Villalobos v Transport Accident Commission
[2023] VCC 1051
•30 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-17-02510
| DANIEL PAOLO VILLALOBOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 July 2022, 6 and 7 February 2023 | |
DATE OF JUDGMENT: | 30 June 2023 | |
CASE MAY BE CITED AS: | Villalobos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1051 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT – LIMITATION OF ACTIONS
Catchwords: Serious injury application – injury to spine, left lower limb and psychiatric injury – two transport accidents – addiction to prescription medication – causation
Application for extension of time to bring action for damages – transport accident – plaintiff did not receive solicitors’ letter of advice as to expiry of limitation period – delay – relevance of second transport accident – prejudice to defendant
Legislation Cited: Transport Accident Act 1986, s93; Limitation of Actions Act 1958, s23A
Cases Cited:Primary Health Care Limited v Giakalis (2013) 38 VR 165; Humphries and Anor v Poljak [1992] VR 129; Dahl v Grice [1981] VR 513; EMI (Australia) Ltd v BES [1970] 2 NSWR 238; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Acir v Frosster Pty Ltd [2009] VSC 454; Rowe v Transport Accident Commission [2017] VSCA 377; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Thacker v Transport Accident Commission [2021] VCC 814; Bell v SPC Ltd [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Delai v Western District Health Service & Anor [2009] VSC 151; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Transport Accident Commission v Murdoch [2020] VSCA 98; Welsh v Adecco & Ors [2017] VSC 44; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Clark v McGuinness [2005] VSCA 108; Griffiths v Nillumbik Shire Council [2022] VSCA 212; South Western Sydney Area Health Service v Gabriel & Anor [2001] NSWCA 477; Repco Corporation v Scardamaglia [1996] 1 VR 7; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639
Judgment: Leave granted to the plaintiff to commence proceedings for common law damages in relation to injuries sustained in transport accidents on 23 December 2003 and 15 October 2013.
The time within which the plaintiff may commence proceedings be extended under s23A of the Limitation of Actions Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
Table of Contents
Introduction
The evidence
Section 93 of the Transport Accident Act
Relevant principles – serious injury
Credit
Background
The first transport accident
The second transport accident
Medical evidence
Physical injuries
Psychological injury
The cause of the second transport accident
The Plaintiff’s use of prescription medication
The Plaintiff’s history of seizures
Medical evidence
Did a seizure cause the second transport accident?
Consequences – pain and suffering
Capacity for employment
Before the second transport accident
After the second transport accident
Left lower limb
Has the Plaintiff suffered a serious injury?
Chest
Neck and back
Gastro-intestinal injury
Left lower limb
Psychological injury
Conclusion (serious injury)
Section 23A of the Limitation of Actions Act
Relevant principles – extension of time
Submissions of the TAC
(a) The length of, and reasons for, the delay on the part of the Plaintiff
Length of the delay
The Plaintiff’s explanation for the delay
(b) The extent to which, having regard to the delay, there is likely to be prejudice to the Defendant
(c) 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
(d) The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice, and the nature of the advice he may have received
The Plaintiff’s dealings with Melbourne Injury Lawyers
Disposition
Conclusion
HIS HONOUR:
Introduction
1By Originating Motion filed 6 June 2017, the plaintiff, Daniel Villalobos, seeks leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) to commence proceedings for damages in relation to injuries to his neck, lower back, left leg and gastrointestinal system[1] under sub-paragraph (a) of the relevant definition of “serious injury”, and in relation to a psychiatric injury under sub-paragraph (c).
[1] Due to the ingestion of medication
2The claim relates to a transport accident on 23 December 2003. A vehicle chasing a motorcycle crossed the centre line of Sandfield Drive in Carrum Downs, causing a head-on collision with Mr Villalobos’ vehicle (“first transport accident”). Liability seems clear. It is not in dispute that Mr Villalobos sustained a fracture of his sternum and a soft-tissue injury to his cervical spine in this accident.
3The Transport Accident Commission (“TAC”) also accepts that following, and as a result of, the first transport accident, Mr Villalobos was diagnosed with Post-Traumatic Stress Disorder, Depression and chronic pain in 2004 by his general practitioner; he sought psychological treatment and was prescribed various medications to address his pain and psychological condition.
4As at the date of the hearing, Mr Villalobos has no ongoing pain or other consequences from his fracture to the sternum and has minimal low-back pain.[2] Quite appropriately, Mr Villalobos effectively abandoned discrete reliance upon these injuries; however, they remain relevant in the context of the treatment he received for these injuries.
[2]Transcript (“T”) 150, Line/s (“L”) 1; T190, L23; T297, L8
5In order to succeed, Mr Villalobos must satisfy the Court that he sustained a serious long-term impairment or loss of a body function within the meaning of sub-paragraph (a) of s93(17) of the Act and/or a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of sub-paragraph (c) as a consequence of the first transport accident.
6Mr Villalobos was involved in a second transport accident on 15 October 2013 in Hall Road, Carrum Downs. Mr Villalobos alleges he suffered a seizure as a result of medication he was taking to treat his condition arising from the first transport accident, lost control of his vehicle and crashed into a tree (“second transport accident”).
7It is not in dispute that Mr Villalobos relevantly sustained an injury to his left lower limb; however, the cause of the second transport accident is a significant issue in this proceeding.
8If Mr Villalobos does not establish, on the balance of probabilities, that the second transport accident was caused by a seizure as a result of the first transport accident, then I may not take into account any impairment consequences of the second transport accident.
9Mr Villalobos further seeks an extension of time under s23A of the Limitation of Actions Act 1958 (“the LA Act”)[3] in respect of his cause of action against the driver of the other vehicle involved in the first transport accident.
[3] Summons filed 3 September 2020
10As the plaintiff must first access one of the gateways prescribed by s93 of the Act in order to pursue any cause of action against the other driver in the first transport accident,[4] I must determine his application for serious injury prior to considering the question of any extension of time.[5]
[4]Primary Healthcare Limited v Giakalis (2013) 38 VR 165, paragraphs [50]-[53]
[5]The proceeding commenced on 21 July 2022 by way of hearing Mr Villalobos’ summons filed 3 September 2020, and was adjourned by consent on 22 July 2022 for the purpose of hearing Mr Villalobos’ serious injury application at the same time as his s23A application
11For the reasons set out below:
(a) the second transport accident occurred as a result of the first transport accident;
(b) I grant the plaintiff leave to commence proceedings for common law damages in relation to the injuries sustained in both transport accidents; and
(c) the time within which Mr Villalobos may commence proceedings be extended under s23A of the LA Act to 30 September 2023.
The evidence
12Mr Villalobos relies upon his affidavits sworn 3 March 2017 and 30 July 2019, and unsworn affidavits dated 3 September 2020, 11 January 2021 and 28 January 2022 and the exhibits to those affidavits; a statutory declaration dated 28 October 2022; the affidavit of his former partner, Alejandra Arias, sworn 7 August 2019, and her statutory declarations dated 28 January 2022 and 28 October 2022, together with the affidavit of his father, Carlos Villalobos, sworn 30 July 2019 and his statutory declaration dated 28 October 2022.
13The TAC relies upon the affidavits of its solicitor, Natalie Anne Attard, sworn 17 March 2022 and 31 January 2023, and exhibits.
14Both Mr Villalobos and his former partner, Ms Arias, were called to give evidence and cross-examined. Medical reports and records, photographs, claim related documents and financial summaries from a joint court book, and several other documents were tendered.
Section 93 of the Transport Accident Act
15The principal issues in Mr Villalobos’ application under s93 of the Act are as follows:
(a) whether the plaintiff, as at the date of this application, is suffering consequences which satisfy the narrative test as a result of the first transport accident (as opposed to any discrete injury sustained in the second transport accident);
(b) whether Mr Villalobos’ present psychological condition is as a consequence of the first transport accident, the second transport accident, or unrelated factors;
(c) whether the second transport accident occurred as a result of the first transport accident. More particularly, whether Mr Villalobos has discharged his burden of establishing, on the balance of probabilities, that:
(i)the second transport accident occurred as a result of a seizure in connection with his use of Xanax; and
(ii)if so, whether this medication was prescribed as a result of his first transport accident or for unrelated factors;
(d) whether the consequences to him in respect of either his injury to the chest, neck, back, gastrointestinal system, left lower limb or any psychiatric or psychological injury satisfy the narrative test.
16Counsel for the TAC, Mr Pinkstone, described the issue of causation in relation to the second transport accident as the “red hot” issue in this proceeding.
Relevant principles – serious injury
17In order to be granted leave under sub-paragraph (a) of the definition of “serious injury”, Mr Villalobos must satisfy the Court that:
(a) the nature of any accident-related injury and its consequences are capable of being fairly described as “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”; and
(b) the injury is “serious” when assessed objectively in comparison with other cases in the range of possible impairments or losses.[6]
[6]Humphries and Anor v Poljak [1992] VR 129 at 140
18Satisfaction that the behavioural disturbance is “severe” under sub-paragraph (c) requires Mr Villalobos to satisfy a definition which is “stronger in terms of significance or gravity than ‘serious’”.[7]
[7]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 854
19The plaintiff bears the onus of establishing the consequences of the impairment of function from his injury sustained as a consequence of the first transport accident.
Credit
20The TAC has put the credit of Mr Villalobos in issue, in the sense that his evidence was unreliable and that I should exercise real caution where his evidence was not corroborated by medical evidence.[8]
[8]T247, L24
21I had the opportunity to observe Mr Villalobos in the witness box over two days. Whilst at times his evidence was inconsistent, for example in relation to the extent of his illicit drug use after the second transport accident, overall I found him to be doing his best to give a reliable account of his history and the consequences of his various injuries.
22There was reference to his reasonable presentation in the medical reports of examining medico-legal specialists, and there was no evidence of exaggerated pain behaviour. Dr Blombery commented that he “appeared genuine in his presentation”. I accept that opinion, and find that I may rely generally on his subjective accounts of the extent of the difficulties he experiences as a consequence of his injuries, both in an employment context and in his domestic, social, and recreational activities.
23To support his subjective evidence as to the consequences of his left lower limb injury, there is objective evidence of scarring over the medial aspect of his left big toe, and there is no plantar flexion. Upon examination by Dr Blombery in late 2018, there was a reduction of 2 centimetres in circumference of the left calf, and 1.5 centimetres in circumference of the left thigh, and he walked with a limp.
Background
24The plaintiff is now 51 years of age, having been born in March 1971 in Chile. He is separated from his wife of fifteen years, and they have two sons, aged around 15 and 19.
