Mr Murdoch and monitor his medical treatment since it accepted his claim for no fault benefits in 2009.

In our view, there is nothing in the proposition that the judge’s observation, that there was a plethora of medical histories, disclosed error in his Honour’s treatment of the issue of presumptive prejudice to the Commission. Proposed ground 2 must be rejected.

Ground 3: Did the judge err by focusing on the amount of additional prejudice caused by delay after the end of the limitation period?

Section 23A(3)(a) requires a court, considering whether it is just and reasonable to extend the period within which an action may be brought, to have regard to the length and reasons for the delay on the part of the applicant. The delay referred to in the section is delay between the accrual of the cause of action and the making of the application for an extension of time.[46]
[46]Koumorou v State of Victoria [1991] 2 VR 265, 272; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7, 11. See also Brisbane South (1996) 186 CLR 541, 548-9.

Under proposed ground 3, the Commission asserts that the judge limited his examination to prejudice that may have been sustained following the expiration of the limitation period (rather than by reference to the whole of the period between the accrual of the cause of action and the commencement of proceedings). Undoubtedly, if the judge did so limit his examination of the issue of prejudice, he would have been in error.

In support of its submissions in relation to ground 3, the Commission focused on a few words in Reasons [18], namely:

[I]n all probability the lengthier the delay the more vulnerable a recollection may be putting aside any vulnerability that might otherwise have prevailed within the allowable limitation period in which to have commenced an action.[47]

[47]Emphasis added.

It is not entirely clear what his Honour meant to convey by the italicised words in this passage of his reasons for judgment. An examination of the whole of the reasons for judgment makes plain, however, that his Honour did not err in the way contended for by the Commission. The following points show that the judge correctly considered the whole of the period following the accrual of Mr Murdoch’s cause of action.

First, a few paragraphs earlier in his reasons,[48] the judge said that the length of delay under consideration in this case was ‘the period between the accrual of the plaintiff’s cause of action and the issuing of a proceeding … in December 2017’. The judge then said:

The delay is of a significant period. Within the limitation period and the period following its expiration, events have occurred that are relevant to the plaintiff’s reasons for delay … .[49]

[48]Reasons [12].

[49]Ibid.

Secondly, in discussing the principles to be distilled from relevant authorities, the judge expressly (and correctly) stated:

Nor is it appropriate to compare the prejudice that would have occurred had the action been commenced by a plaintiff within time, with that which would occur at the time at which the extension of the limitation period is sought.[50]

[50]Ibid [16].

Thirdly, as the balance of Reasons [18] makes clear, the words the Commission seeks to impugn formed part of a sentence where the judge was considering matters about the vulnerability of recollection ‘in the abstract’. Later in the same paragraph, however, the judge referred to a passage in McHugh’s J’s judgment in Brisbane South that dealt with delay from the time of the accrual of a cause of action.

Fourthly, it is plain from the judge’s actual treatment of the issue of prejudice to the defendant,[51] that the judge did not confine his examination of the issue merely to the period following the expiration of the six year time limit.
[51]Ibid [96]–[98].

Proposed ground 3 must be rejected.

Ground 4: Did the jdge err by failing to identify and assess the reasons for the delay on the part of Mr Murdoch?

Section 23A(3)(a) required the judge to have regard to ‘the length of and reasons for the delay on the part of [Mr Murdoch]’.

Under proposed ground 4, the Commission contended that the judge erred by failing to identify and to assess the reasons for delay in this case. Additionally, the Commission submitted that the judge did not engage in the necessary process of establishing, ‘in the light of the identified credit issues’, what Mr Murdoch in fact knew and thought about his condition at relevant times. Moreover, the judge did not engage in the necessary process of determining the reasons for which Mr Murdoch elected not to commence proceedings within the six year time limit.

Additionally, the Commission contended that the judge erred by treating the issue of Mr Murdoch’s credit as going to the question of whether or not he ‘deserved’ to have the discretion to extend time exercised in his favour.

