Yob v Hotel Angel Sea Pty Ltd
[2015] VCC 351
•27 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-12-05668
| RICKY YOB | Plaintiff |
| v | |
| HOTEL ANGEL SEA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 & 30 January 2015 | |
DATE OF JUDGMENT: | 27 March 2015 | |
CASE MAY BE CITED AS: | Yob v Hotel Angel Sea Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 351 | |
REASONS FOR JUDGMENT
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Subject: Plaintiff’s Application
Catchwords: Negligence – Personal Injury - Whether limitation period had expired – When cause of action discoverable under s 27F of Limitation of Actions Act 1958 – When fault known or ought to have been known – Whether CCTV footage determinative of fault - Solicitor acting on informant’s description of CCTV footage – Availability of CCTV footage – Delay - Whether limitation period should be extended under ss 27K, 27L.
Legislation Cited: Limitation of Actions Act 1958 (Vic), Wrongs Act1958 (Vic), Victims of Crime Assistance Act1996 (Vic), Corporations Act2001 (Cth), Freedom of InformationAct 1982 (Vic), County Court Civil Procedure Rules 2008 (Vic)
Cases Cited:Donmez v Neissa [2012] VSC 73; Spandideas v Vellar [2008] VSC 198; Vellar v Spandideas [2008] VSCA 139; Delai v Western District Health Service [2009] VSC 151; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Limited v Scardamaglia [1996] 1 VR 7; Itek Pty Ltd v Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Gordonv Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Dammanv Peninsula Health [2012] VSC 572
Judgment: Cause of action not barred, alternatively, extension of time
granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M.A. Hartley QC with Mr A. Pillay | Adviceline Injury Lawyers |
| For the Defendant | Mr M. Hooper | Lander & Rogers |
HER HONOUR:
Introduction
1 By Writ and Statement of Claim filed on 19 November 2012, the plaintiff seeks damages including aggravated and exemplary damages for personal injury suffered on or about 2 October 2005 whilst a patron at the Angelsea Hotel, the premises of the Hotel Angel Sea Pty Ltd, the defendant.
2 The plaintiff alleges he was assaulted at the premises by David Hood, a security guard/crowd controller employed by the defendant (the incident). Particulars of the circumstances under which injury was said to have been suffered are expressed in paragraph 5 of the Statement of Claim as follows:
“The Plaintiff had attended the premises at about 1930hrs. The Plaintiff and a friend were asked to leave the premises at around 2330 hours. As he was being escorted through the front entrance the Plaintiff was being restrained by one David Hood. David Hood put the Plaintiff in a headlock which caused the Plaintiff to lose consciousness. David Hood then let the plaintiff fall down the front steps of the premises whereupon the Plaintiff struck his head on the concrete at the bottom of the steps whereby he suffered serious injury.”
3 Injury was alleged as follows:
a) Traumatic head injury involving subdural haemorrhage, skull fracture, loss of consciousness; decreased concentration, headache, dizziness, sleep disturbance, left-sided hearing loss;
b) Facial lacerations;
c) Pain, shock and anxiety.
4 The plaintiff alleged negligence by the defendant as the owner and operator of the hotel in failing to provide training to the security guards, using inappropriate restraint, failing to have an appropriate security system in place and in using unreasonable force.
5 In a Defence filed on 27 March 2013 the defendant relevantly:
· admitted that, at the time, it was the occupier and licensee of and responsible for the care, control and management of the premises;
· denied that David Hood was employed or acting as its servant or agent. It was noted that the security guard in question was: ‘Darren Hood’ (the security guard) and had been employed by Combined Security Industries (CSI). The latter company apparently provided security services at the premises at the relevant time;
· denied the assault;
· admitted owing a statutory duty of care to the plaintiff pursuant to section 14B of the Wrongs Act 1958 but denied breach of this duty or negligence by the defendant its servants or agents;
· denied it was vicariously liable for the assault and/or in negligence and/or for breach of statutory duty;
· did not admit the plaintiff suffered the injury, loss and damage alleged and denied he was entitled to aggravated and exemplary damages;
· in the alternative, pleaded contributory negligence and alleged the plaintiff was precluded from recovering damages for non-economic loss as he had failed to satisfy the requirements of section 28LE of the Wrongs Act 1958. The latter provision restricts the right to recover damages for non-economic loss unless the plaintiff proves he has suffered significant injury;
· in the alternative, pleaded by way of confession and avoidance that the plaintiff’s claim was statute barred by operation of section 27D or section 5 (1AA) of the Limitation of Actions Act 1958 (the Act).
6 In a Reply filed on 7 August 2013, the plaintiff joined issue with the defendant asserting, firstly, that Part IIA of the Act, relating to the limitation period for personal injury actions, applied to the plaintiff’s cause of action and, secondly, that his cause of action was not discoverable within the meaning of section 27F(1)(b) of the Act until about 9 May 2012. Alternatively, if, as alleged by the defendant, his cause of action was barred, the plaintiff sought an extension of time pursuant to section 27K of the Act.
7 During the course of submissions the defendant conceded that section 5(1AA) of the Act did not apply to this hearing.
8 By consent, on 14 October 2014, the issue of whether the plaintiff’s claim was statute barred under the Act was fixed for hearing.
9 At hearing, the plaintiff sought a declaration that, in accordance with section 27F(1)(a) of the Act, the proceeding was not statute barred because the proceeding had been filed before the expiration of three years from the date on which the cause of action was discoverable by the plaintiff, the latter being on or about 9 May 2012. Alternatively, if the limitation period had expired, the plaintiff sought an extension under sections 27K and 27L of the Act.
10 Tender was as follows:
On behalf of the plaintiff –
1) affidavits sworn by a solicitor representing the plaintiff, Liat Blacher on 7 May 2014 and 28 January 2015;
2) affidavits sworn by the plaintiff on 14 May 2014 and 29 January 2015;
3) solicitor’s file note of 11 May 2012; and
4) a bundle of attachments to letter dated 8 February 2007 from Victoria Police Freedom of Information Officer, Lisa McMeeken. [1]
[1] Exhibits A1-A6 inclusive
On behalf of the defendant –
1) affidavits sworn by a solicitor representing the defendant, Gavin John Hollamby, on 12 November 2014 and 3 December 2014.[2]
[2] Exhibits R1-R2 inclusive
11 The material tendered included a copy of CCTV footage (the CCTV footage) of the incident. This was shown during the course of the hearing.
12 The plaintiff was not required for cross-examination. The hearing proceeded on the basis of the documents tendered and written and oral submissions only. By reason of the plea based on the Act, the defendant carried the legal burden of proof under section 27D(1), whereas the plaintiff was required to introduce evidence of what he knew or ought to have known in relation to the matters to which section 27F(1)(a)-(c) refer.[3] By agreement the defendant made its submissions first.
[3]Donmez v Neissa [2012] VSC 73 [32]-[33]
The Act
13 Part IIA of the Act applies to a cause of action for damages that relates to personal injury to a person regardless of whether the action for damages is founded in tort, in contract, under statute or otherwise. Section 27D contains the limitation period for personal injury actions and relevantly provides as follows:
27DLimitation period for personal injury actions—general
(1)An action in respect of a cause of action to which this Part applies shall
not be brought after the expiration of whichever of the following periods
is the first to expire—
(a)the period of 3 years from the date on which the cause of action is
discoverable by the plaintiff; …
14 Section 27F defines the term “discoverable” as follows:
27FDate cause of action is discoverable
(1)For the purposes of this Part, a cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts—
(a) the fact that the death or personal injury concerned has occurred;
(b)the fact that the death or personal injury was caused by the fault of the defendant;
(c)in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2)A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
(3)In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
15 Section 27K provides for extension of time and section 27L sets out the criteria for consideration by the court in exercising the powers conferred by section 27K. These sections are set out in due course.
16 The initial question for determination was whether, if the plaintiff’s head injury was caused or contributed to by negligence of the defendant, his cause of action was statute barred.
17 It was not disputed that, for the purposes of section 27F(1)(a), the plaintiff knew during October 2008 that he had suffered a head injury.
18 The plaintiff’s case was that, whilst he knew within three years of the incident that head injury had occurred and that the security guard had been investigated by police for potential criminal prosecution, until 9 May 2012, he had not been aware that the injury was caused or contributed to by the defendant’s fault in the sense required by section 27F(1)(b). This was the date on which his solicitors were permitted to view a copy of the CCTV footage obtained by police. Moreover, until assessment by a neuropsychologist on 5 January 2009, the plaintiff said he had not been aware that his head injury was sufficiently serious to justify bringing a cause of action in the sense required by section 27F(1)(c).
19 The key issue, according to the plaintiff was whether the fall was due to the effects of his consumption of alcohol or whether conduct of the security guard for which the defendant was responsible, had caused or contributed to the fall.
20 It was common ground that, for the purposes of section 27F(1)(b), the word fault bore its natural and ordinary meaning, namely an act or omission, to which some culpability or blame attaches. In Spandideas v Vellar[4] his Honour, Justice Kaye explained this in the following words:
The meaning of “fault” is plain and unambiguous, both in ordinary parlance, and in its context in Part 2A of the Act. Its usual everyday meaning connotes culpability or blameworthiness. In particular, where injury or damage is said to be the result of the “fault” of another person, ordinarily such an accusation would involve the attribution of a degree of culpability or blame on behalf of the person who caused the damage.
[4] See Kaye J in Spandideas v Vellar [2008] VSC 198, [32]. Leave to appeal this decision was later denied by the Court of Appeal in Vellar v Spandideas [2008] VSCA 139. See also Delai v Western District Health Service [2009] VSC 151, [15] and Donmez [26]
21 The plaintiff was not required to form a legal judgment as to the fault of the defendant in a tortious sense for, as Kaye J also observed in Spandideas, Parliament intended that the cause of action should only be known when a critical part of it was apparent to the plaintiff, namely an element of fault on behalf of the defendant:[5]
[5]Spandideas, [35] and [37]
… I consider that Parliament intended that the period of limitation is to commence when the plaintiff knew (or ought to have known), inter alia, of the fact that the death or personal injury, the subject of the claim was caused by an act of a person, which should not have been carried out, or which should have been done differently, or by an omission by another person to carry out an act, which should have been done. In such a case, should a plaintiff have formed such a view, it may not be necessary for the plaintiff to have expressly entertained any notion of “fault”; rather, what the subsection fixes on is the knowledge of the plaintiff (or the circumstance that the plaintiff should have known) that the death or injury resulted from an act which should not have been carried out, or which should have been carried out differently, or from a failure to carry out an act which should have been done.