25Mr Villalobos arrived in Australia in 1987 at age fifteen. Although his native tongue is Spanish, he has reasonable English-language skills. He did not complete Year 11. Following high school, he worked on a production line for a time, then worked for about fourteen years with his father, who runs a maintenance business. He commenced an apprenticeship as an electrician in 2009 but did not complete it.
The first transport accident
26Following the first transport accident on 23 December 2003, Mr Villalobos was admitted to the Frankston Hospital, and later attended his general practitioner, Dr Campbell. X‑rays demonstrated the presence of a fractured sternum, and although that was treated conservatively, he had very significant chest pain which necessitated high doses of pain-relieving medication at times. He was certified as unfit for work for a number of years.
27He also experienced neck pain, with the development of headaches and migraines, which continue to the present day.
28Mr Villalobos had physiotherapy with Mr Jon Park, who diagnosed cervicogenic headaches in addition to his chest pain.[9] He gave a history in 2004 of having headaches at least every second day.
[9]Report of 16 September 2004, Joint Court Book (“JCB”) 360
29Mr Villalobos was diagnosed in 2004 with a severe Post-Traumatic Stress Disorder by his treating clinical psychologist, Dr Michael Papasava,[10] together with a Major Depressive Disorder with insomnia and suicidal ideation. These diagnoses were supported at the time by his treating general practitioner, Dr Campbell.[11]
[10]Report of 20 June 2005: JCB 167
[11]See for example, at JCB 159, report dated 14 September 2004
30Dr Campbell’s report of 24 January 2006 notes that Mr Villalobos remained incapacitated by chronic chest pain, depression and Post-Traumatic Stress Disorder. At that time, he was continuing with prescription analgesic opioid medication, anti-depressant medication, and acid-suppression medication to manage secondary gastro-oesophageal reflux.
31Following a period of time on weekly payments of compensation, in or about July 2006, Mr Villalobos returned to work driving a forklift with his brother’s business for several hours a day, four days a week, with no heavy lifting. He described this work as “very light”.
32As at 2006, Mr Villalobos had given various histories to examining doctors that he had given up snowboarding and indoor soccer.[12] He subsequently returned to those activities prior to the second transport accident.
[12]See for example the history to Dr Nigel Strauss, report dated 4 April 2006
33In 2006, Mr Villalobos purchased a house together with his then partner, Ms Alejandra Arias. They have two sons, born in or around 2004 and 2008 respectively. In his report of 15 May 2007, Dr Campbell noted a significant improvement in his condition with a return to work, albeit in a reduced capacity.
34Taxation returns disclose modest income prior to the first transport accident, being $23,740 in the 2003 tax year, and $29,749 in 2002. By 2009, Mr Villalobos was earning $41,856.
35Mr Villalobos’ relationship with Ms Arias broke down in 2010 and 2011, and they separated. This caused very significant emotional distress, which is reflected in the histories and treatment notes contained in the medical records.
The second transport accident
36Following the second transport accident, an ambulance took Mr Villalobos to The Alfred hospital, where he was found to have a subarachnoid haemorrhage, a right temporal lobe contusion of the brain, a fractured sternum, and a fractured proximal phalanx of the great toe. There was also a small to moderate mediastinal haematoma in association with the fractured body of the sternum. The bleeding around the brain and the sternal fracture were treated conservatively, and he was discharged from hospital after three days. Surgery to the great toe was deferred, and metalware inserted by Mr Bourke in 2015 remains in place.
37Mr Villalobos’ pain in his left big toe and second toe persisted, and he was referred to Mr Gerard Bourke, orthopaedic surgeon, on 28 October 2014. An MRI scan of the foot showed evidence of post-traumatic change and degeneration in the fourth and fifth tarsometatarsal joints. The toes were clawed, and a bone scan showed increased uptake in the calcaneocuboid joint. A cortisone injection had no impact.
38Mr Bourke operated on 2 June 2015 to fuse the first interphalangeal joint, and complete an extensor hallucis longus transfer, a first and second metatarsophalangeal joint release with flexor and extensor tenotomies, and a PIP fusion. Mr Villalobos only made a modest recovery and had ongoing pain.
39After a period of time on unemployment benefits from 2011, Mr Villalobos’ taxation returns disclose income of $40,420 from a labouring position at Hilton Manufacturing in the year ending 30 June 2018; and $32,007 in 2019, with a further amount of $4,813 from Centrelink benefits that same year.
40Other than occasional work in his nascent mobile phone repair business, Mr Villalobos is not currently employed, principally due to the restrictions on heavy lifting and other physical activity as a consequence of his left lower limb injury.
Medical evidence
Physical injuries
41In addition to fracturing his sternum in the first transport accident, Mr Villalobos suffered a musculoligamentous injury without radiculopathy to his cervical spine in the context of degenerative cervical spondylosis with mild nerve root impingement at the lower cervical levels.[13]
[13]Report of Mr Douglas Gardiner, orthopaedic surgeon, dated 10 July 2019, JCB 586
42In January 2018, Dr Peter Blombery, consultant physician, reported that Mr Villalobos had ongoing pain in his neck which had been present since the first transport accident. In his opinion, this pain is in the nature of a pain syndrome superimposed on previously asymptomatic degenerative changes in the cervical spine which have been rendered symptomatic by the first transport accident.[14]
[14]Ibid
43Dr Blombery opined:
“It is my opinion that the chest pain he had from 2003 to about 2011 was caused by a component of a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation. This is an organic disorder of pain nerve pathways … .”[15]
[15] Report of Dr Peter Blombery dated 28 January 2018, JCB 582
44The findings of a pain syndrome subsequent to the first transport accident affecting the chest and neck areas are supported by consultant psychiatrist, Dr Brendan Hayman. In 2005, Dr Hayman diagnosed a Chronic Pain Disorder associated with both psychological factors and a general medical condition, Major Depressive Disorder and a PTSD.[16] He recorded that Mr Villalobos was using significant amounts of analgesia for pain that appeared disproportionate to what might be expected from the nature of his injuries.[17]
[16] Report of Dr Brendan Hayman dated 4 August 2005, JCB 211
[17] JCB 213
45Dr David Jacka, addiction medicine specialist, also diagnosed Mr Villalobos as having a Chronic Pain Syndrome in 2017. He opined that this condition was exacerbated by opioid analgesia dependence with Major Depression and insomnia. He notes a past medical history of Chronic Pain Syndrome since the first transport accident.[18] In his opinion:
“… [Mr Villalobos’] medication requirements appear to be substantially, if not wholly, generated by his two car accidents. … The Suboxone program has progressively assisted his recovery by providing analgesia with physical and psychological stability, but had not yet restored full functionality
… It is likely he will require long term Suboxone analgesia.”
[18] Report of Dr David Jacka dated 9 May 2017, JCB 573
46As at late 2018, Br Blombery reported that the pain syndrome in the chest had resolved.
47In addition to a further fracture of the sternum, the injuries suffered by Mr Villalobos in the second transport accident included:
(a) injury to the left knee resulting in Grade 1 posterolateral instability with some restriction of movement (flexion).[19] The left knee may require arthroscopic treatment or further operative intervention to address the instability and any consequential chondral and meniscal damage and osteoarthritis;
(b) intra-articular fracture of the interphalangeal joint of the left great toe and soft-tissue injuries related to the left great toe and second toe, requiring surgery to fuse his left great toe, with significant ongoing dysfunction.
[19]Report of Mr Douglas Gardiner dated 10 July 2019
48I accept Dr Blombery’s evidence that Mr Villalobos now has a pain syndrome affecting his left foot, and that the prognosis for recovery is poor.
49In his opinion:
(a) the pain syndrome in the neck and left foot has an organic basis;
(b) Mr Villalobos’ major problem now relates to his left foot.[20]
[20] JCB 582
50As at 6 December 2022, Dr Anthony Menz, consultant orthopaedic surgeon, provided a short report to the TAC to the effect that Mr Villalobos’ injuries in the first transport accident have resolved, with the only ongoing condition being neck pain and headaches. In his opinion, this would not interfere with his ability to engage in employment.
51Dr Menz noted that Mr Villalobos has had a poor outcome from his left big toe fusion of the IP joint and continues to complain of pain. Dr Menz was unsure as to the source of this ongoing pain, was not provided with any of the plaintiff’s affidavit material and did not appear to take any history of the effects of this injury on recreational interests or the effects of the left lower limb injury on his employment at Hilton Manufacturing. Nevertheless, Dr Menz did not think Mr Villalobos’ injury required any further treatment, or that it interfered in any way with his domestic activities, social/leisure activities, or would prevent him from returning to work. In his view:
“This man has significant psychiatric problems associated with anxiety, depression, drug addiction and suicide ideation which would certainly impact on his ability to undertake a lot of the physical jobs.”[21]
[21] Report of Dr Menz dated 6 December 2022, JCB 624
Psychological injury
52In September 2019, Mr Villalobos was examined at the request of the plaintiff’s solicitors by consultant psychiatrist, Associate Professor Abdul Khalid, who diagnosed:
(a) Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood;
(b) Somatic Symptom Disorder with predominant pain (Chronic Pain Disorder);
(c) Substance Use Disorder;
(d) prescription drug abuse, currently in remission.[22]
[22]Report dated 7 September 2019
53Following re-examination of Mr Villalobos in 2023, Associate Professor Doherty reported to the TAC current psychiatric diagnoses of Depressive Disorder and a Substance Use Disorder (remitted under prescribed medication).[23] Whilst there was a heavy focus on pain, in his view, there was not a diagnosable pain-related psychiatric condition. As to prognosis:
“The forecast for the individual outcome is not favourable. The general level of coping is low. He is in unstable accommodation. He is not employed. He has hopes to start a business. He has significant issues with community adjustment and a paucity of social and personal networks. There are issues to do with his access to his children. He wishes that his life circumstances were better.”[24]
[23] JCB 632
[24]JCB 642
The cause of the second transport accident
54A significant issue in this proceeding is whether the entirety of the evidence establishes, on the balance of probabilities, that the first transport accident was a cause of the applicant’s current injuries and impairment, including those that relate to the second transport accident. Using the language of s93(1) of the Act, the injuries must be “as a result of” the relevant accident.
55At any subsequent common law trial, the Court will have the benefit of detailed evidence as to the more precise hurdle of factual causation pursuant to s49 of the Wrongs Act 1958. For the purposes of determining whether the first transport accident was a cause of the plaintiff’s injuries in the second transport accident, however, I make my determination on the basis of the evidence available to me in this proceeding, being a gateway to access common-law benefits.
56Mr Villalobos freely conceded both in his histories to doctors, and in the course of his oral evidence, that he has no memory of the second transport accident.