At the hearing of his applications, Mr Murdoch was extensively cross-examined about his reasons for not issuing proceedings within the limitation period. The evidence disclosed two possible reasons: first, that Mr Murdoch did not believe his injury amounted to a ‘serious injury’ until after his condition deteriorated following the expiration of the limitation period; and secondly, that Mr Murdoch chose not to issue proceedings in time because he knew his credit would be seriously in issue because of inaccuracies and omissions in the affidavit he swore in November 2013, and also in relation to histories given to medical practitioners.[52]
[52]Specifically, to Dr Serry (a consultant psychiatrist who examined Mr Murdoch at the request of his solicitors) on 19 December 2013, and to Mr Doig (an orthopaedic surgeon who examined Mr Murdoch at the request of his solicitors) on 20 January 2014.

In cross-examination, Mr Murdoch gave evidence that his failure to commence a proceeding within the limitation period was due to both of these matters and more — including that Slater & Gordon had said that they would no longer act for him on a no win no fee basis, and that he was touring internationally at the time and still searching for and undergoing treatment.

While the judge dealt with paragraphs (b) to (f) of s 23A(3) under discrete headings, he dealt with the issue required to be considered by s 23A(3)(a) (the length of and reasons for delay) more diffusely. A substantial part of the judge’s reasons was devoted to the progress of Mr Murdoch’s condition, medical advice he received from time to time, and his dealings with his solicitors and the advice he received from them. All of this bore on the reason or reasons for the delay in commencing proceedings.

The judge’s reasons need to be read in light of the arguments advanced to him by the parties. The Commission’s case was that Mr Murdoch, with knowledge that his proceeding was about to become time-barred, elected in 2014 to let his proceeding become time-barred, and any deterioration in his physical condition after that time was irrelevant.[53] The judge accepted that Mr Murdoch made an election not to pursue his common law entitlement within the limitation period.[54] Indeed, that matter was conceded by Mr Murdoch in the hearing before the primary judge.[55] That was not, however, the end of the matter.[56]
[53]As to this approach, see Hunt v Numurkah District Health Service [2018] VSCA 248, [64] (‘Hunt’).
[54]Reasons [93].
[55]Ibid [86].
[56]Hunt [2018] VSCA 248, [64].

The judge said it was a ‘matter of some importance’ that Mr Murdoch elected to permit the limitation period to expire because he thought he would not succeed due to the credit issues which had been identified.[57] The other issue which was also important, however, was the development of Mr Murdoch’s impairment as disclosed from the medical material tendered to the judge.[58]
[57]Reasons [132].
[58]Ibid.

There can be no doubt that there was a substantial deterioration in Mr Murdoch’s condition after the expiration of the limitation period. So much is plain from the medical evidence and the position taken by the Commission at the hearing before the primary judge. Having maintained in 2013 and 2014 that Mr Murdoch’s physical injury was not serious, the Commission accepted at the hearing (in 2019) that if causation was established then the issue of seriousness could not be disputed.

The judge’s reasons disclosed that he accepted Mr Murdoch’s evidence that he allowed the limitation period to expire because, at that time (2014), he was concerned that he would lose any case he commenced because his injury would not have been held to be serious (because of its actual extent at that time and the credit issues that had then been identified). In the circumstances of the case, and having regard to the submissions made to him, the judge was not required to further elucidate his findings about Mr Murdoch’s reasons for delay, when considering the extension of time application.

In a nutshell, Mr Murdoch’s claim in 2014 could correctly have been regarded as ‘borderline’ (whether for reasons of credit or the then state of the medical evidence concerning his injury). Following the deterioration of his condition after the expiration of the limitation period, the claim was no longer borderline. A fair reading of the judge’s reasons shows that this change in circumstances was the reason for Mr Murdoch’s delay in commencing proceedings, and that this reason was accepted by the judge.[59]
[59]Cf Hunt [2018] VSCA 248, [64].

Finally, (so far as ground 4 is concerned), the Commission’s submission that the judge erred, by treating the issue of Mr Murdoch’s credit as going to the question of whether or not he deserved to have the discretion to extend time exercised in his favour, must be rejected.