…
… Whatever the juridical basis of a claim for damages for personal injury, ordinarily such a claim must involve some element of “fault”. It is understandable, in those circumstances, that the legislature would envisage that the cause of action should only be known, when a critical part of it is apparent to a plaintiff, namely an element of “fault” on behalf of the defendant.
22 Accordingly, the defendant was required to prove on the balance of probabilities that the plaintiff knew or ought to have known that head injury had been caused or contributed to by some culpability or blameworthiness of the defendant. This involved a normative assessment by the plaintiff as to whether the conduct in ejecting him from the hotel involved culpability or blameworthiness on the part of the defendant.
23 If fault was known, or ought to have been known, on or before 19 November 2009, under section 27F(1)(c), the defendant was also required to prove on the balance of probabilities that the plaintiff knew or ought to have known that the head injury was sufficiently serious to justify the bringing of an action on the cause of action on or before that date.
24 In assessing what the plaintiff ought to have known about fault and about the extent of his injuries for the purposes of section 27F(1)(b) and (c), I also made allowance for subjective factors such as the plaintiff’s age, personal characteristics, education and physical and mental state.[6]
[6] Ibid [64]-[67]
The incident alleged
25 Late in the evening, or shortly after midnight, on 1 October 2005 the hotel’s CCTV cameras captured images of the plaintiff being ejected from the premises by the security guard. His companion at the time was also ejected by another security guard.
26 Having viewed a copy of the CCTV footage at hearing, I was satisfied that it was open to a jury, if shown this footage, to find that the conduct of the security guard in removing the plaintiff from the premises had caused or contributed to the plaintiff’s fall to the bottom of a flight of steps, such that this conduct involved some degree of culpability or blame.
27 If, for instance, the footage helps establish that the plaintiff had been allowed to fall down the flight of steps, the question is whether this was a fact of which the plaintiff knew or ought to have known before 9 May 2012.
28 In his affidavit sworn on 14 May 2014, the plaintiff deposed he could not remember the incident in which he suffered severe head injuries. The steps taken by the plaintiff and his solicitors subsequent to injury were outlined in the affidavits filed and summarised in the paragraphs that follow.
Discoverability – three years from the date of the incident
29 On 20 October 2005 the plaintiff’s sister attended the offices of solicitors, Holding Redlich (now known as “Adviceline Injury Lawyers’’). She consulted solicitor, Mr Schaefer. Mr Schaefer, who is no longer employed by the firm, acted for the plaintiff. His current solicitor, Ms Blacher of Adviceline Injury Lawyers assumed the conduct of the proceeding on the plaintiff’s behalf from 20 December 2013.
30 The affidavit material tendered generally confirmed the record made of attendances on, instructions received and advice given by the plaintiff’s solicitors commencing from 20 October 2005. Copies of the file note records were attached to Ms Blacher’s further affidavit, together with a copy of memorandum of advice of Mr Champion of counsel.[7] Exhibit A5 contained an additional copy file note record dated 11 May 2012.
[7] Exhibit A3 LZB-16 to LZB-32
31 Mr Schaefer did not swear an affidavit in this proceeding. The defendant’s submission that an adverse inference should be drawn from the failure to call evidence from Mr Schaefer may have carried greater force, had it not been for tender of the file notes which recorded in some detail the steps taken and the advice given by Mr Schaefer and a number of other solicitors before 9 May 2012.
32 As mentioned, Holding Redlich was retained to act for the plaintiff on 20 October 2005. The plaintiff’s understanding of the meeting held between his sister, Nicole Edwards, and Mr Schaefer was that they discussed investigation of potential Victims of Crime and common law claims.[8]
[8] Exhibit A2
33 The file note dated 20 October 2005, among other things, recorded the following matters:[9]
[9] Exhibit A3 LZB-16
· Ms Edwards’ understanding of the circumstances which led to injury (“… both her brother and Ryan Stewart were been (sic) evicted from the hotel and security pushed Ricky and he fell backwards down some concrete steps in front of the hotel and struck his head”);
· Ms Edwards’ understanding that the plaintiff had suffered serious head injury including a brain injury from which he remained significantly disabled;
· the plaintiff reported no recollection of the circumstances of the incident, although Mr Stewart was a witness and the incident had been captured on surveillance video. According to Ms Edwards, this video had been erased, although a copy of the footage had been obtained by police from a computer hard drive;
· police had interviewed witnesses. It was not known if anyone would be prosecuted;
· Ms Edwards was advised of the three-year limitation period. This advice and the further advice that the plaintiff would need to undergo an impairment assessment for certification of serious injury, was repeated on numerous occasions at subsequent meetings;
· Mr Schaefer advised he would contact the investigating police officers and Mr Stewart to obtain “what information” he could.
34 It appears that before the next attendance on 22 June 2006, Mr Schaefer obtained a report from the Alfred Hospital dated 12 December 2005. This reported in the following terms:[10]
[10] Exhibit R1, GJH-1
· after the incident the plaintiff had been intubated at the Geelong Hospital;
· the plaintiff was transferred to the Alfred Hospital and admitted to ICU on 2 October 2005. He was suffering from a fracture of the base of the skull and a closed head injury. Apparently the plaintiff’s Glasgow Coma Score at the scene of the incident was 9/15 falling to 7/15;
· a CT scan of the brain had revealed right fronto-parietal subdural haematoma and contusions and a left temporal contusion;
· the plaintiff was treated by insertion of an intracranial pressure monitor and an extraventricular drain and commenced on antiseizure medication. He remained in ICU until 14 October 2005;
· the plaintiff was transferred to the general ward where his condition continued to improve and on 19 October 2005 he was discharged home;
· on 28 November 2005 the plaintiff was seen in the Neurosurgery Review Clinic. He apparently reported no complaints (no headaches, fits, blurring of vision or limb weakness and good memory). The plaintiff was discharged by the Clinic on the same day;
· at review in the ENT Clinic on 18 November 2005, the plaintiff complained of some left-sided hearing loss. Examination confirmed that the plaintiff had suffered sensoroneural hearing loss on the left side.
35 The next attendance on the solicitors on 22 February 2006 involved both the plaintiff and his sister. Among other things, the file note recorded the following matters:[11]
[11] Exhibit A3, LZB-17
· the plaintiff had been advised by his doctors that his condition would not stabilise for at least another 12 months, he had experienced episodes of epilepsy after ceasing antiepileptic medication, he had lost some hearing in his left ear and he complained of symptoms such as dizziness when standing too quickly or bending over and neck soreness;
· the plaintiff had returned to work in the demolition of houses and was coping physically;
· Mr Schaefer reiterated his earlier advice vis-a-vis the three-year limitation period;
· Mr Schaefer recommended neuropsychological assessment the following year to allow the plaintiff’s condition to stabilise. He indicated that, before their next meeting he would obtain a statement from Mr Stewart and obtain and review a copy of the police file containing the video footage.
36 By letter dated 4 May 2006 the plaintiff’s solicitors wrote to the Freedom of Information Officer for Victoria Police requesting copies of all documents and videotape footage held in connection with the incident.[12]
[12] Exhibit A1, LZB-1
37 Company extracts obtained from ASIC by the solicitors for the defendant on 19 June 2013, among other things, indicated that CSI, the company the defendant said had supplied security services and employed the security guard, ceased trading on 30 June 2006. On 15 November 2006, a court ordered the company be wound up and CSI was deregistered on 19 April 2013.[13]
[13] Exhibit R1, GJH-10 and GJH-11
38 Correspondence passing between the solicitors acting for the defendant and the appointed liquidator, Deloitte Touche Tohmatsu Limited in July and August 2013 establishes that, in August 2006, a director of the company completed a Questionnaire for Directors and Officers. As completed this document informed the liquidator, Deloittes, that CSI held no current insurance policies, the company had no books and records in its possession and the accountant’s file copies of books and records of the company had been destroyed by fire.[14] In August 2013 Deloittes directed the defendant to the Questionnaire and confirmed that, on reviewing the “minimal” company records recovered during liquidation and their own files, Deloittes had not found any evidence that CSI had any insurance policies.
[14] Exhibit R1, GJH-12 and GJH-13
39 In the circumstances described, it was unlikely the company was insured at the time of the incident.
40 There was a long delay between the FOI request and the written reply. Victoria Police apparently responded to the FOI request by letter dated 8 February 2007.[15] Only some of the documents held in the police brief were made available for release. Other than the plaintiff’s statement, the documents released were all redacted. This was justified under the Freedom of Information Act 1982 (the FOI Act) on a number of bases: the documents contained personal opinions of the investigating officers and the names and personal information of third parties not in the public domain; and, the release of the information could alienate members of the public and lessen cooperation with police in the future.[16]
[15] Exhibit A1, LZB-6
[16] See sections 25(b), 30(1)(a) & (b) and 33(1) & (9) of the FOI Act, the version as at 7 June 2007
41 Access to other brief materials was denied. These included documents relating to the prosecution brief, a taped interview with an unnamed third-party and the CCTV footage. The reasons advanced for denying any access to this material was that these documents affected personal privacy because they contained personal information about third parties, which had not entered the public domain and, further that, Victoria Police did not intend to authorise the brief for prosecution.[17]
[17] See s.33(1) of the FOI Act
42 Accordingly, access to the CCTV footage held by Victoria Police was denied. This position prevailed until the Victims of Crime Assistance Tribunal (VOCAT) called for the CCTV footage and permitted the plaintiff’s solicitors to view this footage in the course of a Directions Hearing on 9 May 2012.