57At around 10.30pm on 15 October 2013, whilst driving home from his work as a cleaner, Mr Villalobos was involved in a single-vehicle accident, hitting a tree. The photographic evidence of the aftermath of the accident is graphic, and consistent with his evidence that he was lucky to survive.
58Mr Villalobos alleges that as a result of his treatment for injuries suffered in the first transport accident, he became addicted to prescription medication, and had a seizure following sudden withdrawal from Xanax, which caused him to black-out and lose control of his vehicle on 15 October 2013.
59The issue is important, because if the first transport accident is not a cause of the second transport accident, then Mr Villalobos was injured in 2013 in non-compensable circumstances.
60In the course of cross-examination, Mr Villalobos denied he fell asleep at the wheel, insisting that he believed the second transport accident was caused as a result ceasing Xanax three days before, which resulted in a seizure.
61Mr Villalobos provided a history to his psychiatrist, Dr Kruk, in January 2014 that he “drove a car into a tree during a panic attack”.[25] This was not put to Mr Villalobos in cross-examination. Mr Villalobos gave unchallenged evidence that he did not want to kill himself.[26]
[25]JCB 561
[26]T101
62He denied the second transport accident was caused by the cannabis and methamphetamine recorded in his system at the Frankston Hospital.[27] Although it was put to Mr Villalobos that the hospital recorded the presence of cannabis and methamphetamine in his system following the second transport accident, no hospital records were tendered and nor was there any expert evidence in relation to the significance, levels, or relevance of any such findings in relation to the second transport accident.
[27]Transcript (“T”) 99
63Whilst Mr Villalobos did not dispute he had ingested recreational drugs at a party a few days earlier, he emphatically denied that he was affected by cannabis or methamphetamine at the time of the second transport accident. In the context of the suggestion of a history of Substance Abuse Disorder (related to prescribed opioid and synthetic opioid medication and cannabis), on balance, I nevertheless accept Mr Villalobos’ evidence that:
“… I had my kids that weekend and then I went to work that Monday because it was a long weekend, because I did cleaning afternoon at night (sic). So I wasn’t high on drugs when I was with my kids. They were little. And I remember me dropping my kids at my mother’s place because she lived around the corner from me. I dropped my kids there for her mother to pick them up and then I went to work. Come back and that’s when the accident happened.”[28]
[28]T97
64The TAC ultimately submitted that Mr Villalobos may have fallen asleep and hit a tree. No other alternative cause of the accident was put to him in cross-examination; its case is principally that Mr Villalobos has not established that the first transport accident caused the second transport accident.
65The issue confronting Mr Villalobos’ claim is whether or not the evidence establishes, on the balance of probabilities, that:
(a) he was being prescribed Xanax at the time, at least predominantly, as a consequence of the first transport accident;
(b) if so, that his sudden withdrawal from Xanax resulted in seizures;
(c) a seizure was the cause of the second transport accident.
The Plaintiff’s use of prescription medication
66I accept Dr Blombery’s opinion that the chest pain Mr Villalobos suffered from 2003 to about 2011 was caused by a component of a non-specific pain syndrome, being an organic disorder of the pain-nerve pathways.
67Whilst his chest pain has since resolved, Mr Villalobos became addicted to prescription medication in the context of this pain syndrome, and the accident-related Post-Traumatic Stress Disorder, Depression and Anxiety.
68He attended a specialist addiction medicine outpatient clinic for this condition in July 2014 where he received treatment until June 2016.[29] As part of that treatment, Mr Villalobos was placed on the Suboxone program, and weaned from other medication. It is not in dispute that after the second transport accident, Mr Villalobos dabbled in heroin.
[29] Report of Dr David Jacka, addiction medicine specialist, dated 9 May 2017, JCB 573
69His unchallenged evidence was that:
“In addition to chest pain my physical symptoms involved neck pain and the development of headaches and migraines as well. Such conditions were a constant source of pain and disability and have remained so down to the present day. Over a period of some years I was prescribed highly addictive opiate medications including Tramal SR 150 mgs, Tramal 50 mgs taken as required, Panadeine Forte, anti-inflammatory Brufen medication and Somac to assist with stomach pain. I was prescribed Valium to help me sleep. With the development of increasingly severe headaches I was also prescribed Sandomigran medication for the relief of some of those symptoms but I found that the medication was only of limited benefit to me.”[30]
[30] Affidavit of the plaintiff sworn 3 March 2017, paragraph [12]
70The records of his treating general practitioner at the time, Dr Campbell, were tendered.[31] These records confirm the prescription of Xanax to the plaintiff. They also support Mr Villalobos’ oral evidence as to the number of other medications prescribed, and the existence of severe pain and analgesic treatment for headaches, poor sleep, depression and chronic pain following the first transport accident.
[31]Exhibit 1
71Mr Villalobos was seeing other general practitioners for prescription Xanax at the time, which is consistent with his evidence of an addiction to prescription medication. Irregular dosages of Xanax are also recorded.
72The evidence in this proceeding establishes that:
(a) from June 2004 until March 2005, his general practitioner prescribed Panadeine Forte; from November 2005 to October 2013, Panadeine Forte and Tramal, and from November 2006 to October 2013, Brufen;
(b) in 2005 and 2006, Mr Villalobos was taking up to six Panadeine Forte tablets per day, together with Tramal, 150 milligrams slow release, twice daily, and Tramal, 50 milligrams prn.[32]
[32] JCB 211 and 204
73He was also prescribed Valium for sleep; a number of anti-depressant medications as a result of his Depression and a Post-Traumatic Stress Disorder, and medication for his gastrointestinal condition.
74As at March 2006, gastroenterologist, Dr Paul Desmond, recorded current medications as Tramal, Panadeine Forte, Metoclopramide, Effexor and Pariet.[33]
[33] JCB 575
75Dr Michael Robertson, consultant chemist, pharmacologist and forensic toxicologist, reported that:
“… At various times between the time of the crash and 14 October 2013 Mr Villalobos was prescribed a number of opioid and psychiatric medications for one or more of: pain, post-traumatic stress disorder; adjustment reaction/disorder; depressive disorder; panic disorder; insomnia; including:
a. Xanax (alprazolam)
b. Antenex (diazepam)
c. Panadeine Forte (codeine and paracetamol)
d. Dothep (dothiepin)
e. Mirtazepine (sic) (mirtazapine)
f. Tramal (tramadol)
g. Effexor (venlafaxine)
h. Endep (amitriptyline)
i. Seroquel (quetiapine)
j. Valpro (valproic acid)
k. Brufen (ibuprofen)
l. Sandomigran (pizotifen)
m. Aropax (paroxetine).”[34]
[34] Report dated 14 November 2018, JCB 697
76Mr Villalobos started taking Xanax to deal with his Anxiety as a result of the first transport accident.[35] Subpoenaed records show Mr Villalobos was first prescribed Xanax by his general practitioner, Dr Geoffrey Campbell, in November 2011. In his clinical notes, Dr Campbell recorded:
“… was given Xanax by a friend and responded well: less body …aches and slept better.”[36]
[35] T94
[36]Clinical note of Dr Geoffrey Campbell dated 14 November 2011, bundle of subpoenaed documents (“BSD”) 364
77Between 14 November 2011 and 4 October 2013, Dr Campbell and other practitioners at his clinic prescribed Xanax to Mr Villalobos on fourteen occasions. He was last prescribed Xanax in February 2014.[37]
[37] Clinical note of Dr Geoffrey Campbell dated 11 February 2014, BSD 369
78During the period Mr Villalobos was taking prescription Xanax, he was, on occasion, taking a higher dosage than the doctors had prescribed.[38] For example in her clinical notes of 16 March 2012, Dr Gayl Robinson, general practitioner, noted:
“[D]iscussed with patient re increase in [X]an–x - tolerance/addictive potential.
stressed need to only take 1 nocte
… .”[39]
[38]See clinical note of Dr Emma Donovan dated 16 December 2011, BSD 364; clinical note of Dr Geoffrey Campbell dated 13 February 2012, BSD 365
[39] Clinical note of Dr Gayl Robinson dated 16 March 2012, BSD 365
79The medical records establish that Dr Campbell was working with Mr Villalobos to make a sedative management plan to address his dependence upon prescription medication.
80An entry on 5 January 2013 records that Dr Campbell spoke to a Dr Hall, who is apparently connected to the TAC. The progress note reads “TAC has concerns about Xanax use. Psychiatric advice being sought.”
81There is a further entry in March 2013 recording an aim to reduce Xanax, and again in July 2013. Other drugs were prescribed but not tolerated, and Mr Villalobos was on quite high doses of Tramal for severe pain.[40] He was prescribed more Xanax tablets by Dr Campbell on 4 October 2013, less than two weeks before the second transport accident.
[40] Tramal is an opioid-based pain medication
82Whilst there is no report from Dr Campbell addressing the issue of the reason for prescription of Xanax, the progress note of 14 November 2011 records that Mr Villalobos was given Xanax by a friend and responded well. It goes on to record that Dr Campbell discussed management of his symptoms, and it is apparent that he regularly prescribed Xanax to Mr Villalobos from that time. Other notes record that Mr Villalobos was using Xanax, mainly to sleep, as it was much better than Diazepam (Valium).
83I am comfortably satisfied that the prescription of Xanax was in the context of his treatment for chronic pain, anxiety and difficulties with sleep as a result of the first transport accident.
84Associate Professor Peter Doherty and Dr Peter Blombery both accept that Mr Villalobos developed a dependence on prescribed and non-prescribed substances.[41]
[41]Report of Associate Professor Doherty dated 17 January 2023, JCB 437-458; report of Dr Peter Blombery dated 28 January 2018, JCB 578 at 581
85In the context of ongoing pain in his chest and neck (including an organically based pain syndrome), and his post-traumatic stress disorder, I find that Mr Villalobos became dependent on a range of prescription medications as a result of the first transport accident.
86I also accept that Mr Villalobos’ irregular use of Xanax resulted in his ceasing Xanax suddenly from time to time.
