Baxter v Calagos [2009] ACTSC 133

2. The plaintiff was injured in a motor vehicle accident that occurred at the intersection of Companion Crescent and Ginninderra Drive, Flynn, in the Australian Capital Territory on 4 May 2002. She was the front seat passenger of a blue Volvo 850 being driven by her husband heading east on Ginninderra Drive. The defendant was an unaccompanied learner driver driving his father's Toyota Prado 4WD heading south on Companion Crescent approaching Ginninderra Drive. The defendant failed to give way at a give way sign at the intersection and collided with the vehicle in which the plaintiff was travelling.

3. The plaintiff suffered whiplash injuries and bruising to her left knee and along the line of her seatbelt. The plaintiff claims that she continues to suffer from chronic neck pain causing headaches, back pain and pain in the left hip.

4. The plaintiff attended Calvary Hospital the morning after the accident for x-rays. She was referred to Dr Charles House for continuing treatment. She was referred to Mr Tim Maher for physiotherapy treatment and then to Mr Tim Deeble before undergoing chiropractic treatment from Mr Donald McDowell. From about 2007 to the present time she has been consulting Dr Thinus Van Rensberg for her pain management as well as receiving massages and chiropractic treatment from Ms Amber Jones and Mr Mark Tapper.

5. Prior to this accident, the plaintiff was a primary school teacher and was then employed in teaching and other roles in the TAFE system. She obtained counselling qualifications and eventually commenced a counselling business on her own, first at home and then from a clinic. Her business was at an early stage at the time of the accident. In mid-2006 the plaintiff says that she retired because she could not continue working with the levels of pain that she experienced.

6. The plaintiff did not consult a lawyer until 6 November 2008. She says that it was only then that she was advised about the limitation period applicable to her matter.

7. Since that time she has obtained a considerable amount of material concerning her claim which includes the AFP accident report, financial and personal records. She has also obtained reports and material relevant to her injury from those who have treated her. All these persons would appear to be available to give evidence if required.

Limitation Act 1985 (ACT)

8. Subsections 36(1)-(4) of the Limitation Act provide:

36 Personal injuries

(1) This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.

(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.

(3) In exercising the powers given to it by subsection (2), a court shall have regard to all the circumstances of the case, including, for example, 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 conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

_(4) The powers given to a court by subsection (2) may be exercised at any time notwithstanding - _

(a) that the limitation period in relation to the relevant cause of action has ended since the cause of action accrued; or

(b) that an action in relation to such personal injuries has been begun.

9. The principles upon which a court acts in an application for an extension of time such as provided for by s 36 are well settled. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (Brisbane South), the High Court was concerned with the Limitation of Actions Act 1974 (Qld) providing for an extension of time after expiry of a limitation period.

10. In passages which are frequently cited, McHugh J dealt with the frame of reference for the discretion to extend time at 551:

_The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates" (_R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [1972] USSC 146; (1972) 407 US 514 at 532)__, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

I agree with McHugh J, for the reasons which he gives, that s 31 of the Limitation of Actions Act 1974 (Q) does not confer upon an applicant for an extension of time a presumptive right to an order once the two conditions laid down by sub-s (2)(a) are satisfied. The section confers a discretion upon a court to extend time and that discretion should only be exercised in favour of an applicant where, in all the circumstances, justice is best served by so doing. The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.

12. As far as the defendant is concerned, a defendant can only be said to have an evidentiary onus to raise any consideration that would tell against the exercise of the discretion. The ultimate onus to satisfy the court remains on the applicant (see Gummow and Toohey JJ at 547):

The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour (see Main v Main [1949] HCA 39; (1949) 78 CLR 636 at 643, though the discretion there was not a discretion to grant, but to refuse, a decree for dissolution of marriage). There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 645 at 474_:_

It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.