43 In the meantime, Exhibit A6 comprised the bundle of copy documents released in response to the FOI request under cover of the letter dated 8 February 2007. The content of the documents released is summarised as follows:
· the ‘Statement of Examination For Police’ prepared by a medical practitioner who, in the early hours of 2 October 2005, examined the plaintiff in the Alfred Hospital’s Emergency Department. This statement explained that examination and CT scan of the brain had revealed a head injury involving both injury to the brain and a base of skull fracture;
· pages from the LEAP database – ‘Incident Report And Case Progress’ report dated 22 May 2006. This document records earlier events. It is apparent from the extracts set out below that the observation of the informant, Senior Constable Baeck, that the plaintiff had been pushed off the steps, was recorded when the plaintiff was still in a coma and before completion of the Victoria Police’s investigation –
Ø REMARKS: VICTIM ESCORTED FROM HOTEL BY SECURITY PUSHED OFF STEPS WHERE HE FELL BACKWARDS ON TO HIS HEAD. VICTIM IN COMA, HOSPITAL AS RESULT OF FALL. And
Ø VICTIM AND HIS ASSOCIATE [EXEMPT] WERE REMOVED FROM THE ANGLESEA HOTEL BY SECURITY. VICTIM YOB WAS PLACED IN A HEAD LOCK AND MOVED TO THE FRONT DOOR. HOTEL VIDEO SHOWS YOB FALLING FROM THE TOP OF A 3 STEP AREA BACKWARDS TO THE GROUND. HE HIT HIS HEAD FIRST AND BECAME UNCONSCIOUS. AT THIS POINT OF TIME HE IS STILL IN A COMA AT THE ALFRED HOSPITAL. IT APPEARS FROM THE VIDEO THAT THE VICTIM DID NOT WISH TO LEAVE THE HOTEL AND AT THE TOP OF THE STAIRS HAS RESISTED THE SECURITY MEMBER…
· the plaintiff’s unsigned and undated statement. In this, among other things, the plaintiff stated he had no memory of events occurring between having purchased a round of drinks at the bar and waking up in the Alfred Hospital;
· a further page from the LEAP database – ‘Intent To Summons Report’ dated 16 April 2006. This indicated an intent to proceed by summons to charge an unnamed male, interviewed on 11 October 2005, with a recklessly cause serious injury offence;
· a memorandum from the informant dated 15 April 2006. The subject of the memorandum was the security guard. The document contained a summary of the Brief of evidence, which was forwarded to the Officer in Charge of the Geelong CIU for further consideration or direction. It was, nonetheless, clear from this report that, based on the evidence to hand, the informant was not satisfied this matter could be successfully prosecuted. The document relevantly stated –
… The difference with the removal of Ricky YOB is that most witnesses do not indicate crowd controller [EXEMPT] had removed YOB in an improper manner. The video surveillance of the event is inconclusive. At the exit area YOB has fallen 2 steps landing on his head.… YOB’s memory of the incident is vague and took some 6 months before he would make a statement. YOB does not know how his injury was caused other than what he was told.
IN [EXEMPT] tape recorded interview he states that he asked YOB to leave due to his intoxication and annoying patrons. YOB walked with him towards the door leading into the entry hall. They stopped at the doorway whilst they waited for [EXEMPT] to escort [EXEMPT]. YOB grabbed hold of the door frame to stop being removed any further stating he was waiting for his friend. The door frame holding is corroborated by witness [EXEMPT]. AS [EXEMPT] pushed through the doorway with [EXEMPT] the action caused both [EXEMPT] and YOB to spin around. [EXEMPT] then attacked [EXEMPT] in the entry hall area. [EXEMPT] states that YOB tried to break away to hit the other guard so he place him in a head lock and moved through the exit/entry door. [EXEMPT] states YOB broke away from his grip as he [EXEMPT] was looking back to see what happened with [EXEMPT]. It was in this split second matter of a metre from the 2 steps to the pavement that YOB had stumbled backwards and fallen. As YOB fell [EXEMPT] has turned in time to try and grab YOB sensing the danger he was in. [EXEMPT] missed and YOB hit head first onto the pavement. The video surveillance tends to corroborate [EXEMPT] movement of attempting to grab YOB as he fell.
There were three witnesses in the vicinity of the incident. All three witnesses observed YOB being removed from the hotel by [EXEMPT]. They observed YOB fall to the ground but none of them observe what caused YOB to fall. Only one witness a taxi driver seated in his car by the name of [EXEMPT] heard [EXEMPT] say “Now get out of here” as YOB fell to the ground. The comment infers that [EXEMPT] has carried out some sort action to cause YOB to leave the area. If that is the case then by pushing or releasing an intoxicated youth into a dangerous area where YOB has fallen indicates [EXEMPT] has shown a reckless disregard for the safety of YOB. The resultant serious injury was caused by [EXEMPT] act of forcing him from the exit area.
Other than the above inference and [EXEMPT] version there is no independent evidence of what happened in that split second at the exit area. No one has said [EXEMPT] released YOB at the top of the steps where he it would be easy for YOB to fall backwards to the ground. No one has said that [EXEMPT] has pushed or thrown YOB towards the steps.
…
It is the informant’s believe that a successful prosecution for recklessly cause serious injury could not be obtained. There is a large question mark over that split second at the exit area without further evidence to refute [EXEMPT] version a Magistrates would have little to work with and dismiss the charge (sic).
· a memorandum dated 19 April 2006 from the informant to Detective Acting Senior Sergeant Baker. In this memorandum the informant expressed his reservations about not prosecuting, notwithstanding the absence of witnesses evidence to say whether the plaintiff was pushed or fell down the stairs. According to the informant, the video footage showed “a continual struggle between [EXEMPT] and the victim YOB”. His belief as to what the video footage showed was redacted. However, the informant sought authorisation to contact Audio Visual at a forensic services to see if they could improve the footage and “possibly shed further light on this investigation”.
· a handwritten note made by the informant dated 21 April 2006. This indicated that, even with technical assistance the informant had not been able to improve the CCTV footage of the incident;
· a further memorandum from the informant to Detective Acting Senior Sergeant Baker dated 24 April 2006. This shows that, having failed to obtain improved vision of the incident, the informant believed he had exhausted all avenues of enquiry. He concluded there was insufficient evidence to meet the burden of proof in a criminal prosecution.
44 The plaintiff’s counsel opened on the basis that the plaintiff’s solicitors had never received the 8 February 2007 response. In her affidavit Ms Blacher deposed the plaintiff’s solicitors had no record of having received the Victoria Police response to the FOI request.[18] The letter was said to have come to the solicitors’ attention following a further request for provision of the CCTV footage of the incident on 13 April 2010 and, after another solicitor from the same firm spoke by telephone to a FOI officer on 21 July 2010.[19]
[18] Exhibit A1
[19] Exhibit A1, LZB-5 and LZB-6
45 I have accepted, as claimed, that the further request for information in 2010 was made because the solicitors had been unable to find a response to the May 2006 request and that, currently, they have no record of having received a response. The material before the Court, nonetheless, shows that the plaintiff’s solicitors probably received the February 2007 response from Victoria Police before the plaintiff, his sister and Mr Schaefer conferred with counsel, Mr Ingram, on 28 March 2007 and certainly before, 15 August 2007 when Ms Blacher said the plaintiff’s Application for Assistance together with the “relevant” police report and “appropriate” medical records were lodged with the VOCAT.[20]
[20] Exhibit A1, paragraphs 7 and 8
46 As my summary of the content of the file note made on 28 March 2007 shows, this relevantly recorded discussion of Victoria Police material and recommendations made by counsel in the following terms:[21]
[21] Exhibit A3, LZB-18
· having reviewed the Victoria Police report, counsel recommended further investigation of the circumstances of the plaintiff’s injury for a legal claim;
· the fact that the video evidence had not been provided by Victoria Police had been discussed;
· counsel advised that the video footage would be discoverable in legal proceedings issued against the defendant;
· Mr Schaefer noted he would write to Victoria Police to request that they retain the video tapes;
· counsel recommended retaining Dr Zalewski, who could give expert evidence on hotel security and the appropriate method for removing drunk patrons from a hotel, when the brief was complete;
· counsel recommended the ambulance records be obtained, which Mr Schaefer thought would form part of the Geelong Hospital records;
· the plaintiff’s sister reported her belief that ambulance officers were told by hotel representatives that her brother fell from a balcony in the residential area of the hotel;
· it was agreed further investigation was required;
· counsel’s view was that the plaintiff should meet the impairment threshold and – “ should be able to establish a sufficient basis for a Writ to be issued..”. The observation made about the impairment threshold evidently referenced the thresholds in relation to recovery of damages for non-economic loss under Part VBA of the Wrongs Act and the likely extent of the plaintiff’s injury.
47 In the context in which it was made, I did not consider the advice from counsel that the CCTV footage would be discoverable in legal proceedings, amounted to advice that, for instance, the plaintiff make application against the defendant under the County Court Civil Procedure Rules applicable at the time to inspect the CCTV footage or file a generally endorsed Writ with a view to obtaining discovery from the defendant. On the contrary, the indication that Mr Schaefer would ask Victoria Police to retain the footage for use in future legal proceedings and pursue other evidence for counsel’s brief suggests that they were acting on the only evidence available, that is the material already obtained from Victoria Police and on the informant’s description of the conduct depicted on the footage, not the informant’s assessment of whether this evidence as a whole could support a successful criminal prosecution. I will discuss the question of whether the plaintiff took all reasonable steps to ascertain any fact or facts relevant to fault separately.
48 On 14 August 2007 the plaintiff and his sister again met with Mr Schaefer. [22] The focus of this meeting was on completing and filing the application with VOCAT within the two year time limit under the Victims of Crime Assistance Act 1996 (the VCA Act).[23] However, there appears to have been some limited discussion about the potential common law claim with instructions for Mr Schaefer to proceed to arrange a further conference with counsel to “get the civil claim under way”.
[22] Exhibit A3, LZB-19
[23] Section 29
49 The material produced to the Court by the defendant shows that a copy of the informant’s memorandum dated 15 April 2006 was probably attached to the VOCAT application dated 14 August 2007.[24]
[24] Exhibit R2, GJH-24
50 The VCA Act establishes a scheme under which financial assistance is provided to victims of crime who have been injured by an act or acts of violence.[25] The assistance available is capped and involves payment of expenses such as medical expenses and loss of income, although the VOCAT may award special financial assistance to victims who experience or suffer any significant adverse effect as a direct result of an act of criminal violence.[26] The amount awarded is, however, reduced by any damages recovered at common law and any compensation, assistance or other payments for the loss or expenses sought.[27]
[25] Section 1
[26] Sections 8 and 8A
[27] Section 16
51 In so far as it applied to this plaintiff, the act of violence referenced a criminal act (that is an act or omission constituting a relevant offence) that had occurred in Victoria and directly resulted in injury to the plaintiff.[28]
[28] Sections 3 and 7
52 The standard of proof applied to any question of fact to be decided by the VOCAT is on the balance of probabilities.[29] Whilst, the civil standard of proof also applies to the plaintiff’s common law claim as pleaded, in assessing this matter, it is important to bear in mind that the matters to be proved in any potential common law proceeding are entirely different. The plaintiff, who has no memory of the incident and no witness evidence of what caused the fall is required to prove some act or omission amounting to breach of statutory duty and/or negligence on behalf of the defendant.