The Plaintiff’s history of seizures
87In his affidavits sworn 3 March 2017 and 28 January 2022 respectively, Mr Villalobos says:
“… one of the side-effects of ceasing to use … [Xanax] was that I suffered a number of seizures in which I lost consciousness.[42]
…
… I had a seizure in front of my kids watching a movie and I cannot remember what happened, I had another seizure in my cabin hit the back of my head and woke up with blood all over the back of my head the last seizure was the day I crashed on to the tree coming home from work. That was when I went to see another doctor to get me off the medication.”[43]
(sic)
[42] Plaintiff's affidavit sworn 3 March 2017, paragraph [19], JCB 129
[43] Plaintiff's affidavit dated 28 January 2022, paragraph [3], JCB 146
88His oral evidence included that he had two seizures before the second transport accident:
(a) the first in around 2011:
“… I was in a cabin. All I remember from that is hitting my head on that oil heater and then waking up. I don’t know how I woke up and the pillow was full of blood.[44]
…
One by myself at the cabin place, I fell back and hit myself on one of those oil heaters that are made of metal and I wake up – I don’t know how, I wake up in my little bed, so it’s small. I wake up in my bed with the pillow covered in blood. I hit my head and somehow, I managed to lie on my bed and just laid down and then woke up, I don’t know how long later and my pillow was just covered in blood, my head was wet. I felt cold, so much blood coming out of my head. … .”[45]
(b) and a second, in front of his children:
“… I went to live at my mother’s place around the corner and then I was watching TV with my kids and then I [had] another seizure. … I was next to me in my big bed watching the big screen in my room and then it happened. So my kids went screaming down the stairs, screaming for my mum and my brother and see and they told me they’d come up and they slapped me around and me, I’m trying to grab things. I grabbed my mother by accident, I don’t know what I d–d - I can’t remember what I did … .”[46]
“That was my second seizure, okay, … and I didn’t know why, and that’s t–e - the last seizure happened when I crash[ed] into that tree and then I thought, ‘This is because I stopped taking Xanax for two or three days’, and because I didn’t have any with me.”[47]
[44] T93-94
[45] T162
[46] T163
[47] T107
89Objective medical records record that Mr Villalobos ceased Xanax suddenly in October 2012 when his prescription ran out. He reported to his general practitioner on 5 November 2012 that, as a result, he had a seizure, fell, and had a laceration to his head which bled profusely.[48] His general practitioner at the time, Dr Glenn Mathieson, recorded, in a progress note:
“Advised stopped xanax when ran out about a month ago and had [a] seizure, fell and laceration from head that bled profusely
Advised saw a nearby GP a few days later, who prescribed him the xanax and advised can not cease suddenly
… .”[49]
(sic)
[48] Clinical note of Dr Glenn Mathieson dated 5 November 2012, BSD 366
[49] BSD 366
90He gave a consistent history in 2023 to Associate Professor Peter Doherty, consultant psychiatrist:
“… He stopped the medication alprazolam (Xanax) … .”[50]
“… and that gave him seizures, he had about three seizures. He told me he hit the back of his head on a heater and there was blood and that was due to a seizure.
… .”[51]
[50]Report of Associate Professor Peter Doherty dated 17 January 2023, JCB 638
[51] Report of Associate Professor Peter Doherty dated 17 January 2023, JCB 636
91Mr Villalobos gave a history of seizures “until 1/12 ago” to a mental health nurse at Monash Health on 15 July 2014.
92The first evidence of Mr Villalobos reporting that the second transport accident was as a result of a fit is contained in a letter from Melbourne Injury Lawyers to him dated 15 January 2015. In confirming his instructions, the solicitors wrote:
“You left to go home and were travelling on Hall Road in Carrum Downs at approximately 10:00 to 10:30pm at night. You believe that you may have had a fit and lost consciousness and crashed into a tree. You suggest that it was the Xanax you were being prescribed that caused you to have such episodes. … .”[52]
[52]Letter from Melbourne Injury Lawyers to the plaintiff dated 15 January 2015, JCB 115
Medical evidence
93His general practitioner between September 2014 and September 2015, Dr Chia Lern Bien, was “unable to comment” about the relationship between the first transport accident and an addiction to Xanax/opiates, or Xanax cessation and fitting whilst driving 2013.[53]
[53] JCB 572
94The first history that the second transport accident was caused by a seizure due to withdrawal from Xanax was recorded by Dr Peter Blombery, consultant physician, in his report dated 28 January 2018:
“His major problem relates now to his left foot where he has pain after the injury that he sustained in the motor vehicle accident of 2013. That could be secondarily related to the motor vehicle accident of 2003 insofar as that accident resulted in secondary depression and anxiety and posttraumatic stress disorder which he began to take large amounts of Xanax. It was the withdrawal from the Xanax during treatment when he had his further motor vehicle accident when he had a seizure.”[54]
[54] Report of Dr Peter Blombery dated 28 January 2018, JCB 582
95Dr Blombery appears to accept the phenomena of seizures caused by withdrawal from Xanax.
96Dr Michael Robertson, chemist, pharmacologist and forensic toxicologist, provided his expert opinion that withdrawal from Xanax may result in seizures,[55] but he was unable to say whether the second transport accident was as a result of such a seizure.
[55]Report dated 14 November 2018; see also reports of Associate Professor Khalid
97In consultant psychiatrist, Associate Professor Abdul Khalid’s opinion:
“Side effects of Xanax include drowsiness, light-headedness and impaired concentration which can affect driving. Further, seizure/convulsion is a known feature of Xanax withdrawal. It is possible that Xanax use or abrupt cessation may have contributed to his 2013 transport accident.”[56]
[56]Report of Associate Professor Khalid dated 7 September 2019, JCB 599
98In his report dated 17 January 2019, Dr Nigel Strauss, psychiatrist, cautiously opined that:
“I believe that the effects of the 2003 accident including his psychiatric injuries ultimately helped to contribute to his 2013 accident in that this accident may well have been caused by his addiction to Xanax which he began using as a consequence of the effects of the 2003 accident.”
99The TAC accepts that withdrawal from Xanax, especially following heavy use of prescription, can result in seizures.[57]
[57] T157, T257, T260
100Dr Campbell’s brief report of 21 November 2018 to Melbourne Injury Lawyers does not provide any comment as to Xanax at all, including its role, if any, in the second transport accident. The report, in fact, appears to address injuries arising out of the first transport accident discretely, as it relates to the fractured sternum, soft-tissue injuries including neck pain, and the Depression and Post-Traumatic Stress Disorder. It does not mention the injury to the left lower limb.
101There is no mention in either the hospital records or Dr Campbell’s notes of any link between Xanax and the second transport accident.
102The TAC Claim Form dated 16 October 2013 does not include any reference to Xanax. The Claim Form was evidently completed by somebody at the Frankston Hospital, and signed by the plaintiff when under acute care. Mr Villalobos claims to have no recollection of his time in hospital or speaking with any doctors.
103Associate Professor Doherty appears to accept the key elements of Mr Villalobos’ history:
“… The plaintiff was prescribed alprazolam (Xanax) and became dependent on it, and there were withdrawal seizures.
… the use of a prescribed substance led to the 2013 transport accident.”[58]
[58] Report of Associate Professor Peter Doherty dated 17 January 2023, JCB 647
Did a seizure cause the second transport accident?
104The trial was conducted by way of cross-examination of the plaintiff, tender of relevant documents, including medical reports, and submissions, without testing any of the opinions expressed by the relevant doctors. In my view, for the purposes of an application of this type under s93 of the Act, the evidence before me as a whole establishes, on the balance of probabilities, that a Xanax withdrawal-related seizure caused the second transport accident.
105Insofar as it might be said that the evidence in total amounts to no more than a possible causal relationship between the first transport accident and the second, I rely on the Full Court decision of Dahl v Grice,[59] where Gobbo J stated:
“At the trial there had been a considerable body of expert medical opinion. Of the five experts that gave evidence, two were prepared to find a possible causal relationship between the accident and the haemorrhage. Neither of these two doctors spoke in terms of probability rather than possibility. … .”
[59] [1981] VR 513 at 515
106Further, his Honour cited with approval[60] the decision of EMI (Australia) Ltd v BES,[61] where Asprey JA said:
“… Where scientific knowledge properly adduced in evidence as expert opinion deposes to more than one event as a possible cause of a medical condition and where it appears from the evidence accepted by the tribunal of fact that of those possible causes of that condition one of them, on the balance of probabilities, is more likely than the others to be the cause of the medical condition in question, in this case the syncopal episode, then the tribunal may properly draw the inference of fact that such was the operating cause of that condition in the particular circumstances. Reliance for the purpose of drawing that inference may be placed by the tribunal on the evidence as a whole and is not confined to the medical evidence only (see St. George Club Ltd. v. Hines …), except where all the medical evidence agrees that the matters sought to be relied upon must be excluded from consideration as lacking justification for the drawing of the inference. That is not the case here. … .”
[citation omitted.]
[60]Ibid at 520-521
[61] [1970] 2 NSWR 238 at 243
107It remains Mr Villalobos’ burden to establish causation, in the sense considered in March v E & MH Stramare Pty Ltd.[62]
[62](1991) 171 CLR 506; see also Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs [245]-[250] and the cases referred to in those paragraphs; and Rowe v Transport Accident Commission [2017] VSCA 377
108From 2018, Mr Villalobos was consistent in his reporting to medical practitioners that a seizure he suffered due to withdrawal from Xanax caused the second transport accident.[63]
[63]See reports of Associate Professor Peter Doherty dated 8 April 2018 and 17 January 2023, JCB 579 and JCB 636; report of Mr Douglas Gardiner dated 10 July 2019, JCB 587; report of Associate Professor Khalid dated 7 September 2019, JCB 595
109In my view, quite independently of Mr Villalobos’ subjective and self-serving conviction about the circumstances of the second transport accident, the evidence establishes that he:
(a) was prescribed Xanax by Dr Campbell as part of his treatment in relation to the first transport accident;
(b) became addicted to prescription medication as a consequence of that accident;
(c) separated from his partner in 2010, and the related family problems and psychological symptoms in 2010 and 2011 coincided with his increasing dependence on medication to treat his accident-related symptoms, and his erratic behaviour;
(d) was warned about the addictive potential of Xanax on 16 March 2012, by Dr Gayl Robinson, another GP at the same clinic as Dr Campbell;[64]
(e) suffered seizures in or about October 2012 and on another occasion prior to the second transport accident, in the context of a sudden withdrawal from Xanax;
(f) was irregular in his compliance with prescribed dosages of prescription Xanax from 2012, with the TAC expressing concerns to his GP about Xanax use in January 2013, and his GP attempting to manage his irregular use of Xanax until shortly prior to the second transport accident;[65] and
(g) consulted addiction specialist, Dr Jacka in June 2014, which resulted in prescription of Suboxone to manage his chronic pain and addiction to opioid and synthetic opioid medication, Major Depression and insomnia, and his use of heroin since the second transport accident to supplement his prescribed medication.
[64] BSD 365
[65] Clinical notes of Dr Campbell, BSD 366-368
110While very finely balanced, I find that it is more probable than not that Mr Villalobos experienced a seizure whilst driving home from work on 13 October 2013, which caused him to lose control of his vehicle and crash into a tree. I further find that had he not been experiencing ongoing pain, depression and anxiety and issues with sleep following the first transport accident, he would not have been prescribed Xanax and developed his addiction to prescription medication.