While the judge’s statement, in terms, that he was not persuaded that Mr Murdoch’s credit was sufficiently undermined to constitute a reason for refusing the extension of time application,[60] if taken in isolation, might provide some support for the Commission’s submission, that support evaporates when one examines the whole of his Honour’s reasons.
[60]Reasons [5].

When considered in their entirety, the judge’s reasons show plainly that he did not grant the extension of time application merely because Mr Murdoch’s credit was not sufficiently undermined. Similarly, and again contrary to the Commission’s submissions, the judge did not grant the extension of time application merely because Mr Murdoch’s condition deteriorated after the expiration of the limitation period. To the contrary, his Honour granted the application after engaging fully with each of the relevant statutory criteria set out in s 23A(3) of the Limitation of Actions Act.

Proposed ground 4 must be rejected.

Ground 5: Did the judge err in finding a causal link between the accident and Mr Murdoch’s condition?

In order to succeed in the serious injury application, Mr Murdoch was required to prove on the balance of probabilities that the accident was a cause of his physical injury.[61]
[61]See Borazio [2015] VSCA 131, [63]; Laratae [2016] VSCA 71, [18]; Principe [2016] VSCA 205, [3].

Under proposed ground 5, the Commission contends that the judge erred when he concluded that Mr Murdoch’s physical condition resulted from the accident. The Commission makes two complaints of specific error: first, that the judge erred in failing to determine when, and in what circumstances, Mr Murdoch’s symptoms emerged (such a determination being said to be necessary for a proper evaluation of the conflicting medical opinions); and secondly, by ‘assuming that thoracic outlet symptoms could not develop absent trauma’.

The Commission submitted that it was necessary for the judge to determine when and in what circumstances Mr Murdoch’s symptoms developed because the histories (upon which the medical opinions were based) gave rise to three possibilities, namely that Mr Murdoch’s initial symptoms arose:

·during a ‘period of two weeks or so around the time of the accident’, Mr Murdoch being unable to recall ‘with any certainty whether this occurred before or after [the accident]’;[62]
·some months after the accident;[63] and
·at or about the time of the accident (or, more precisely, in the fortnight following the accident, as deposed to by Mr Murdoch).

[62]Report of Dr Simon Lam, a consultant physician and rheumatologist who saw Mr Murdoch on 7 August 2009 on referral from Dr Sharrock.

[63]As suggested in a letter from Dr Sharrock to Dr Lam, written after Mr Murdoch’s consultation with Dr Sharrock on 31 July 2009.

In the course of his analysis of the causation issue, the judge referred to many of the conflicting medical histories and opinions,[64] the relevance of the fact that the Commission had made various payments ‘for treatments and surgeries’,[65] and Mr Murdoch’s evidence about the onset and progression of symptoms. While the judge noted that aspects of Mr Murdoch’s evidence were untruthful (describing them as ‘matters of dishonesty’), he ultimately concluded that, in large part, Mr Murdoch did his best to recount his history in what was ‘an undoubted and complicated medical situation’.[66]
[64]Reasons [110]–[125].
[65]Ibid [106]. As to the relevance of the making of these payments by the Commission, see Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247, [45]; Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247, 265 [66]–[68].
[66]Reasons [130].

Having made this conclusion, the judge then found that the absence of problems with Mr Murdoch’s hand prior to the accident was a persuasive consideration on the issue of causation.[67] In light of the submissions made by the parties to the judge, this was a sufficient determination by the judge as to when, and in what circumstances, Mr Murdoch’s symptoms emerged. Thus, the first of the specific errors contended for by the Commission under this proposed ground of appeal is without substance.
[67]Ibid [133].

The judge, having had the benefit of seeing and hearing Mr Murdoch cross-examined, ultimately accepted his account on the issue of causation. A different judge may have come to a different conclusion. We are not prepared, however, to say that the judge’s conclusion was glaringly improbable or contrary to compelling inferences.[68] In accepting Mr Murdoch’s account on the issue of causation, the judge expressly concluded that there was no history of any relevant physical problems prior to the accident.[69] The judge described this as a ‘persuasive consideration on the question of causation’.[70]
[68]Cf Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686–7 [43]; Lee v Lee (2019) 372 ALR 383, 396 [55].
[69]Reasons [133].
[70]Ibid.