[29] Section 31
53 Notably, the VOCAT is invested with wide powers, among other things, to investigate and obtain information.[30]
[30] Sections 39 and 40
54 File notes made for meetings between the plaintiff and Mr Schaefer on 17 January and 24 January 2008 show that time was spent on advancing the VOCAT application for injury and loss of income. Relevantly, on 17 January 2008 there was discussion of a report from the Alfred Hospital’s Department of Neurosurgery dated 22 May 2006 in which it was said the plaintiff’s symptoms were minimal and a CT scan of the brain had shown that any haematoma had resolved well and was normal. On that occasion, the plaintiff advised he had not sought further medical treatment because his symptoms had not worsened.
55 The plaintiff did, however, accept that he might benefit from an assessment by a psychiatrist. Mr Schaefer recommended Professor Lorraine Dennerstein.
56 On 24 January 2008 there was further discussion of the proofs required to establish the plaintiff’s loss of income claim. The solicitor indicated he would obtain an extension of the time from the VOCAT in which to file a report from Professor Dennerstein.[31] Relevantly, the solicitor again reminded the plaintiff of the three-year limitation period and the need for the plaintiff to meet the impairment threshold by proving a whole person impairment rating of greater than 5%. I infer from this discussion, the advice given and the discussion of Professor Dennerstein’s impending report, that, at that stage, assessment of impairment both physical and psychological was still outstanding.
[31] Exhibit A3, LZB 20
57 Whilst it was not clear from the record made that this advice was also conveyed to the plaintiff, the file note recorded Mr Schaefer’s belief that the plaintiff had an arguable case in negligence against the hotel. In view of the ongoing investigation which also required assessment of the plaintiff’s physical and psychological impairment ratings and the events which later transpired, if given, this advice was at best preliminary.
58 It appears that when assessed by Professor Dennerstein on 25 March 2008, the plaintiff continued to indicate a good physical and mental recovery. He apparently, reported the following matters:[32]
[32] Exhibit R1, GJH-2
· insomnia had settled within months;
· his emotional state (tearfulness and his mood) had improved after the first year, although the plaintiff continued to be concerned about hitting his head, he felt fragile and his heart raced when upset;
· he continue to suffer from headaches in the temporal region. These occurred once a week, lasted for about one hour but were relieved by Panadol;
· his speech had improved within a few months of discharge from hospital;
· there had been no further fits since discharge and medication had ceased after six months.
59 Professor Dennerstein diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood which she believed had slowly resolved. Professor Dennerstein found no evidence of psychiatric disorder.
60 On 8 April 2008, the plaintiff met with another solicitor, Mr Donovan. According to the file note record they discussed both claims.[33] As to the VOCAT claim, they discussed the need to establish, on the balance of probabilities, the plaintiff’s version of the incident and an act of violence linked to his injury by obtaining evidence from a witness who could recall the incident.
[33] Exhibit A3, LZB-22
61 In a further indication that the plaintiff’s solicitors probably had by then received the material released by Victoria Police in response to the FOI request, the plaintiff was informed that police believed the video evidence was not conclusive and that the solicitors would: “follow-up and try and view the video and also contact the police about the taxi driver who may have seen the incident”.
62 As to the discussion of a possible common law claim, the plaintiff was advised he would need to prove negligence and a significant injury, that is a more than 10% psychological impairment or a more than 5% physical impairment. The plaintiff was further advised that the investigation they were pursuing for the VOCAT claim would assist the plaintiff in proving the potential common law claim. There followed discussion of the plaintiff’s symptoms and treatment and his employment circumstances. The plaintiff was again reminded that his claim would be statute barred within three years of the date of the incident.
63 On 12 June 2008 another solicitor, Mr Hansen, attended the VOCAT. According to Ms Blacher, he inspected the Victoria Police Brief, which had not contained the CCTV footage.[34] If, as contended by the defendant, this attendance probably involved inspection of the full Victoria Police Brief, based on Mr Hansen’s report, inspection of this material had not revealed evidence of culpability or blameworthiness on the defendant’s behalf.
[34] Exhibit A1, paragraph 9
64 The June 2008 file note and the earlier record of attendance on 8 April 2008, among other things, show that the plaintiff’s solicitors continued to pursue evidence of the circumstances in which the plaintiff sustained injury to support the VOCAT claim for financial assistance and with the secondary purpose of revealing any circumstance that would show that the fall and the injury had resulted from an act of the security guard/hotel which should not have been carried out or which should have been carried out differently or from a failure to carry out an act which should have been done.
65 The plaintiff missed an appointment made for assessment by neuropsychologist, Ms Sloan on 23 September 2008. He told his solicitors he had not received the letter advising him of this.
66 Among other things, the file note record for the next meeting with Mr Schaefer on 24 September 2008 indicated the following matters:[35]
[35] Exhibit A3, LZB-23
· the plaintiff’s belief at the time that he had made a good recovery and: “did not appear to have any deficits as a result of the brain injury”;
· the plaintiff was encouraged to undergo the assessment with Ms Sloan to advance both claims;
· the plaintiff was advised that the Writ for the common law claim needed to be filed by 1 October 2008;
· it was confirmed that, having reviewed the Police Brief on 12 June 2008, Mr Hansen understood no witness: “could say exactly what caused the fall” and, in what was clearly a reference to the informant’s assessment of the CCTV footage, the CCTV footage evidence was inconclusive on whether the security guard had pushed or attempted to grab the plaintiff before he fell;
· Mr Schaefer’s opinion that the evidence was weighted 2/3 to 1/3 against a judgment in favour of the plaintiff. He believed that, on the available evidence, the plaintiff would not succeed;
· the plaintiff was invited to think about filing a Writ prior to 1 October 2008 and there followed discussion of the cost of filing and of daily hearing fees;
· after considering the advice given, the plaintiff instructed his solicitors not to proceed with the common law claim and expressed his own view that he would not meet the whole person impairment threshold;
· the plaintiff signed an authority confirming his instructions not to proceed with the common law claim but to proceed with the VOCAT claim;
· the plaintiff was advised another appointment would be arranged with Ms Sloan.
67 In his affidavit sworn on 14 May 2014, the plaintiff recalled this meeting and the advice that Mr Schaefer had not been able to obtain a copy of the CCTV footage. We know this to be accurate advice because Victoria Police had refused to release the footage and had not by then released it to the VOCAT. It was, however, the plaintiff’s understanding of the advice he recalled, that without this footage the chances of success were not good because it would be difficult to prove the security guard had used unreasonable force.[36] This was the context in which he instructed the solicitors not to proceed.
[36] Exhibit A2, paragraph 8
68 When considered alongside the contemporaneous file notes kept by the solicitors, there is some tension between the plaintiff’s reported understanding of the advice received and the file note record. The latter suggests that the advice given was not as recalled by the plaintiff, that the prospects of success were poor without the footage. Rather, the solicitors’ advice was that the available evidence did not support a successful common law claim.
69 In short, my understanding of the file record kept was that, based on the statements obtained and the informant’s account of the quality of the footage and the conduct depicted, the solicitors had concluded that neither the witness evidence nor the footage disclosed acts or omissions capable of sustaining a successful common law claim.
70 A number of factors support this interpretation of the evidence. Firstly, the file record does not reference advice that the plaintiff persist in seeking the CCTV footage with a view to pursuing a common law claim at a later date. Secondly, a filing without service of a generally endorsed Writ would have allowed at least a further 12 months within which to continue to seek the CCTV footage had this been considered critical to the decision not to proceed before 1 October 2008. Lastly, the urgency with which the solicitors acted in advising the plaintiff once they were permitted by the VOCAT to view the footage as part of his claim for financial assistance, is consistent with an earlier held belief that, as reported by the informant, the footage was inconclusive of the cause of the fall.
71 In formulating my view that the advice against pursuing a common law claim was not predicated on the view that having the footage was critical to establishing the plaintiff’s common law claim, I also allowed for the medical evidence of impaired cognitive functioning and for the likely impact of head injury on particularly the plaintiff’s memory. This medical evidence is summarised in due course.
Discoverability – early October 2008 to 9 May 2012
72 In the period between late September 2008 and May 2012, the solicitors for the plaintiff continued to pursue the VOCAT claim.
73 On 12 November 2008, the time for filing supporting evidence from Ms Sloan was extended to 15 January 2009.[37] Without summarising its content in detail, Ms Sloan’s report dated 5 January 2009 demonstrated that the plaintiff’s belief that he would not meet the impairment threshold because he had made a good recovery from his brain injury, was likely attributable to the plaintiff’s limited insight into the cognitive, behavioural and emotional changes caused by head injury Ms Sloan characterised as severe traumatic brain injury.[38]
[37] Exhibit A1, LZB-3
[38] Exhibit R1, GJH-3
74 In Ms Sloan’s opinion, the plaintiff had been left with a range of persisting neuropsychological impairments. These affected the plaintiff’s speed of mental efficiency, attention skills, memory and executive abilities, not to mention his low frustration tolerance and reduced regulation of behavioural responses.
75 As her report shows, Ms Sloan concluded that, whilst the plaintiff appeared to be functioning well in everyday life, his cognitive deficits were pervasive and impacted on his capacity to manage at work and at home and had had a detrimental effect on his personal relationships. Ms Sloan recommended occupational therapy assessment and neuropsychological support to assist the plaintiff with management of cognitive, behavioural and emotional issues.
76 Consistent with the submission made by his senior counsel I think it clear that, until he was assessed, the plaintiff had not recognised the nature of or the extent to which the injury suffered had impaired his cognitive functioning. Had a common law claim still been under consideration, the receipt of Ms Sloan’s report was probably the earliest point in time from which it could be said that the plaintiff knew or ought to have known the injury was sufficiently serious to justify the bringing of an action on the cause of action for the purpose of section 27F(1)(c).