111Mr Villalobos had been prescribed a significant number of medications in the nature of opioid, synthetic opioid and psychiatric medication in relation to his pain, Post-Traumatic Stress Disorder, Adjustment Disorder with Depression, and insomnia,[66] Xanax being one of these. The fact of other seizures in the context of the evidence of his irregular pattern of use of Xanax, and consideration of the evidence as a whole, leads to a finding, on the balance of probabilities, that the second transport accident occurred as a consequence of the first.
[66]JCB 697
Consequences – pain and suffering
112I accept Mr Villalobos’ evidence that before the first transport accident, he was a well-liked person who enjoyed skating, snowboarding, indoor soccer, and who was hardworking, with a loving partner. He travelled regularly. Despite the injuries sustained in the first transport accident, he achieved much, including a return to social, sporting and recreational pursuits, children and purchasing a home with his partner. Ongoing chronic pain and psychological conditions, however, led to his addiction to opioid analgesics and psychoactive medication, which resulted in the second transport accident and his present circumstances of entrenched pain and incapacity for work.
113In my view, the consequences of the injuries sustained by the plaintiff in the second transport accident are at least very significant and more than marked.
114Mr Villalobos’ injuries to his left lower limb sustained in the second transport accident have directly impacted many aspects of his life.
115As a consequence of his injuries in the second transport accident, Mr Villalobos developed clawed great and second toes that were causing pressure symptoms with weightbearing. Mr Gerard Bourke, orthopaedic surgeon, after guided injection of local anaesthetic and cortisone treatment, in 2015 performed a left first interphalangeal joint fusion, extensor hallucis longus transfer and MTP joint release; and a second MTP joint release, flexor and extensor tenotomies and PIP fusion.[67]
[67]See report of Mr Gerard Bourke dated 28 February 2016
116Mr Villalobos has ongoing inflammation and pain in his left foot with an overlay of a Chronic Pain Syndrome.
117I accept Mr Villalobos’ evidence that his left knee has a lump in it, and the function of his left lower limb is considerably restricted, having regard to the injuries to the knee and foot. He suffers constant but variable levels of pain, his walking is limited, and so, too, is his ability to stand beyond a short period of time.
118His claim is supported by the presence of early degenerative changes in his left knee in 2018, with a suprapatellar bursal effusion with minor synovial debris in the knee shown on ultrasound in 2015.
119It is not in dispute that the great toe is fused, and that he experiences ongoing pain from this injury which has resolved into a chronic pain condition.
120Having returned to playing soccer, snowboarding and skateboarding after the first accident, Mr Villalobos’ foot injury now prevents him from taking part in any of those activities. I regard this as very significant; even more so as his foot injury prevents him from playing soccer with his younger son, which is particularly distressing for Mr Villalobos.
121The addiction to medication has also had a very negative effect on Mr Villalobos’ life.
122His current medication is Valium every second day for anxiety and sleeping, an antidepressant (the name of which Mr Villalobos could not recall), and Suboxone 2.5 milligrams (down from 32 milligrams); and Nurofen.
123Mr Villalobos relies upon the effects of his chronic pain and psychological injury on his marriage. I accept that his injuries and treatment, including his addiction to prescription medication, are likely to have had an effect on his relationship. I place little weight on this due to the complex nature of personal relationships.
His sleep is an ongoing consequence of his psychological condition, and has been an issue for him since the first accident. Mr Villalobos takes Valium every second day to help him sleep:[68] “… I can’t sleep. My sleeping patterns are terrible. I wake up every hour and a half, two hours. It takes me 40 minutes, more, to get to sleep and I wake up often, four times a night. I have broken sleep, a lot of broken sleep.”[69]
[68] T161
[69]T199
124This is a significant consequence. In Haden Engineering Pty Ltd v McKinnon,[70] the Court of Appeal stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. ... .”[71]
[70](2010) 31 VR 1
[71]Ibid at paragraph [45]
125Mr Villalobos currently takes Suboxone for pain management, as well as:
“… an opiates blocker for my painkillers that I was taking. I was taking Tramadol, the opiates, 150, 50 slow release, I was taking Panadeine Forte, everything. I was just - a lot of opiates.”[72]
[72]T198
126As the Court of Appeal stated in Kelso v Tatiara Meat Co Pty Ltd:[73]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[74]
[73](2007) 17 VR 592
[74]Ibid at paragraph [199]. See also Thacker v Transport Accident Commission [2021] VCC 814 at paragraph [49] quoting Kelso v Tatiara Meat Co Pty Ltd (ibid) at paragraph [199]
Capacity for employment
Before the second transport accident
127On 22 July 2005, Dr Chris Baker, specialist in occupational medicine and public health medicine, examined Mr Villalobos. During the examination, Dr Baker noted that Mr Villalobos moved freely without any obvious incapacity and there was no significant ongoing pathology. He considered that Mr Villalobos had predominantly retained capacity to undertake his pre-injury employment duties.[75] Dr Baker opined:
“In regard to work capacity, he notes his previous duties were physically strenuous involving lifting and moving ladders and climbing and descending ladders. However, he has previously worked in a factory and has a forklift driving licence. I would therefore consider that the most appropriate management would be to have him participate in a vocational assessment and identify alternate duties which are factory based. I consider he is capable of undertaking work such as forklift driving. He perceives himself as totally incapacitated for his pre-injury duties but I would estimate that he has an 80% capacity for his pre-injury employment. … .”[76]
[75] Report of Dr Chris Baker dated 9 August 2005, JCB 220
[76] Ibid at JCB 220-221
128Mr Jonathon Rush, orthopaedic surgeon, opined that at the time of examination in 2006, Mr Villalobos was fit for light work which did not involve a lot of bending, heavy lifting, or remaining in one position for long periods:
“As far as I can determine the patient has sustained no serious injury to his spine and I believe he can look forward to the whole condition slowly settling over the next year or two. … .”[77]
[77] Report of Dr Jonathon Rush dated 5 June 2006, JCB 204
129Dr Campbell provided Mr Villalobos a certificate of partial capacity on 9 January 2007.[78] Dr Campbell noted that Mr Villalobos had returned to work part time on 25 July 2006, working four days per week and six hours per day. His duties were light in nature which included some forklift operation and work as a truck driver’s assistant. By 15 May 2007, that capacity had increased to six to eight hours per day, with no heavy lifting. He opined:[79]
“Overall there has been a significant improvement in his condition with a return to work, albeit in a reduced capacity. In my opinion long term employment at the currently documented level will be appropriate.”
[78] JCB 163
[79] JCB 164
130I accept the opinions of Mr Rush and Dr Campbell that, prior to the second transport accident, Mr Villalobos had a capacity for light and modified duties.
131In 2009, Mr Villalobos obtained employment as part of his electrical training and in order to become a fully qualified electrician. At that stage, he needed another twelve to eighteen months employment to complete his apprenticeship. In his first affidavit, he says that whilst working for Australian Power and Gas in 2010, he had to cease that work “because of some of the side effects arising from” the first transport accident.[80] Those side effects are not precisely identified, but seem to involve neck pain and the development of headaches and migraines. By that stage, his chest pain had largely resolved, and his condition of Post-Traumatic Stress Disorder was in remission, or at least substantially improved.
[80]Affidavit of the plaintiff sworn 3 March 2017, paragraph [7]
132I accept the TAC’s submission that his separation from Ms Arias in 2010 resulted in a marked depression, which is more likely to have been the predominant cause of his cessation of employment with Australian Power and Gas. I accept that Mr Villalobos would now like to complete his apprenticeship, but there is considerable doubt if he now has capacity to do so.
After the second transport accident
Left lower limb
133Based on his last consultation on 26 June 2014, Mr Kelvin Leung, physiotherapist, opined:
“… Daniel’s injuries would have prevented him from any work that required lifting more than 5kg, or any role that required him to stand for more than 30 minutes, due to muscular tightness and weakness in his legs. … .”[81]
[81] Report of Mr Kelvin Leung dated 19 January 2016, JCB 567
134Mr Leung also reported that the injuries sustained would have then prevented Mr Villalobos from most of his social activities due to his poor mobility.
135Dr Chia Lern Bien, general practitioner, was of the opinion in 2016 that Mr Villalobos’s chronic foot pain and mood disorder significantly affected his ability to work, and that “his depression/anxiety would have adversely affected his general enjoyment of life”.[82]
[82] Report of Dr Chia Lern Bien dated 12 April 2016, JCB 572
136Mr Gerard Bourke, treating orthopaedic surgeon, expressed the view in February 2016 that the left foot is not the major cause of Mr Villalobos’s inability to work. He reported that with the digits realigned there should be no problem with weightbearing, and that the left foot would not have been the major cause of impediment to his activities of daily living. However, Mr Bourke concluded that he was not qualified to make impairment judgments, especially since there are many other factors that he has not been involved in that have resulted in overall impairment.[83]
[83] Report of Mr Gerard Bourke dated 28 February 2016, JCB 570
137Following irregular work, Mr Villalobos returned to work after the second transport accident in 2017. He was employed by Hilton Manufacturing on a casual basis from 17 July 2017 on an assembly line. On 4 April 2018, he was made a permanent employee and was moved to the paint line department. His duties involved painting items, removing them from a drying oven and dispatching them; and performing maintenance duties. His sworn evidence was that he had a lot of pain due to the heavy work. To his credit, Mr Villalobos persevered until he was made redundant on 5 April 2019 due to a decline in workload, and issues with his punctuality, and performance level.[84]
[84] MJM Employment Report dated 19 September 2019, JCB 710
138Mr Villalobos says that he struggled with his work at Hilton Manufacturing due to the lifting requirements, and that his duties in this role caused ongoing pain in his left foot and left knee; however, he persevered despite the pain because of his financial and child support commitments.[85] He says that these consequences caused him difficulties with his sleep and that his left lower limb condition deteriorated. On his account, these consequences meant that at times he was unable to fulfill his duties.[86]
[85] Affidavit of Mr Daniel Villalobos sworn 30 July 2019 at paragraph [4]
[86]Affidavits of Mr Daniel Villalobos dated 3 September 2020 at paragraph [7]; 11 January 2021 at paragraph [7], and 28 January 2022 at paragraph [9]
139The TAC submits that this period of full-time work of approximately two years is inconsistent with the existence of serious injury. I accept Mr Villalobos’ evidence as to the pain and restriction he was experiencing at the time, and this evidence is supported by the unchallenged evidence of his father[87] about the difficulties his son was having throughout this period.