Having accepted Mr Murdoch’s account in respect of the development of his symptoms following the accident, it was but a short step for the judge to then accept the medical opinions that were consistent with this history. While, as we have said, there were conflicts in the medical evidence that fell to be resolved, we see no error in the judge’s acceptance of those opinions that were supportive of Mr Murdoch’s case.[71]
[71]See, for example, the report of Dr Bala dated 17 April 2019.

As we have already said, the Commission’s second complaint under this ground of appeal is that the judge assumed that Mr Murdoch’s thoracic outlet symptoms ‘could not develop absent trauma’. This complaint must be rejected.

The complaint is based upon a single sentence at the end of the judge’s reasons on the issue of causation, namely:

Furthermore, that the thoracic outlet syndrome, both vascular and neurological, have a traumatic basis consistent with the transport accident [sic].[72]

[72]Reasons [135].

In its written case in this Court, the Commission asserted that there was ‘no evidence to this effect’. We disagree. In his report to the Commission,[73] Dr Vidovich (a vascular surgeon) said:

In my clinical opinion Mr Murdoch’s thoracic outlet syndrome is consistent with being due to injuries sustained in the road traffic accident on 25.09.2008.
…
Thoracic outlet syndrome may be caused by acute injury to the head, neck or shoulder in patients who are prone or susceptible to this condition if they have a pre-existing condition such as an anatomical anomaly of cervical rib or band or an abnormality of the first rib. There is documented evidence in the MRI scan performed in Germany on 14.02.2014 that Mr Murdoch had an abnormality of his first rib which was described as a ‘steep first rib’ which could be considered to be a condition causing him to be susceptible to a thoracic outlet syndrome.
…
Taking this into account together with the nature of the injury and the subsequent medical history, it is my clinical opinion that Mr Murdoch’s thoracic outlet syndrome was caused by the road traffic accident which occurred on the 24 September 2008.[74]

[73]Dated 15 August 2018.

[74]See also the report of Mr Doig dated 25 February 2014, in which he said:

What the MRI scan [of 14 February 2014] does is indicates that he probably does have a thoracic outlet syndrome and that would give a good reason as to why he has had such ongoing problems with the left upper limb. Since he has always attributed the trouble that he has had from the date of the motor vehicle accident, I consider that it is more probable than not that in fact the motor vehicle accident has either caused the thoracic outlet syndrome or has rendered the anatomical abnormality that was already present symptomatic, particularly in view of the fact that he denies having any problems with it before.

On all of the evidence, we see no error in the sentence of the judge’s reasons now sought to be impugned by the Commission. Even if we were persuaded, however, that the sentence sought to be impugned overstated the evidence, it is plain from the detail of the balance of the judge’s reasons that any error associated with this sentence was not material to his Honour’s ultimate conclusion.

Proposed ground 5 must be rejected.

Ground 6: Were the judge’s reasons inadequate?

Under proposed ground 6, the Commission makes complaint about the adequacy of the judge’s reasons. In support of this complaint, the Commission repeats submissions already made about the need for the judge to make specific findings about Mr Murdoch’s reasons for delay, and the need for findings about the timing and circumstances of the development of Mr Murdoch’s symptoms (proposed grounds 4 and 5).

We have already determined that there is nothing in these complaints. For the reasons we have already given, the judge made sufficient findings to determine the applications that were before him. His path of reasoning was clearly expressed. His reasons disclose why he came to his ultimate conclusions and granted both applications. While he could have said more on some issues, no more was required.

Proposed ground 6 must be rejected.

Conclusion

While there should be a grant of leave to appeal, the appeal must be dismissed.

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Citations

Transport Accident Commission v Damian Murdoch [2020] VSCA 98

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[2020] VSCA 98

28 April 2020