77 On 22 July 2009 Mr Donovan attended a directions hearing at the VOCAT. According to Ms Blacher’s affidavit, the Magistrate had indicated beforehand that the plaintiff’s solicitors would have access to inspect the police brief. They believed, wrongly as it turned out, this would include the CCTV footage.[39] Among other things, the file note dated 22 July 2009 recorded the following matters:
[39] Exhibit A1, paragraph 12
· the application was to be fixed for a 2 day hearing;
· there was discussion of which of the witnesses would be required to give evidence;
· the Magistrate noted various matters. One was an inconsistency between the statements made by the owner of the hotel and the security guard. Another was the security guard’s explanation in his record of interview that the plaintiff had broken free from his grip and when he tried to, he had not been able to grab the plaintiff;
· the Magistrate commented that the CCTV footage was inconclusive. In circumstances where the CCTV footage was not obtained by the VOCAT until 2012, I have accepted as logical the plaintiff’s submission that the comment made by the Magistrate in June 2009 was probably informed by Victoria Police assessment of the CCTV footage;
· the Magistrate commented that it was clear that the plaintiff had suffered a serious injury and confirmed that the issue at hearing would be whether a criminal act had been committed on the balance of probabilities.
78 As a result of an exchange of correspondence between plaintiff’s solicitors and the VOCAT in August 2009 and March 2010,[40] on 9 April and 15 April 2010 Mr Schaefer obtained leave to inspect the Police Brief held by the VOCAT. It did not contain the CCTV footage. This appears to have prompted the further FOI request to Victoria Police on 13 April 2010 for access to the CCTV footage, made this time on the basis that criminal charges were not being pursued.[41]
[40] Exhibit A1, LZB-4
[41] Exhibit A1, LZB-5
79 On 15 July 2010, the plaintiff conferred with Mr Schaefer and another solicitor. Among other things, the file note dated 15 July 2010 revealed discussion of the VOCAT application and recorded the following matters:[42]
[42] Exhibit A3, LZB-25
· there was discussion with the plaintiff of the detailed notes made by Mr Schaefer when he reviewed statements in the police file;
· there was discussion of the distinction between the criminal and civil burdens of proof. The plaintiff was advised the civil standard of proof applied to the VOCAT application, that is he was required to establish that a criminal act had occurred on the balance of probabilities;
· it was confirmed that police had decided there was insufficient evidence to prove a charge of recklessly causing serious injury beyond reasonable doubt;
· there was discussion of whether the VOCAT should be asked to call Mr Stewart as a witness;
· it was confirmed that a barrister had been asked to advise on whether he would meet the standard of proof on the VOCAT application;
· Mr Schaefer informed the plaintiff of his assessment of the evidence. He was doubtful that the evidence was sufficient to establish on the balance of probabilities that the plaintiff was pushed rather than he fell;
· the plaintiff was advised that the solicitors were still attempting to obtain the CCTV footage, which the informant reported did not show what had occurred, even after it was reviewed frame-by-frame.
80 On 21 July 2010, the plaintiff’s solicitors telephoned Victoria Police Freedom of Information Department. By facsimile message sent on the same day Victoria Police forwarded a copy of the letter dated 8 February 2007. It appears that the plaintiff’s solicitors were again refused access to the footage and advised to pursue this through the VOCAT.[43]
[43] Exhibit A1, paragraphs 16 and 17, LZB-6
81 On 27 July 2010, Mr Champion of counsel verbally advised solicitor, Ms O’Connell that he believed the plaintiff did not have the necessary evidence to satisfy the VOCAT on the balance of probabilities, that he was a victim of crime.[44] This advice was followed up with a written memorandum of advice to the same effect.[45] Counsel’s advice was based on his instructions and the Victoria Police material but not the CCTV footage, which counsel noted police had reported was inconclusive. Counsel did, however, recommend that the plaintiff’s solicitors take whatever steps were necessary to view the CCTV footage for themselves to determine whether it was sufficiently clear to permit the VOCAT to draw a conclusion on the balance of probabilities that the security guard had pushed the plaintiff. In short, Mr Champion had recommended that the solicitors continue to look for possible evidence of a criminal act.
[44] Exhibit A3, LZB-26
[45] Exhibit A3, LZB-27
82 On 19 August 2010, the plaintiff conferred with Ms O’Connell and Mr Schaefer. Among other things, the file note kept recorded the following matters:[46]
· discussion of the ongoing issues of proof and the advice from counsel that the plaintiff was unlikely to succeed before the VOCAT;
· the plaintiff was advised to take counsel’s advice home. Should he proceed and be unsuccessful, the plaintiff was advised the solicitors would bear their own cost burden but the plaintiff would need to bear the costs of his counsel.
[46] Exhibit A3, LZB-28
83 On 22 October 2010, the plaintiff again conferred with Mr Schaefer at which time he advised the solicitor he had not been able to decide whether to proceed with the VOCAT application.[47] There was further discussion about the merits of the application. However, the meeting concluded on the basis that the solicitor would persist with the VOCAT application, evidently as a means of ensuring that the CCTV footage was viewed. In Mr Schaefer’s opinion evidence of the speed and force with which the plaintiff fell backwards could be sufficient to establish on the balance of probabilities that the plaintiff was pushed rather than fell. Clearly the advice given at that stage was directed to proof of a criminal act only and evidence of a belief that there was still a possibility the VOCAT claim would succeed if the CCTV footage helped establish a criminal act. The issue of negligence on the defendant’s behalf was not revisited until May 2012 because, until the footage was viewed in the context of the VOCAT claim, no additional facts had emerged to justify this.
[47] Exhibit A3, LZB-30
84 On 29 April 2011, Mr Schaefer wrote to enquire whether the VOCAT had or was intending to subpoena the CCTV footage. He advised that, despite having concluded their criminal investigation, Victoria Police continued to deny access to the CCTV footage, which Mr Schaefer considered necessary to the preparation of his client’s application.[48]
[48] Exhibit A1, LZB-7
85 The response from the VOCAT received on 19 May 2011, confirmed that the VOCAT had sought a copy of the CCTV footage from the police.[49]
[49] Exhibit A1, LZB-8
86 There was a long delay before the plaintiff’s solicitors were advised by telephone on 30 March 2012 that the CCTV footage would not be released to them as the VOCAT required this be shown at a Directions Hearing. The reasons for this are apparent from the file note made.
87 The Directions Hearing was listed for 9 May 2012 and attended by Mr Schaefer and Ms O’Connell. [50] The file note kept for 9 May 2012 recorded the following matters:[51]
[50] Exhibit A1, LZB-9
[51] Exhibit A3, LZB-31
· the CCTV footage had not been included in the VOCAT’s original brief and had been requested on 17 May 2011;
· the CCTV footage received by the VOCAT had been accompanied by a note from the informant that the hotel wanted the right to respond if the VOCAT considered the CCTV footage should be released. This request evidently prompted the Magistrate to fix the Directions Hearing at which the CCTV footage was shown;
· having seen the CCTV footage Mr Schaefer and Ms O’Connell concluded it demonstrated that: “the applicant was put in a headlock in the foyer of the Anglesey Hotel by a bouncer having been dragged from the main area of the Hotel. His friend was also dragged to the foyer by another bouncer who was kicking him continuously while he was on the ground.… Our client was put in a headlock and then dragged to the stairs. A further review of the outside of the stairs shows our client been launched down the stairs and falling to the ground”;
· the Magistrate said he had viewed the CCTV footage five times. He expressed the view that the plaintiff was probably already unconscious prior to being thrown down the stairs. The Magistrate said a criminal act had occurred and indicated there would be no need to proceed to a hearing before the VOCAT;
· after discussion about a potential common law claim, the solicitors were informed by the Magistrate that when the hotel originally released the CCTV footage to police they had expressed concerns about privacy and the possibility that the CCTV footage would end up on social media. He apparently recommended the solicitors subpoena the CCTV footage.
88 On 11 May 2012, Mr Schaefer met with the plaintiff.[52] The plaintiff was advised of the outcome of the Directions Hearing. It was recommended that the plaintiff revisit his potential common law action. This was discussed with the plaintiff along with the earlier advice about the requirement to satisfy the impairment threshold under Part VBA of the Wrongs Act. On this occasion, Mr Schaefer indicated some uncertainty about whether, under section 28C, the plaintiff’s claim was excluded from the operation of Part VB of the Wrongs Act because it involved damages for an assault.
[52] Exhibit A5
89 Leaving the Wrongs Act issue to one side for the moment, it appears that on 11 May 2012, Mr Schaefer was of the view that the date at which the plaintiff’s cause of action was discoverable and from which the limitation period had commenced to run, was 9 May 2012, the same day as the plaintiff was advised of the content of the CCTV footage.
90 There followed discussion of the need to obtain counsel’s advice. Counsel was briefed on 14 May 2012 to draw the Statement of Claim. After this became available on 16 August 2012, it was settled by senior counsel and was received by the solicitors on 16 November 2012.[53]
[53] Exhibit A3, paragraph 3
91 As we now know, on 19 November 2012 the Writ and a Statement of Claim drawn by counsel, naming the hotel as the defendant, was filed. Neither the security guard nor CSI were named as defendants.
92 I was told that the VOCAT application is currently adjourned sine die.
93 The plaintiff was assessed by neurologist, Professor Davis at the request of the defendant’s solicitors. His report is dated 29 November 2013.[54]
[54] Exhibit A4, RY1
94 During the course of this examination, the plaintiff apparently reported that difficulty with his memory was his biggest problem.
95 Professor Davis concluded that the plaintiff had made a good recovery from severe head injuries. His assessment of the plaintiff’s impairment levels, after taking into account the plaintiff’s description of his symptoms and the neuropsychological abnormalities found by both Ms Sloan and another neurologist, Dr Freilich, nonetheless shows that the plaintiff has probably suffered a significant injury for the purposes of Part VBA of the Wrongs Act.
Submissions on discoverability
96 The plaintiff has no recall of the incident. He was, as submitted, reliant on evidence from other sources to form any view about fault.
97 On 20 October 2005 the plaintiff’s sister instructed the solicitors to investigate potential common law and the VOCAT claims. Thereafter, the plaintiff left the investigation of the potential common law claim in the hands of his solicitors. Their investigations confirmed that police had compiled a brief of evidence and held a copy of the CCTV footage. Despite FOI requests made in 2006 and 2010, access by the solicitors to and inspection of the CCTV footage was denied by Victoria Police under the provisions of the FOI Act.
98 As I found the facts, the plaintiff’s solicitors probably only had access to the material Victoria Police said was released under cover of their letter dated 8 February 2007, in response to the first FOI request and in June 2008 solicitor, Mr Hansen, probably inspected the full Police Brief at the VOCAT but not the CCTV footage. The latter remained in Victoria Police possession until, at Mr Schaefer’s request, the VOCAT required its production.