[87] Affidavit of Carlos Villalobos sworn 30 July 2019
140Dr Graeme Doig, specialist in general orthopaedics and trauma, noted that at the time of his examination in September 2017, Mr Villalobos was working full time with an engineering company doing assembly work, and he was performing normal work.[88] On this basis, he opined that the question regarding Mr Villalobos’ future incapacity (total or partial) was not applicable.[89]
[88] Report of Dr Graeme Doig dated 5 September 2017, JCB 608
[89] JCB 611
141Dr Blombery’s report of 28 January 2018 records that Mr Villalobos was complaining of experiencing “quite a lot of pain at the end of the day”, and that he was looking for an “alternative job which did not involve such heavy work”.[90] Further, that:
“It is my opinion that he would have no capacity for his pre-injury duties as a factory hand and maintenance. He is able to perform light duties which do not involve excessive amounts of weightbearing, and this is likely to remain the case for some time into the future. The specific injury affecting that capacity is the injury to his left foot.”[91]
[90] Report of Dr Peter Blombery dated 28 January 2018, JCB 580
[91]Ibid at JCB 583
142Mr Douglas Gardiner, consultant orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 10 July 2019. He found clinical evidence of mild posterolateral instability of the left knee which may, in the long term, result in the development of osteoarthritis, and that the great toe and second toe will remain stiff and dysfunctional in the foreseeable future.
143In terms of work capacity, Mr Gardiner’s opinion in July 2019 was that:
“Mr Villalobos is adamant that his work capabilities have been markedly reduced as a result of both of his accidents. I consider that seeing as I am mainly instructed regarding the accident of 2003, Mr Villalobos’ neck and chest injuries were of a moderate degree but have been somewhat overwhelmed by the apparent psychological dysfunction that occurred following this injury. I believe that this aspect has had an effect on Mr Villalobos’ ability to deal with his second accident of 2013. Therefore, overall, he is unfit for his pre-injury duties. Alternative employment is theoretically possible, although I believe the combination of physical and psychological disabilities will prevent a meaningful return to pre-injury duties.”[92]
[92] JCB 591
144Mr Gardiner appears to accept that Mr Villalobos’ recreational and social activities have also been severely curtailed by a combination of his physical and psychological injuries, which are permanent.[93]
[93]JCB 591
145Even if notionally qualified for light work, I accept Mr Villalobos’ evidence that there was not work currently available that he can perform. I find that his work capacity has been at least significantly and adversely impacted by reason of his left lower limb injuries. He has been on unemployment benefits since April 2019. Mr Villalobos impressed me as a man who cared deeply for his family, in particular his two children, and that his persistence with work over the years in order to support his family showed a degree of stoicism. He is presently intending to develop a small business as a self-employed mobile phone repair technician.
Psychiatric injury
146Associate Professor Peter Doherty, consultant psychiatrist, reported in April 2018 that Mr Villalobos has capacity for full-time employment from a psychiatric perspective.[94] He opined that the diagnosable psychiatric conditions are remitted and do not incapacitate Mr Villalobos for work. Following further examination of the plaintiff in January 2023, Associate Professor Doherty reported to the TAC that:
“… The remitted conditions make no significant impact on the plaintiff’s undertaking of core ADLs. There is no interference in self-care, personal hygiene, communication, and travel. His capacity to undertake and manage domestic activities is not impaired.
…
He continues to enjoy music. He is in a relationship, and comments that socially he is doing less. … There appears to be a small interference in social, leisure and recreational activities.
…
[94] Report of Associate Professor Peter Doherty dated 8 April 2018, JCB 432
The remitted depressive disorder does not current[ly] incapacitate the plaintiff for work. The use of Suboxone does not make a significant interference with his capacity for work. … .”[95]
[95] Report of Associate Professor Peter Doherty dated 17 January 2023, JCB 649
147Dr Nigel Strauss, consultant and occupational psychiatrist, opined in January 2019 that Mr Villalobos is capable of performing simple and menial tasks, however, he is incapable of doing any complex work or electrical work. He relates this to Mr Villalobos’ psychiatric and possible cognitive problems. He concluded that he has a partial incapacity for work due to the two transport accidents.[96] He accepted that Mr Villalobos’ transport accidents have adversely affected his ability to cope with an electrical apprenticeship and he will be unable to train and work as an electrician in the future. Dr Strauss also reported that Mr Villalobos struggles to look after himself, but he can manage, and that he is restricted in relation to social and recreational pursuits due to the effects of the transport accidents.[97]
[96] Report of Dr Nigel Strauss dated 17 January 2019, JCB 196
[97] JCB 197
148Associate Professor Abdul Khalid, consultant psychiatrist, echoes the opinion of Dr Strauss. He reported in September 2019 that Mr Villalobos has no capacity for pre-injury duties or alternative employment due to his psychiatric conditions, particularly his Somatic Symptom Disorder with predominant pain (Chronic Pain Disorder). Associate Professor Khalid’s opinion also included the following:
(a) he has no psychological capacity to return to professional training and study to complete his electrical apprenticeship;
(b) Mr Villalobos’ recreational and social activities have been significantly affected by his psychiatric conditions, and his activities of daily living mildly affected; and
(c) his psychiatric conditions are permanent.[98]
[98] JCB 600
149Mr Villalobos has no capacity for pre-injury duties and only partial capacity for alternative employment due to his psychiatric condition.
Has the Plaintiff suffered a serious injury?
Chest
150Mr Villalobos fractured his sternum in the first and second transport accidents. Mr Villalobos’ chest pain from the first transport accident, including a Chronic Pain Disorder, resolved in or about 2011, and he did not rely upon any ongoing consequences of the chest injury he sustained in the second transport accident.
151This injury does not satisfy the narrative test, but remains relevant in a causation sense, because it necessitated high dosages of pain-relieving medication.
Neck and back
152The principal consequence which persists from the first transport accident is neck pain, but, more significantly, development of cervicogenic headaches and migraines. Mr Villalobos’ evidence is that he has headaches daily, and migraines twice a week, which are a constant source of pain and disability.
153He has been prescribed Valium and many other medications over the years to assist him sleep in the context of this pain, but identifies no other specific consequences in terms of his employment or domestic, social or sporting activities.
154Mr Villalobos has not had any treatment other than massage by a physiotherapist for his low back.
155Dr Graeme Doig, specialist in general orthopaedics and trauma, expressed the view in 2018 that Mr Villalobos has recovered from his neck injury as a result of the first transport accident, essentially on the basis of there being no medical evidence available that support ongoing neck problems between December 2003 up until the second accident in 2013.[99] Dr Doig had initially made findings based on examination in 2017 of a 5 per cent whole person impairment of the neck, with a guarded prognosis, and opined that Mr Villalobos will suffer from ongoing chronic neck pain.
[99] JCB 603
156With minimal current back pain, the residual consequences to Mr Villalobos of cervicogenic headaches and neck pain, even if established on the state of conflicting medical evidence, is not sufficient to discharge his burden. I find that the consequences of pain and ongoing headaches, which he manages with over-the-counter medication, are not more than significant or marked.
Gastro-intestinal injury
157Dr Paul Desmond, gastroenterologist, reported on 28 March 2006 that:
“In summary Mr Villalobos received chest, neck and back injuries in a motorcar accident in 2003. Since that time he has had recurrent musculoskeletal pains requiring analgesics. As a consequence of his analgesics he has developed upper abdominal pain, which is almost certainly a gastrointestinal motility disorder related to his narcotic analgesics.”[100]
[100]JCB 576
158Dr Campbell’s report of 21 November 2018 confirms a diagnosis of gastro-oesophageal reflux disease on 3 March 2005. I accept the plaintiff’s evidence that this reflux continues to the present day. Apart from discomfort in the mornings until he has taken some liquid and food, no other consequences are identified by Mr Villalobos, and I find that this does not satisfy the narrative test.
159Again, whilst Mr Villalobos reports gastrointestinal pain as a consequence of taking the array of medication in the past, he is currently on a milder regime and it does not appear that this pain affects his life beyond discomfort in the morning, which is alleviated by taking fluid and food. Whilst significant, I find it is not more than significant, and not sufficient to discharge his onus of establishing serious injury.
Left lower limb
160Mr Villalobos’ evidence was largely uncontested in relation to the physical consequences of the injury to his left lower limb sustained in the second transport accident. I find that:
(a) prior to the second transport accident in 2013, Mr Villalobos used to skateboard, snowboard and play indoor soccer, but is now no longer able to engage in any of those activities due to his left lower limb impairment. He used to enjoy snowboarding every winter at Mt Buller and Falls Creek Resorts. He used to enjoy skateboarding. I regard these as very significant consequences. During cross-examination, his evidence included:
Q:“Have you tried to get on a skateboard?---
A:I can’t skate. I can’t skate, I’ve got broken toes. I kick with my left foot, I can’t snowboard, I can’t play football, soccer.[101]
Q:The question is, if it wasn’t for the toes and your injuries, you would still be playing soccer now?---
A:I’d be skateboarding, I would be snowboarding every winter and I’d be playing indoor soccer. I’ve got friends - I’ve got friends that play soccer now. They play every Sunday, soccer, outdoor soccer. They are all South Americans, they get together every weekend and they play soccer every weekend.
Q:Do they have a barbecue socialise in that way as well?---
A:I don’t know because I don’t see them. I haven’t been to see them. I just know my friends, they get together every weekend and they hang out and that’s what they do. I don’t go there. What am I going to go there for? I’ve got nothing.
Q:You don’t go there?---
A:No, I don’t go there.”[102]
[101] T210
[102] T211
(b) his fourteen-year-old son plays soccer, but Mr Villalobos is unable to join him for a kick and finds this a great disappointment;
(c) his left knee has a lump in it and the function of both the knee and the left lower limb generally are considerably restricted. He suffers constant but variable levels of pain, and his walking and ability to stand beyond a short period of time is limited;
(d) his sleep has been affected by pain;
(e) he suffered ongoing pain and disability from performing his work at Hilton Manufacturing, and found that by the end of the day, he was in a considerable degree of pain and had to raise his left leg to rest it by the end of the day;
(f) currently there is no work available that he can perform;
(g) he trained to work as a light fitter and undertake heating and cooling work, all of which requires extensive ladder usage. By reason of his left lower limb condition, he would have difficulty using a ladder, so this avenue of work is closed to him.
161I find that Mr Villalobos’ injury to the left limb sustained in the second transport accident satisfies the narrative test, and I propose to grant him leave to commence proceedings for common law damages in relation to that injury.
