Walker v Transport Accident Commission - [2025] VSC 13

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST

S ECI 2023 04547

PETER DICKINSON WALKER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2024
DATE OF RULING:	31 January 2025
CASE MAY BE CITED AS:	Walker v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2025] VSC 13

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LIMITATION OF ACTIONS – Transport accident – Plaintiff’s cause of action statute barred – Application to extend time within which to commence proceeding – Substantial delay of over 17 years – No real explanation for delay – Delay inordinate – Prejudice suffered by defendant as a result of the delay – Application to extend time refused – Limitation of Actions Act 1958, s 23A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett KC Mr J Harris	Maurice Blackburn Lawyers
For the Defendant	Ms M Britbart KC Mr P Bourke	Solicitor to the Transport Accident Commission

HER HONOUR:

By summons filed on 14 June 2024, the plaintiff seeks an order to extend the period of time under s 23A of the Limitation of Actions Act 1958 (Vic) (‘LOA Act’) in which to bring an action for damages against the defendant for injuries he allegedly suffered in a transport accident that occurred in March 2006.

For the reasons set out below in this ruling, I will dismiss the plaintiff’s application to extend time.

The plaintiff’s transport accident

On 29 March 2006, about six months before his 18th birthday, a car driven by an unidentified driver hit the plaintiff from the rear as he rode his bicycle on Clyde Road, Berwick. The plaintiff suffered injuries, principally to his right elbow and wrist, and was taken to hospital.

Police and ambulance officers attended the accident scene. In contemporaneous ambulance case sheets, clinical notes following the plaintiff’s admission to hospital and police ‘Traffic Incident System’ notes, there is initially no reference to a car being involved in the accident.[1]
[1]Affidavit of Nick Tsongas sworn on 27 August 2024 (‘Tsongas affidavit’), [11], [13], [15].

On 5 April 2006, the plaintiff lodged a claim with the defendant for no-fault benefits in connection with the accident. In his application, the plaintiff described the accident as involving a car but identified the driver of the car as ‘not known’.[2] After receiving the plaintiff’s application, the defendant conducted an investigation into the circumstances of the accident.
[2]Tsongas affidavit, Exhibit NT1, 58.

On 1 May 2006, a Claims Officer employed by the defendant called Senior Constable Smith of Narre Warren Police station in relation to the accident. A file note of the call reads as follows:

I called SC Smith (who attended accident) to confirm accident circs. SC Smith
advised the police were originally called out to a collision between a car and
a bicycle. When they arrived at the scene the clnts girlfriend and his mum
were there. When details were given to the police by the clnt, his girlfriend,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v Transport Accident Commission

Details

AGLC: Walker v Transport Accident Commission [2025] VSC 13
Case: [2025] VSC 13
Decision Date: 31 January 2025

CaseChat Overview and Summary

The plaintiff, Walker, sought damages from the Transport Accident Commission for injuries sustained in a transport accident. The court was required to determine whether it should grant an extension of time under the Limitation of Actions Act 1958 for the plaintiff to commence proceedings, despite the cause of action being statute-barred. The central issue was whether the delay in bringing the action was inordinate and whether the plaintiff had provided a satisfactory explanation for the delay. Additionally, the court had to consider whether the delay had caused prejudice to the defendant, the Transport Accident Commission.

The court held that the plaintiff's delay in bringing the action was substantial and amounted to over 17 years. The plaintiff failed to provide a real explanation for the delay, and the court found the delay to be inordinate. Furthermore, the court concluded that the delay had caused prejudice to the defendant, which included the loss of evidence and the difficulty in defending the action due to the passage of time. Given these factors, the court refused to extend the time for the plaintiff to commence the proceeding. The court emphasised that the statutory provisions concerning the limitation of actions are designed to ensure that claims are brought within a reasonable time and that the delay in this case was excessive and unjustified.

The court's decision was based on the provisions of the Limitation of Actions Act 1958, particularly section 23A, which allows the court to extend the time for commencing an action if it is satisfied that the delay was excusable and that the delay has not caused substantial prejudice to the other party. The court found that the plaintiff had not met the criteria for an extension of time. Consequently, the plaintiff's application to extend the time within which to commence the proceeding was dismissed. The court's decision underscores the importance of bringing actions within the prescribed statutory periods and the consequences of failing to do so.

Orders