99 The material released shows that, having investigated the incident, the informant reported to his superior that the footage and the available witness evidence was insufficient to sustain criminal prosecution of the security guard on a charge of recklessly causing serious injury.
100 Whilst the defendant challenged the assertion that viewing the CCTV footage was determinative of whether there was fault on the part of the defendant, it contended the CCTV footage was additional to the evidence already available from which knowledge of fault should be inferred.
101 The defendant submitted the plaintiff knew, or ought to have known by the taking of reasonable steps that:
a) personal injury had occurred no later than the date of his discharge from hospital on 19 October 2005
b) by no later than 8 February 2007, the date on which various parts of the Police Brief were obtained, the injury was caused by the fault of the defendant; and
c) by no later than his return to work on 25 January 2006, the injury was sufficiently serious to justify the bringing of an action.
102 Based on this submission, the latest date by which the cause of action was discoverable by the plaintiff was 8 February 2007 and the limitations period expired by no later than 8 February 2010.
103 As I found the facts, the defendant was correct in its submission that by at least 4 May 2006, solicitor, Mr Schaefer believed that the plaintiff had been assaulted,[55] by 8 February 2007 the solicitors had access to the redacted Police Brief materials and by June 2008 the full Police Brief had been inspected by Mr Hanson. The materials released and/or the Police Brief either referenced or gave a full account of witness statements, the record of interview of the security guard and the informant’s report. The material contained evidence of and made observations about the circumstances of the incident and the conduct of the security guard as depicted by the CCTV footage. Accordingly, the plaintiff’s solicitors were likely cognisant of the content of this material and of the informant’s opinion about the quality and content of the footage as and from the date of the inspection in June 2008.
[55] Transcript (TN) 26-27
104 Essentially, the defendant submitted that the material available to and inspected by the plaintiff’s solicitors proved on the balance of probabilities, knowledge of fault and provided a basis for pleading an assault prior to 1 October 2008.
105 Having considered the evidence and the authorities, I have accepted the force of the submissions made on the plaintiff’s behalf both as to knowledge that his injury was caused by the fault of the defendant and as to whether he took all reasonable steps to ascertain facts of which he said he was ignorant before his solicitors viewed the footage on 9 May 2012.
106 The facts disclosed by the criminal investigation had not revealed how the plaintiff came to fall down the flight of stairs. The informant’s report of the CCTV footage, the clarity of which had not been improved by police forensic experts, was that it was inconclusive of the issue of whether the plaintiff had been pushed or, whether, as the security guard claimed, he had tried to grab the plaintiff before he fell.
107 In short, I have accepted that for the purposes of section 27F(1)(b) of the Act and a claim in negligence, in this case mere belief that the defendant could have been responsible, knowledge that Victoria Police were pursuing a criminal investigation and knowledge of the material contained in the Police Brief and the informant’s assessment of the footage, did not equate with knowing that acts or omissions for which the defendant was responsible had caused or contributed to the fall and to the plaintiff’s injury.
108 I was not satisfied that, until he had actual knowledge of the matters the plaintiff alleged were captured by the footage (as particularised by the Statement of Claim, losing consciousness whilst restrained in a headlock and being allowed to fall down the stairs), the plaintiff knew relevant facts necessary to the formulation of a cause of action in negligence.
109 The plaintiff was not informed until 9 May 2012, after his solicitors had been permitted to view the CCTV footage that it could provide evidence for a trier of fact to find on the balance of probabilities a causal link between an act or omission for which the defendant was responsible and the injury suffered.
110 If, as I have found, the CCTV footage was determinative of fault, the defendant was also required to prove that the plaintiff had not taken all reasonable steps before the limitation period expired to ascertain the cause of his fall and injury or to ascertain his rights against the defendant. This analysis involves consideration of the plaintiff’s actual knowledge, capacity and circumstances. It also involves consideration of whether his solicitors undertook the task of investigating fault appropriately.
111 The issue was not whether the plaintiff had acted unreasonably in leaving the investigation in the hands of his solicitors or relying on his solicitors advice that on the available evidence, if filed, a common law claim was unlikely to succeed. Nor could it be said that the plaintiff had acted unreasonably in the interim where no further evidence emerged to alert him or his solicitors to the existence of the facts of which he said he remained ignorant until 9 May 2012. The issue, as I perceive it to be, was whether the solicitors had acted unreasonably in relying on the informant’s description of the content of the footage and in not pursuing alternative avenues for viewing the CCTV footage before advising the plaintiff that any potential common law was not viable.
112 The defendant submitted that there were a number of steps available to the plaintiff through his solicitors which, if taken, would have given access to the CCTV footage well prior to 1 October 2008. Of course, this submission assumes that in the circumstances it was unreasonable not to access the footage before forming a view about the viability of the proceeding.
113 Firstly, a request could have been made of the defendant to voluntarily provide a copy of the CCTV footage. Secondly, the County Court Civil Procedure Rules applicable at the time provided opportunities preliminary to the issue of proceedings to discover or require production of documents from the defendant or for an order for inspection of the CCTV footage or, lastly, having filed a generally endorsed Writ, to seek discovery of documents from the defendant or require the production of documents by Victoria Police.[56]
[56] See Rules 32.05, 32.07, 37.02 and 42A
114 It was contended on behalf of the Plaintiff that the solicitors acted reasonably in refraining from approaching the defendant for the footage and from commencing any proceeding before the footage had been viewed. I agree. On the facts as found, by late September 2008 the solicitors had investigated the common law claim. Having accessed the available evidence, which included the informant’s report that the footage was of poor quality and inconclusive of the cause of the fall, I do not think it could be said as against them that it was unreasonable or imprudent to advise on the evidence as it was then known.
115 If I am wrong in this view, I note further that there was no evidence that the CCTV footage or a copy of it remained in the possession of the defendant. In this regard, the plaintiff relied on Mr Hollamby’s affidavit. He deposed that, on 26 July 2013, the defendant’s solicitors had subpoenaed Victoria Police seeking production of all records including CCTV footage pertaining to the incident.[57]
[57] Exhibit R1, paragraphs 32-35
116 Under this process, the defendant obtained a copy of the CCTV footage in September 2013. I infer from this evidence that, assuming the defendant would have been amenable to such a request, it did not possess a copy of the CCTV footage prior to the filing of the current proceeding. Accordingly, it is unlikely that, had the solicitors been so minded, an application for preliminary discovery from or inspection of property in the defendant’s power or possession, or the filing of a generally endorsed Writ and the making of an application for discovery, could have led to a viewing of the footage before 1 October 2008 and knowledge of the facts of which the plaintiff said he was ignorant before 9 May 2012.
117 I was not satisfied that, until he had actual knowledge of these matters, the plaintiff ought to have known, of the circumstances particularised on his behalf in the Statement of Claim.
118 On the facts as found, the defendant has not proved that the plaintiff knew or ought to have known that his head injury had been caused or contributed to by some culpability or blameworthiness of the defendant in the three years following the accrual of the cause of action.
119 Lastly, for the purposes of section 27F(1)(c), I find that the plaintiff was not aware, nor could he or his solicitors have been aware, that the injury was sufficiently serious to justify the bringing of an action on the cause of action before 5 January 2009. In so finding I took into account the absence of ongoing treatment, the plaintiff’s reports of his physical and mental condition following his discharge from hospital and Professor Dennerstein’s assessment of his mental state. Of course, by January 2009 the decision not to proceed with a common law claim had been made because, on the available evidence, the plaintiff probably did not know how he came to fall down the stairs. If knowledge of the seriousness of the injury was the only issue on discoverability, the limitations period would have expired on or about 5 January 2012.
120 In summary, I find that the plaintiff neither knew, nor ought he to have known, before any of the potential limitation dates already discussed (1 October 2008, 8 February 2010 or 5 January 2012) that any act or omission for which the defendant was responsible caused or contributed to his fall and head injury. His cause of action was discoverable on 9 May 2012 and was filed within three years from this date and is not barred by section 27D(1) of the Act.
Extension of time
121 It is unnecessary for me to consider the alternative position. However, in view of the lengthy submissions made, I have set out my reasons for granting an extension of time had, contrary to my findings, the limitation period expired at any stage before 19 November 2009.
122 Sections 27K and 27L relevantly provide as follows:
27KExtension of limitation periods
(1)A person claiming to have a cause of action to which this Part
applies may apply to a court for an extension of a period of limitation
applicable to the cause of action under Division 2.
(2)Subject to section 27L, the court—
(a) may hear any of the persons likely to be affected by the
Application as it sees fit; and
(b) may, if it decides that it is just and reasonable to do so, order the
extension of the period of limitation applicable to the cause of action
for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have.
27LMatters to be considered in determining applications for extension of limitation period
(1)In exercising the powers conferred on it by section 27K, a court shall
have regard to all the circumstances of the case, including (but not
limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff
arising on or after the date of discoverability;
(e) the time within which the cause of action was discoverable;
(f) the extent to which the plaintiff acted promptly and reasonably once the plaintiff 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;
(g) 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.
(2)To avoid doubt, the circumstances referred to in subsection (1) include
the following—
(a)whether the passage of time has prejudiced a fair trial of the claim;
and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
123 These provisions empower the Court to extend time and require that, when doing so the Court must also consider the non-exhaustive list of circumstances to which section 27L refers.
124 The plaintiff carries the onus of establishing it is just and reasonable to order extension of the limitation period applicable to his cause of action.[58]
[58]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547
125 The approach to be taken is broadly the same as under section 23A of the Act.[59] The application of section 23A was explained by Buchanan JA in Tsiadis v Patterson,[60] where he made the following observations with which Ormiston and Callaway JJA agreed:[61]
“The matters which the Court is required by s23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”
[59]Delai [21]
[60] (2001) 4 VLR 114
[61] Ibid, [33]
Section 27L(1)(a) – the length of and reason for the delay
126 In Delai, Beach J averted to the possibility that the delay to which subsections 27L(1)(a) and (b) referred was delay commencing from when the cause of action was discoverable. Nevertheless, through his senior counsel the plaintiff indicated acceptance of the settled view that delay refers to the delay between the accrual of the cause of action and the making of the application for an extension of time.[62] The defendant submitted the latter was 13 October 2014, the date on which consent orders were made fixing the date for hearing of the limitation issue.