Psychological injury
162Mr Villalobos also makes a claim for a severe psychiatric condition. His claim under paragraph (c) is expressed in these terms:
“severe long-term mental or severe long-term behavioural disturbance or disorder and in particular PTSD, anxiety and depression with medication related seizure activity resulting in a further but consequential and related transport accident.”[103]
[103] Particulars of Injury dated 22 May 2019, JCB 539
163It is not in dispute that the plaintiff was diagnosed with, and was suffering from, a Post-Traumatic Stress Disorder condition and a depressive condition following the first transport accident.
164Although initially diagnosed with Post-Traumatic Stress Disorder, this appears to be in remission.[104] He has been prescribed a variety of anti-depressant medications over the years to treat his psychiatric symptoms, which include suicidal ideation, with limited effect:
“My psychiatric condition has not really responded to the anti-depressant and other medications prescribed for it which is why I stopped using them. I do suffer depression on an ongoing basis and get very down. I suffer from suicidal thoughts. On one occasion, I did attempt suicide by gassing. I have already received psychiatric treatment and psychological treatment and as mentioned, I have now been referred for further psychological treatment. These treatments have only had very limited effect on my psychiatric condition.”[105]
[104]See reports of Associate Professor Doherty and Dr Papasava
[105] Affidavit of the plaintiff sworn 3 March 2017, paragraph [22], JCB 130
165Mr Villalobos had no treatment from a psychologist in relation to his psychological condition between late 2004, and when he commenced treatment from Ms Jennifer Jacobs, psychologist, in August 2010 in the context of the breakdown of his marriage. Ms Jacobs notes that he presented with Severe Depression due to this event.[106] Mr Villalobos did not attend his third session with Ms Jacobs, informing her that he was not ready to address his issues at that point in time.
[106]JCB 365
166Whilst Mr Villalobos relies upon his various psychiatric conditions over time, the progress notes indicate an absence of any attendance on doctors in the period of eighteen months to two years prior to his separation.
167In or about January 2014, Mr Villalobos was referred by Dr Campbell to consultant psychiatrist, Dr Robert Kruk.[107] Mr Villalobos ceased treatment under Dr Campbell in June 2014.
[107]See incomplete report at JCB 561
168Later in 2014, Mr Villalobos was referred to clinical psychologist, Mr Geoffrey Wood, who saw him on 15 December 2014. At the time of this attendance, he was severely depressed, with suicidal ideation without plan, as he “could not desert his children”.
169Notwithstanding a lack of consistent treatment, there are contemporaneous notes and reports from his general practitioner from time to time to the effect that he required ongoing counselling for his psychological condition, despite improvement.
(c) knew he had pain and a very significant psychiatric or psychological condition in 2006, and made a deliberate decision to abandon his claim; and
(d) delayed in issuing proceedings after receiving a letter of advice dated 15 January 2015 from Melbourne Injury Lawyers to the effect that the relevant limitation period had expired on 23 December 2009.
192Further, that:
(a) the circumstances were “completely the opposite”[135] to a plaintiff who did not appreciate the extent of his injury at the time the limitation period expired; and
(b) the TAC would suffer specific prejudice in investigating the circumstances of the plaintiff if the limitation period was extended, because certain clinical notes could not be located.
[135] T278
193I now turn to consider the relevant matters set out in s23A of the LA Act.[136]
(a) The length of, and reasons for, the delay on the part of the plaintiff
[136] Subsections 23A(3)(c) and (d) are not relevant
194The TAC submitted that the period of delay should be calculated from the accrual of the cause of action, being 23 December 2003, to the making of the application for the extension of time, being 30 September 2020. In making this submission, the TAC relied on the 1996 Court of Appeal decision of Repco Corporation v Scardamaglia,[137] where the generally accepted rule was stated as follows:
“The preponderance of authority in this 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 … .”[138]
[137] [1996] 1 VR 7
[138]Ibid at 11
195The TAC therefore submits that the period of delay is sixteen years and nine months.[139]
[139] Defendant’s submissions dated 24 March 2022, paragraphs [6]-[7]
196In Sparkes v Hylemit Pty Ltd,[140] J Forrest J, accepting the general rule, made the following comment about calculating the period of delay in claims arising out of a transport accident:[141]
“The only rider I would add to this proposition is that the effect of the Transport Accident Act 1986 (Vic) needs to be considered. As I mentioned earlier, the existence of a serious injury within the meaning of that act is an essential precondition to prosecution of a common law claim arising out of a transport accident. That means that the end point, for the purpose of delay, is the lodging of the relevant documentation for the purpose of a serious injury determination with TAC. This, as is the case with a writ or summons, puts the defendant (and its insurer) on notice of the potential claim. In other words, the relevant delay, where leave under s 93 of that Act is required, is that between the date of accrual of the cause of action and the date of the making of the serious injury application.”
(emphasis added.)
[140] [2016] VSC 453
[141] Ibid at paragraph [31]
197I find that the period of delay is thirteen years and three months, being the period from 23 December 2003 to the lodging of the serious injury application with the TAC on 10 March 2017.
198Mr Villalobos cannot remember receiving a letter from Melbourne Injury Lawyers dated 12 November 2009[142] setting out advice that the limitation period was about to expire. In cross-examination, Mr Villalobos denied being aware of the limitation period at that time, and said that he was advised of it in the context of this proceeding:[143]
MR PINKSTONE [Counsel for the TAC]
Q:“’Please note your Common Law rights will expire on 22 December 2009.’ This is at p102. And you knew that, didn't you?---
A:No, I didn’t know.
Q:You knew that your – you had a six year limitation period?---
A:Like I've told you before, I don’t – I don’t – I didn't know about this six year.
…
A:I didn’t know about this statute of limitation until about, ah, maybe two or three years ago when they – they just told me you can look into the – in the courtroom and learn all about this stuff. Before me, I didn’t know anything about the – the timing and anything else that you’re telling me. I only learned this past couple of years maybe. Be more three years now.”
[142] JCB 109
[143] T115, L7-12, L16-22
199Mr Villalobos explained that his partner in 2009, Ms Arias, threw out all correspondence from Slater & Gordon out of concern for the toll that the legal proceedings were taking on his mental health. Ms Arias’ sworn evidence included that:
“Every time he got mail from Slater & Gordon’s, he would become very unhappy and depressed. He would have nightmares and couldn’t sleep. We tried saving our relationship for our kids.
…
To help him with his depression and to avoid fights, I decided to put every piece of mail from Slater & Gordons in the bin, as it was distracting him from work, his family, and our kids who were five and 2 at the time.
I thought that was best for him and our family as Daniel was very unwell and not coping with the extra stress that the mail from Slater and Gordan were putting onto him. We had a lot of bills to pay which also put me under a lot of stress.”[144]
(a) :Under cross-examination, Ms Arias maintained:[145]
Q:“Then you say that you put every piece of mail from Slater & Gordon in the bin?---
A:Yes, I did.
Q:Is that the truth?---
A:Well, I mean, I would read it - like, it got to the point where I would read it but I wouldn’t show him. I didn’t show him, so I just threw it in the bin.”
[144] Statutory declaration of Alejandra Arias made 28 January 2022
[145] T220, L8-13
200In cross-examination, Counsel for the defendant, Mr Pinkstone, suggested to the plaintiff that he and Ms Arias had fabricated this story. Mr Villalobos rejected this assertion:[146]
Q:“I suggest you and Ms Arias have recently fabricated this story about … [mail] being put in a bin?---
A:No, I didn’t.
Q:In an attempt to revive your claim?---
A:No.”
[146] T124, L11-13
201Mr Villalobos rejected the notion that he had deliberately abandoned the claim:[147]
Q:“But in that period of time you deliberately chose to do nothing about furthering your claim?---
A:Yep. I was busy working.
Q:Yes. So you’re agreeing with me then, are you?---
A:Nah, I don’t agree with you. Like - like - like, I - I thought everything was going okay.
…
A:And they stop sending me emails. That’s what I thought, everything just finish.”
[147] T123, L27 – T124, L5
202I find that:
(a) from around 2008, Ms Arias,[148] withheld mail from Slater & Gordon from Mr Villalobos;
(b) he did not receive the letter from Slater & Gordon dated 12 November 2009; and
(c) he was not aware of the limitation date before he consulted Melbourne Injury Lawyers in November 2014.
[148] Ms Arias and the plaintiff separated in 2010: Affidavit of Alejandra Arias sworn 7 August 2019, JCB154
203In his affidavit[149] and oral evidence, Mr Villalobos offered a range of reasons for the delay, including:
(a)his depression and anxiety;
(b)parenting two young sons;
(c)pre-occupation with work and study for his electrical apprenticeship from 2007 to 2009;
(d)dealing with the breakdown of his marriage from 2010;
(e)addiction to prescription medication from 2011.
[149] JCB 144, paragraph [33]; 147, paragraph [11]; T61, L9-10
204I accept the TAC’s submissions that a pre-occupation with work and parenting do not constitute a sufficient reason for delay; however, I reject its characterisation of very significant mental health issues as at 2006,[150] the breakdown of his marriage in 2010/2011 or addiction to prescription medication in the lead up to the second transport accident as “usual life events” which may not be taken into account.
[150]See the reports of Dr Michael Papasava dated 20 August 2004 (JCB 167) and 20 June 2005 (JCB 170); Dr Strauss dated 4 April 2006 (JCB 172) and 30 May 2006 (JCB 182) and Associate Professor Doherty dated 8 April 2018 (JCB 222)
205Whilst not disabled within the meaning of s23A(3)(d), those matters provide some context by way of explanation as to why Mr Villalobos did not engage with his solicitors from 2007, and delayed seeking further advice until after the second transport accident.
206The second transport accident itself, and its consequences, provide a further explanation for the delay. Until Mr Villalobos suffered the injury to his left lower limb, and a further psychiatric injury, in October 2013 the consequences to him of the first transport accident were probably not serious enough to warrant him pursuing his claim.[151] Self-evidently, this change of circumstance did not occur until after the expiration of the limitation period in December 2009.
[151] See discussion in Transport Accident Commission v Murdoch [2020] VSCA 98, paragraphs [95]-[102]
207By 2009, even though he still had accident-related pain, with depression and anxiety, he was working full-time,[152] had started a family,[153] was paying off his own home, and was getting on with his life as best he could. I am satisfied that it was not until after the second transport accident that the consequences of the plaintiff’s injuries in the first transport accident became very considerable. I infer that this was one of the reasons Mr Villalobos did not issue proceedings within the limitation period.