[62] TN 162 and see Koumorou v State of Victoria [1991] 2 VR 265, Repco Corporation Limited v Scardamaglia [1996] 1 VR 7 and Delai [22]
127 As mentioned, in a Defence, filed on 27 March 2013, the defendant pleaded in the alternative that the plaintiff’s claim was statute barred. In a Reply filed on 6 August 2013 the plaintiff notified an application to extend time if his cause of action was barred.
128 It appears from correspondence passing between the solicitors that, on 6 December 2013, the defendant’s solicitors proposed the limitation issue be dealt with as a preliminary matter. In response, on 9 December 2013, the plaintiff’s solicitors notified the defendant’s solicitors of their intention to join CSI as a second defendant and reregister the company to allow insurers to be found and the company to be legally represented. The plaintiff proposed that determination of the limitation issue as a preliminary issue be revisited after these steps were concluded.
129 On 19 December 2013, the defendant’s solicitors wrote to the plaintiff’s solicitors advising that Deloittes had been unable to assist them with their preliminary enquiries about insurances because the minimal records recovered: “apparently contained no information concerning insurance”. The solicitors indicated the defendant’s agreement to the course of action proposed by the plaintiff’s solicitors but, also notified the plaintiff that the defendant would rely on all past and future periods of delay, including the delay between accrual of the plaintiff’s cause of action and the making of an application for an extension of time.
130 The plaintiff submitted that, when the defendant’s solicitors wrote the letter dated 19 December 2013 they already knew from the advice and documentation received from Deloittes that there was no evidence of insurance. The defendant’s conduct in this regard should, the plaintiff contended, disentitle the defendant to the benefit of the delay occurring between December 2013 and October 2014.
131 Whilst this is often viewed as a convenient and cost effective means of disposing of a significant issue before the substantive hearing, not all extension applications notified in pleadings are fixed for hearing before the trial date.
132 In the present case, I formed the view that, arguably, the plaintiff’s application was made when his Reply was filed and served on or about 6 August 2013. On this basis there was a delay of 7 years, 10 months and some days from the date of accrual of the cause of action. Alternatively, allowing for my analysis of the information available to the defendant, before writing to the plaintiff’s solicitors in December 2013, the defendant had by then already understood that there was no evidence of relevant insurance for CSI. In these circumstances, I was satisfied that the defendant should not be permitted to rely on any further delay occasioned by the plaintiff taking steps to reregister and join CSI as a defendant to the proceeding. On this basis the delay from the date of accrual of the cause of action was 8 years, 2 months and some days.
133 I have, however rejected a further submission made on behalf of the plaintiff to the effect that, if personal injury was discoverable in the sense required by section 27F(1)(c) from the date Ms Sloan submitted her report on 5 January 2009, the period of delay was in fact between 5 January 2012 and 13 August 2013. This submission appeared to contradict the plaintiff’s earlier concession that the length of the delay was to be calculated from the date of accrual of the cause of action without clearly articulating a proper basis for adopting this alternative approach.
134 It was common ground that the plaintiff was required to provide a reasonable explanation for the delay.[63] Of course, the plaintiff’s failure to recognise the extent to which his cognitive functioning was impaired until he underwent neuropsychological assessment explains some of the delay.
[63]Itek Pty Ltd v Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, [89]-[90]
135 The defendant’s submissions on the issue of delay before the plaintiff met with his solicitors on 24 September 2008 and instructed them not to pursue the common law claim, are summarised in the following points:
· no reasonable explanation for delay occurring before 1 October 2008 had been forthcoming;
· the actual CCTV footage, which had been analysed and described in the Police Brief, did not add anything to the case;
· at the worst for the defendant, the plaintiff had inspected the full Police Brief in June 2008;
· the decision in September 2008 not to pursue the common law claim was based on the plaintiff’s assessment of his chances of success, not the CCTV footage;
· the CCTV footage vision was obscured by a pillar. It did not show the plaintiff becoming unconscious while held in a headlock, the plaintiff being released from the headlock or the plaintiff being thrown down stairs;
· there was no requirement that all potential evidence be obtained prior to issuing proceedings and, as recommended by counsel in conference in March 2007, the CCTV footage could have been obtained after common law proceedings were filed;
· the plaintiff and his solicitors had been aware of the existence of the CCTV footage from at least February 2006;
· no real excuse had been offered to justify the failure to act promptly in obtaining a copy of the CCTV footage, which the solicitors advised the plaintiff on 8 April 2008 they would try to view.
136 Indisputably, the plaintiff decided to allow the earliest time limit, calculated from the date upon which the cause of action accrued, to expire.
137 Broadly speaking, the plaintiff’s excuse for the delay before 1 October 2008, if his claim was statute barred, was twofold. Firstly, on the facts as found by me, the plaintiff and his solicitors probably had not known before 5 January 2009 that the injury suffered was sufficiently serious to justify the bringing of an action on the cause of action. As mentioned, this explains some of the delay.
138 Secondly, the plaintiff had acted on the advice of his solicitors. Based on the available evidence, they effectively advised that the prospect of proving negligence against the defendant was poor because neither the witness evidence nor the CCTV footage (the content of the latter as reported by the informant) established what caused the fall.
139 The decision not to proceed was, as the defendant submitted, deliberate. Earlier authority, Itek Graphix Pty Ltd v Elliott, tells us that ordinarily this decision should weigh heavily against a grant of leave to extend time.[64]
[64] Op. cit [91]
140 As earlier mentioned, the interpretation of the CCTV footage is a matter for a jury, if the claim proceeds to trial. However, on the basis that fault was discoverable at least from the time the plaintiff became aware of the content of the Police Brief (whether that was in February 2007 or June 2008 is not of great moment), the plaintiff gave instructions in the belief that the available evidence, which included the footage, did not indicate a viable common law case against the defendant.
141 I was satisfied that, as submitted on behalf of the plaintiff, his case is distinguishable on its facts from Itek. In the present case, the plaintiff acted on his solicitor’s advice and in the belief that the footage was not conclusive evidence of what, if any, conduct for which the defendant was responsible, had caused the fall. In Itek the plaintiff chose not to pursue her common law claim despite advice from counsel to do so and she was, at the time, fully cognisant of the factual circumstances relating to the incident of injury.
142 Having regard to the circumstances of this case, I formed the view that the decision by the plaintiff not to proceed was both understandable and reasonable.
143 The defendant further submitted that the plaintiff had failed to explain numerous significant periods of delay by his solicitors before filing the Writ. The plaintiff conceded there were periods, during which the solicitors had not acted promptly.
144 The defendant identified four periods of delay. Firstly, the period between 18 August 2009 and 19 March 2010, during which time the plaintiff’s solicitors failed to follow up their request to inspect the Police Brief. However, as the plaintiff pointed out, the delay on this occasion was caused by Victoria Police, who had not responded to the VOCAT request for the file, not his solicitors’ failure to make further enquiry of the VOCAT.
145 Secondly, the period between 21 July 2010 and 29 April 2011. On 21 July 2010, the plaintiff’s solicitors were advised by Victoria Police they must pursue access to the CCTV footage through the VOCAT and, on 22 October 2010, the plaintiff instructed Mr Schaefer to continue to attempt to obtain the CCTV footage of the incident. Evidently, this instruction was not actioned until 29 April 2011. However, whilst there was a failure to act promptly, there was some activity during this period (albeit to advance the VOCAT claim) involving various attendances: on 27 July 2010 on Mr Champion of counsel preliminary to the submission of his memorandum of advice; on 19 August 2010, on the plaintiff to discuss the progress of the VOCAT claim and counsel’s advice; on 15 October 2010, on the plaintiff by telephone, to arrange a meeting and, as mentioned, on 22 October 2010, on the plaintiff.
146 Thirdly, the period between 19 May 2011 and 30 March 2012. On 19 May 2011 the plaintiff’s solicitors received correspondence from the VOCAT in which it was indicated Victoria Police had been asked to provide a copy of the CCTV footage. The defendant was critical of the solicitor’s failure to pursue this footage in the 10 months between receiving this advice and being advised by the VOCAT on 30 March 2012 that the footage would only be shown at a Directions Hearing on 9 May 2012.
147 As mentioned, the file note dated 9 May 2012 indicated, among other things, that the VOCAT had only received a copy of the footage in December 2011 and that, when originally released to Victoria Police, the defendant had raised privacy concerns. The plaintiff did not make any submissions directly relating to this period. However, allowing for the circumstances described, any failure to act promptly probably should only apply to the period between January and March 2012.
148 Fourthly, the period between 11 May 2012 when instructions were given to sue and 19 November 2012 when the process was filed. As previously noted, counsel was briefed on 14 May 2012 and the Statement of Claim, as settled by senior counsel, was not received until three days before the solicitors filed process.
149 Lastly, the defendant relied on the delay between 27 March 2013, when the limitations defence was pleaded and the date on which consent orders were made on 13 October 2014 listing this preliminary issue for hearing. As mentioned, if I am wrong in accepting that notification of the plaintiff’s intention to seek to extend the limitations period amounted to making an application for this, I have accepted that the defendant’s conduct disentitled it to the benefit of any delay occurring between December 2013 and October 2014.
150 Accordingly, I have found no fault on the plaintiff’s part for delay. However, subject to the various matters summarised above, some but not all of the delay before and after 1 October 2008 was due to the solicitors’ belief that the plaintiff did not have a viable cause of action at common law and some lack of promptness on their part.
Sections 27L(1)(b) and (2)(a) – prejudice to the defendant and prejudice to a fair trial due to the passage of time
151 Section 27(1)(b) requires the Court to have regard to the established prejudice and the extent to which there was likely to be prejudice. Mere delay itself, when inordinate, may be taken as evidence of prejudice.[65]
[65] Tsiadis [23] and [32], Brisbane South Regional Health Authority at 541, Delai [23]-[25] and Van Gerven v
Amaca Pty Ltd [2012] VSC 131, [44]-[46]
152 Evidence of prejudice was also relevant to the assessment of whether, under section 27L(2)(a), the passage of time had prejudiced a fair trial of the claim.
153 In view of the period over which delay occurred, I have accepted the force of the submission that delay was inordinate and was itself evidence of prejudice.
154 The defendant submitted there was evidence of specific prejudice in that the defendant had lost its ability to seek contribution from CSI, the security services provider and employer of the security guard, under section 23B of the Wrongs Act.
155 Paragraphs 6 to 8 and 25 to 31 inclusive of Mr Hollamby’s first affidavit contained the defendant’s evidence on this issue.[66] I summarised this evidence earlier. CSI ceased trading some 8 months after the incident, it was ordered to be wound-up in November 2006, the company was deregistered some 5 months after the plaintiff filed his Writ and, importantly, Deloittes had not found evidence of relevant insurance.
[66] Exhibit R1, GJH-10 to GJH-13 inclusive
156 The defendant further relied on the plaintiff’s inability to recall the incident and the fact that the security guard’s memory, which was critical to the defence of the case should it proceed to trial, had probably faded. The prejudice arising from this was not, the defendant submitted, ameliorated by the CCTV footage, which it contended did not show the critical moment of interaction between the plaintiff and the security guard immediately prior to the fall.
157 The plaintiff accepted that, in this case, the passage of time of itself gave rise to prejudice, particularly because of the likely impact on the memories of the witnesses. Counsel, nonetheless, contested the defendant’s submission that it had suffered specific prejudice.
158 I agree with the plaintiff’s contentions concerning the defendant’s opportunity to seek contribution from either CSI and/or the security guard.
159 Firstly, as a result of circumstances unrelated to the conduct of the plaintiff, by August 2006 there was no potential to join CSI to any common law proceeding. In short, I have accepted that, where, as in this case, the evidence (adduced by the defendant) indicated that CSI had not held relevant insurance, any application to the Supreme Court for leave to bring proceedings against the company in liquidation pursuant to section 471B of the Corporations Act 2001 (Cth), would likely be refused.
160 Secondly, as submitted on behalf of the plaintiff, in the 12 months after service of the Writ, the defendant did not avail itself of the opportunity to seek contribution from the security guard by filing third-party proceedings.
161 I was further persuaded that any general prejudice to the defendant was probably ameliorated by the availability of the CCTV footage and other evidence. Firstly, the defendant had immediate access to the footage following the incident. Ultimately a jury will determine the forensic significance of this evidence, should this matter proceed to trial. They will decide what the footage shows and whether it supports, for example, the assertion that the plaintiff was let fall down the steps.
162 Secondly, the witness statements made to police by the defendant’s staff, by other witnesses and by the security guard shortly after the incident are available for trial, as is the record of interview with the security guard and the incident report made for the defendant.[67]
[67] Exhibit R1, GJH-23
163 I have also accepted the logic underlying the plaintiff’s submission that other factors probably also impacted the defendant’s retention of documentation relevant to any common law proceeding. One was the likely need to retain relevant documents pending the outcome of the criminal investigation. Another, involved the defendant’s obligation under taxation laws to retain financial documents including its contract with CSI for seven years, ostensibly to the end of the financial year in 2013.
164 Accordingly, I was not persuaded that there was prejudice to the extent claimed by the defendant or that such general prejudice as was attributable to delay and the passage of time was significant and would make a fair trial unlikely.
Section 27L(1)(c) and 27L(2)(c) – the extent to which the defendant took steps to make available to the plaintiff material relevant to the cause of action and the nature of its conduct
165 The defendant submitted it gave the CCTV footage to police at an early stage and had not been approached on behalf of the plaintiff for the footage or any other information. On the facts as found, after handing over the CCTV footage to Victoria Police, it is unlikely that the defendant remained in a position to provide a copy of this footage at any time prior to the filing of the Writ in November 2012.
166 On this issue, the plaintiff again pointed to the likely impact of the privacy concerns originally raised by the defendant, as advised by the Magistrate at the Directions Hearing before the VOCAT on 9 May 2012.
167 If it were the case that privacy concerns expressed by the defendant influenced the decision by Victoria Police to refuse to release the CCTV footage to the plaintiff, or delayed its release to the VOCAT, these matters probably contributed to the lengthy delay in the release of material relevant to the cause of action.
168 These matters notwithstanding, it is evident from the response to the FOI request dated 8 February 2007, that the justification notified by Victoria Police for refusing to release the footage, as well still images from this footage, took into account broader privacy issues. Accordingly, I have proceeded on the basis that the decision by Victoria Police was the primary cause of the delay in releasing the footage until production was required by the VOCAT and that any privacy concern pressed by the defendant was only a partial explanation for this delay.
169 I have already discussed in some detail the impact of the defendant’s conduct vis-à-vis the delay between December 2013 and the fixing of this application for hearing.
Section 27L(1)(d) and 27(2)(b) – the duration of the disability and the nature and extent of his loss
170 Without revisiting the history already summarised, the medical evidence from 5 January 2009 onwards, particularly Ms Sloan’s report, tells us that the plaintiff likely suffered a severe brain injury. This injury has left the plaintiff with permanent and pervasive cognitive impairments. These affect the plaintiff’s speed of mental efficiency, attention skills, memory and executive abilities, his tolerance levels and reduce his ability to regulate his behavioural responses.
171 The plaintiff further contends he has suffered loss of income, his employment options for the future are constrained and he will require substantial and ongoing assistance in the future in the organisation of his affairs.
Section 27L(1)(e) and (f) – time at which the cause of action was discoverable and 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
172 This issue has been canvassed in some detail already. If, as alleged by the defendant, the cause of action was discoverable on a date prior to 19 November 2009, the plaintiff relied on the nature and the extent of his loss as a factor which, he submitted, weighed heavily in favour of an extension of time. Moreover, we know from the plaintiff’s uncontested evidence that he acted promptly in instructing his solicitors to proceed with the common law claim once appraised by the solicitors of their interpretation of impact of the CCTV footage.
Section 27L(1)(g) – the steps taken by the plaintiff to obtain medical or other expert advice and the nature of the advice received
173 As to the medical advice obtained, until assessed by Ms Sloan, the message conveyed by the plaintiff to his solicitors had been that he had made a good recovery from significant head injuries. In my view, the failure to obtain neuropsychological testing earlier is understandable when considered in the context of the information conveyed by the plaintiff to the solicitors about his treatment needs and his failure to recognise the extent of his memory and other functional difficulties.
174 Much was said about the prospects of a claim in negligence against the plaintiff’s solicitors. They have not conceded negligence.
175 Tsiadis is authority for the proposition that when considering an application to extend time it is appropriate to have regard to the plaintiff’s ability to recover damages from his or her solicitors where the solicitors’ negligence has necessitated the application. However, as Beach J observed in Delai: “This, of course, does not mean that in every case where there is a possibility of successfully bringing proceedings against a solicitor, that the discretion…. should be exercised against the plaintiff.”[68]
[68] Op. cit. [27]
176 The defendant submitted that the nature of any advice given by the plaintiff’s solicitors was very much interrelated with the question of delay and it should weigh heavily against the grant of an extension.
177 As earlier mentioned, it was not disputed that the plaintiff allowed the first time limit, calculated from the accrual date, to expire, albeit on the advice of his solicitors. On the facts as found, the advice given in September 2008 was not predicated on a need to independently assess the CCTV footage.
178 The application for an extension arises only if the CCTV footage was not, as the plaintiff claimed, determinative of the issue of fault and fault was discoverable either before 1 October 2008 or in the period between 8 February 2007 and 19 November 2009.
179 The defendant submitted that, if the CCTV footage had been critical to the plaintiff’s case in negligence, the solicitors’ delay in handling the file and taking almost 7 years to obtain the footage, likely amounted to negligence and was a basis for a claim by the plaintiff against the solicitors for loss of his cause of action against the defendant.
180 The plaintiff contended as follows.
181 Firstly, counsel submitted that what the plaintiff himself knew or ought to have known should be distinguished from his reliance on advice from his solicitors. In this regard, I accept that the plaintiff himself did not know that any act or omission for which the defendant was responsible caused or contributed to the fall until 9 May 2012 when the solicitor reported his opinion of what was depicted on the CCTV footage and its evidentiary value.
182 Without repeating my earlier findings, I have rejected the submission that the advice given to the plaintiff into September 2008 was that the CCTV footage was critical to the determination of the merits of the common law proceedings. On the contrary, I found the advice not to proceed was based on the available evidence. The omission in this case, if any, probably involved the failure of the solicitors to take adequate steps to pursue and assess existing evidence before advising the plaintiff his claim was not viable. Even if I’m wrong in my understanding of the advice given, it remains the case that, in keeping with the submissions made and accepted by Beach J in Delai, the plaintiff was not responsible for the delay. He consulted solicitors promptly and did all that was required of him.[69]
[69] Op. cit. [36]
183 It was accepted that the availability of a negligence action against the plaintiff’s solicitors was a relevant consideration. This does not, however, mean that in every case the possibility of successful proceedings against a plaintiff’s solicitors would defeat an application for extension of time. Various authorities were cited in support of this proposition, which Forrest J recently articulated in Gordonv Norwegian Capricorn Line (Australia) Pty Limited as follows:[70]
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well is in the added costs and the complexity of the proceeding against the former solicitor.”
[70] [2007] VSC 517 [86] and see also, Delai [27], Tsiadis [28], [29] and [34] and Dammanv Peninsula Health [2012] VSC 572 [22] and [27]
184 In Gordon Forrest J assessed the claim against the plaintiff’s former solicitors to be a powerful if not overwhelming case, the strength of which could be determined. He proceeded on the basis that the prospect of a successful claim against the former solicitors required real consideration. Ultimately, this was a significant factor in his Honour’s decision not to extend the time for bringing the claim against the defendant.
185 Relevantly and more recently, in Damman v Peninsula Health,[71] Forest J found that the actual and likely prejudice to the defendant was high and incurable and that the fault for the delay was largely attributable to the failure of the former solicitors to issue proceedings before the limitations period expired. His Honour, nonetheless, concluded that whilst an appropriate consideration, the availability of a cause of action against the solicitors was not of itself determinative of the application for extension of time.
[71] Ibid
186 Unlike the present case, the plaintiffs in Gordon and Damman conceded the claims were statute barred. My earlier discussion of discoverability shows, however, that any potential for suing the plaintiff’s solicitors is by no means clear-cut. As contended for by senior counsel, where as in this case the cause of action against the solicitors would involve detailed consideration of the reasonableness of judgment calls made by the solicitors, the outcome of any cause of action was difficult to predict.
187 I formed the view that in the circumstances of this case the prospect of a successful claim against the solicitors should be afforded minimal weight.
Weighing competing considerations
188 The proceeding was issued 7 years, one month and 18 days after the incident. Doing the best I can in weighing the various considerations discussed above, had it been necessary to do so, I formed the view that it was just and reasonable to extend the period of the limitations to the date of the filing of the Writ and Statement of Claim on 19 November 2012.
Orders
189 I will make an order extending time and hear from the parties on the question of costs.
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