(b) The extent to which, having regard to the delay, there is likely to be prejudice to the defendant
[152]Mr Villalobos’ gross income from personal exertion in 2009 was, and remains, the highest income he has ever achieved: JCB 438 – financial summary for period 2000 to 2019
[153] His two boys were born in 2004 and 2008 respectively
208In accordance with Brisbane South Regional Health Authority v Taylor,[154] it is prima facie prejudicial to a defendant to allow the commencement of the action outside the limitation period. In the present case, involving a period of delay of thirteen years, such prejudice is likely to exist.
[154](supra) (per McHugh J)
209The first transport accident involved clear negligence on the part of the other driver, Benjamin Plummer, whose vehicle struck Mr Villalobos’ vehicle head-on, having crossed onto the wrong side of the road. The TAC has been on notice of the first transport accident since January 2004 and do not dispute the circumstances of the accident. It is supported by police statements taken at the time, including from an independent witness, Mr David Hankin,[155] and findings within a police collision report.[156]
[155] JCB 58
[156] JCB 63
210Accepting, of course, that memories fade over time, I am satisfied that the defendant may be afforded a fair trial on liability issues in terms of the circumstances of the first transport accident.
211It was not suggested that there were any medical records created since the first transport accident that had not been made available to the TAC in its investigation of the history and onset of presentation of symptoms.
212While the cause of the second transport accident is no doubt a “hot issue”, Mr Villalobos’ case is that he does not recall its circumstances as he had a seizure. Contemporaneous records exist as to the fact of the accident, and its immediate aftermath. On this factual contest, the parties are in a similar position then as now, and of course the plaintiff bears the burden of proof.
213There is no evidence that any witness is not available.
214Whilst the TAC’s written submissions are silent on the issue of specific prejudice, in oral submissions, its counsel, Mr Pinkstone, posited that there are “real and acute” areas of specific prejudice suffered by the defendant. Ms Attard, solicitor for the defendant, deposed that of the six medical practices the plaintiff had attended on prior to the first transport accident, five have no records pertaining to him. The sixth, psychologist, Mr John A Barry, had not responded to the TAC’s correspondence.[157]
[157] Affidavit of Natalie Attard dated 31 January 2023
215It was submitted that the absence of these medical records has hampered the TAC’s ability to defend the claim in the following ways:[158]
(a) the TAC is unable to test the plaintiff’s evidence that he used heroin as a painkiller after the second transport accident;
(b) the TAC is unable to ascertain what prescription medication the plaintiff was on at the time of the second transport accident, meaning that the causative impact of prescription medication on the second transport accident cannot be tested;
(c) the missing clinical records have also led to a lacuna of evidence as to whether a seizure was causative of the second transport accident.
[158] See T278-281
216There is no evidence that the plaintiff used heroin prior to the second transport accident, and it is not in dispute that he dabbled in it afterwards. Nor is it in dispute that the plaintiff was being prescribed various medications after the first transport accident as all of the medical records for this period have been produced. The absence of these medical records appears to be irrelevant, and does not establish specific prejudice in relation to the matters raised by the TAC.
(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 the advice he or she may have received
217On 8 January 2004, Mr Villalobos lodged a claim for compensation for injuries related to the first transport accident, including bruising, chest pain, neck pain and right ankle pain.[159] On 15 January 2004, the TAC accepted Mr Villalobos’ claim.[160]
[159] JCB 19
[160] JCB 41
218Mr Villalobos first attended on Slater & Gordon in 2004. He can recall having a meeting at the Slater & Gordon offices, but does not remember who he spoke to or what they said.[161] No file note of these initial meetings, cost disclosure or retainer is in evidence. There is no evidence that Mr Villalobos was informed of the limitation period attaching to his common law claim at this time.
[161] T46, L9-20
219Throughout 2005 and 2006, Mr Villalobos attended on medical appointments organised by both Slater & Gordon and the TAC.[162]
[162]See for example the report of Dr Brendan Hayman dated 4 August 2005 at JCB 207; report of Dr Nigel Strauss dated 4 April 2006 at JCB 172
220Throughout 2007, the TAC and Slater & Gordon were corresponding in an attempt to organise an impairment assessment for the plaintiff. In August 2007, Mr Villalobos failed to attend a scheduled medical appointment.[163]
[163] JCB 76
221On 7 March 2008, Slater & Gordon advised the TAC that they were unable to obtain instructions from Mr Villalobos.[164]
[164] JCB 79
222On 9 September 2008[165] and 27 April 2009,[166] Slater & Gordon advised the TAC that they still were not in contact with him.
[165]JCB 82
[166]JCB 85
223On 12 November 2009, about one month prior to the expiration of the limitation period, Slater & Gordon sent a letter to the plaintiff’s home address which stated that they were ceasing to act on his behalf. The letter contained the following advice regarding the limitation period:[167]
“Please note that for transport accident injuries that occur in the State of Victoria, you must bring the claim within 6 years from the date of the injury occurring, after which time your rights expire. In exceptional circumstances it may be possible to seek an extension of time from the TAC. Please note that your Common Law Rights will expire on 22 December 2009. I urge you to seek alternative legal advice in this regard. Further delay is likely to prejudice any potential Common Law entitlements you have which arise from the accident.”
[emphasis in original]
[167] JCB 112
224On 27 November 2014, Mr Villalobos first met with Melbourne Injury Lawyers:[168]
MR PINKSTONE:
Q“I asked you in what circumstances you first met with Melbourne Injury Lawyers?---
A:Yeah, they contacted me.
…
A:No, I didn’t contact them at all, they contacted me and they were the ones who found me and they were the ones that pushed me to it. I wasn’t in a great mental state. They call me, ‘Do this, do that’ and then told me to do all these interviews, go see all these doctors, and then - yeah.”
[168] T24, L5-12
225On 15 January 2015, Melbourne Injury Lawyers wrote to Mr Villalobos confirming his instructions. They advised:[169]
“As Grace discussed with you, the law requires common law proceedings for transport accidents to be commenced within 6 years of the date of injury (other than in exceptional circumstances). Accordingly your limitation period in which to bring a common law claim expired on 23 December 2009.
You however had retained Slater & Gordon to act on your behalf before this time. In order to investigate whether any further action can be taken in respect of your potential common law claim we would like to review the contents of the Slater & Gordon file. On doing this we will contact you to arrange a review appointment to discuss this issue further.”
[emphasis in original]
[169] JCB 114-115
226On 4 March 2015, Melbourne Injury Lawyers advised the TAC that they were acting on behalf of Mr Villalobos,[170] and by April 2015 the TAC had provided a copy of all documents held by it in relation to the plaintiff’s two transport accidents.
[170] JCB 87
227On 10 March 2017, Melbourne Injury Lawyers lodged Mr Villalobos’ serious injury application with the TAC.
228On 24 May 2017, the TAC denied Mr Villalobos’ request for a serious injury certificate and notified him that they considered his claim to be statute barred.[171]
[171] JCB 99
229Mr Villalobos lodged this Originating Motion on 6 June 2017.
Disposition
230The prejudice to Mr Villalobos in not being able to pursue his claim is very significant, but in order to decide whether it is just and reasonable to extend the period within which an action may be brought I must have regard to all of the circumstances of the case.
231The period of delay is considerable, and on one view inordinate, which is a powerful factor against extending time. Inordinate delay, however, is not of itself a reason to refuse the application and should be seen in light of the other circumstances of the case, including the fact that Mr Villalobos was involved in a further transport accident in October 2013, the consequences of which I find to have been “serious” within the meaning of the Act.
232Whilst he first retained solicitors in 2004, absent knowledge of the limitation period within which to commence proceedings, Mr Villalobos’ particular circumstances referred to above support his submission that it was reasonable to wait until after the second transport accident to commence proceedings. It was not until Mr Villalobos consulted Melbourne Injury Lawyers in 2014 that he was first aware he might have a cause of action against the defendant in relation to injuries sustained in the second transport accident. Thereafter, he appears to have done all things asked of him promptly and reasonably: there is no suggestion of any delay on his part.
233I do not accept that Mr Villalobos made a deliberate decision not to pursue his claim in 2009 and thereby lose his right to recover common law damages against the defendant. I accept his evidence that he does not recall ever seeing the letter from Melbourne Injury Lawyers dated 12 November 2009, and the evidence of his partner at time, Ms Arias, that letters from his solicitors were not provided to Mr Villalobos from 2008. I also accept that Mr Villalobos was not aware, at the time, that his partner was withholding his mail from Slater & Gordon.
234I accept the TAC’s submission that Mr Villalobos could have done more to engage with his solicitors, Slater & Gordon, from 2007.
235I find that Mr Villalobos was not aware of the expiry of the limitation period until late 2014 or early 2015, after he had been contacted by another firm of solicitors.
236On the evidence available to me in this proceeding, the delay on the part of Melbourne Injury Lawyers in not lodging a serious injury application until March 2017 – more than two years after taking instructions – was not reasonable, but is not determinative. In any event, any delay from when he consulted solicitors falls at the feet of his solicitors.
237While the Court must guard against allowing a claim to proceed out of time where a fair trial is not possible, the witnesses available and documents and other materials that do exist demonstrate that is not the case here.
238I accept that general prejudice exists due to the effluxion of time. That prejudice is one factor to be synthesised in the exercise of the discretion of the Court under s23A of the LA Act, in the circumstances of this case.
239I also accept that the TAC might be prejudiced by the absence of clinical records of medical practitioners Mr Villalobos attended on prior to the first transport accident insofar as they may have provided further evidence of the plaintiff’s medical condition and any treatment before the first transport accident. However, I do not accept that these missing clinical notes means that the defendant is unable to have an acceptably fair trial. I do not accept that their absence is productive of specific prejudice in respect of the TAC’s liability defence of the claim -– including the issue of the cause of the second accident which occurred in 2013. Some records from before the first transport accident have been produced; and nearly 700 pages of medical records from after the first transport accident were produced under subpoena are available, some of which were tendered into evidence.
240In circumstances where the plaintiff himself has acted reasonably since receiving advice as to the limitation period, relevant witnesses are available, relevant clinical records are available, and liability in relation to the first transport accident not being in issue, in my view, an acceptably fair trial is still available to the defendant. As Keogh J said in WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2),[172] the defendant is entitled to a fair trial, not a perfect one.
[172] VSC [2020] 639
241A synthesis requires a combination of circumstances, some of which might point in different directions, to arrive at a result. It is not a matter of weighing one against the other. It is not a matter of weighing a significant delay to the exclusion of other circumstances. Ultimately, I conclude that when all relevant circumstances and matters are synthesised, it would be just and reasonable to extend the period of limitation.
242For the reasons given, the application to extend the time within which Mr Villalobos may issue proceedings is granted. I shall hear from the parties as to consequential orders.
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