13. In Web Scaffolding Pty Limited v Laws [2009] ACTSC 79 (10 July 2009) (Web Scaffolding), a recent case in this Court, Buchanan J upheld an appeal from the Master on the basis that it appeared to him that in the exercise of the discretion to extend time, the Master had imposed an onus on the defendant. Mr Hausfeld, who appeared as counsel for the plaintiff in the present case, suggested that Buchanan J could be said to have not distinguished between the ultimate and evidentiary onus referred to in the Brisbane South case. Web Scaffolding is currently the subject of an appeal to the Court of Appeal but I am not able to see that Buchanan J misapplied the Brisbane South authority in the way that was suggested.

14. In any event, the present case does not appear to me to raise any issues that might be the subject of contention in the prospective appeal in Web Scaffolding. The defendant has not called evidence and the matter is to be determined on the evidence called by the plaintiff. The defendant seeks to point to aspects of the plaintiff's evidence as providing the circumstances and evidence that supports his opposition to the application.

15. Bearing those principles and matters in mind, I consider this matter within the framework provided by s 36 of the Limitation Act. I appreciate that my consideration is not limited to those matters set out in s 36(3) but those matters were the principal focus of the submissions put to me and any more general considerations flow from them.

Reasons for delay (s 36(3)(a) of the Limitation Act)

16. Proceedings in this matter were commenced approximately nine months after the expiration of the limitation period.

17. In cross-examination of the plaintiff, Mr Pilkinton, who appeared as counsel for the defendant, sought to challenge the plaintiff's explanation for this delay.

18. The plaintiff's explanation of the delay between the accident in May 2002 and her first consultation with the solicitors in November 2008 is that she believed and hoped she would recover from the subject accident at a similar rate to a previous whiplash injury she suffered in 1969, from which she made a quick and total recovery. The plaintiff says that it was not until November 2008 that she finally realised no improvement had been made and that the costs for medical treatments will be ongoing.

19. A further reason provided by the plaintiff is that she "felt very sorry for the young lad, who caused the accident". She says that her previous experience as a teacher and a counsellor makes her very sympathetic towards young people and therefore she did not want to institute proceedings against the defendant. In particular, she knew "he had several traffic offences to face" and believed that "a 16 year old could make a stupid mistake and should be given a chance to rectify his mistakes".

20. The plaintiff also says that she knows two other people who have been involved in compensation claims who became "virtual invalids while going through the legal process" and at the times she was considering what she should do, she did not want to go through the same process.

21. The core issue in cross-examination was whether the plaintiff knew from May 2002 that she could, if she wished, seek compensation for her injuries. The plaintiff admitted that she knew "there was such a thing as compensation" but she emphatically denied that she had any knowledge of a limitation period. She said that she was equivocal about any entitlement to seek compensation before she consulted the solicitors in November 2008.

22. The following exchange took place in cross-examination:

MR PILKINTON: I put to Mrs Baxter some time ago now that she knew she had an entitlement to pursue compensation and she agreed with that.

THE WITNESS: No, I did not agree.

...

THE WITNESS: Sorry, I did not agree to that. I agreed that I had - that I knew that there was such a thing as compensation.

MR PILKINTON: ...

I had to ask that question about 10 times because - anyway. I'm suggesting to you this, that you knew from May 2002 that you could, if you wished, seek compensation for your injuries?---No, I disagree. I did not think I would fit into that category, for some reason.

...

Well, you haven't answered it, I clearly suggest to you. I put to you again that you knew in 2002 that if you wanted to you could seek compensation for your injuries?---In May 2002 I did not even think about compensation. In May 2002 I was in so much pain and trying so much to get medical help that I did not - that was not even a consideration, and so in May 2002 I have to say no, I did not because I didn't - I didn't even think about it. You have to be consciously thinking about something to know about it.

Well, when do you say that you knew you could claim compensation---The time that I knew that I could claim compensation was when I saw Craig Edwards [her solicitor].

23. Mr Pilkinton asked me to take into account the plaintiff's evasiveness in answering the direct questions that were posed as to her right to compensation and therefore not to accept her explanation. However, it does not seem to me fair to conclude, as Mr Pilkinton urged, that the plaintiff seemed reluctant to agree to a simple proposition. To the contrary, I find that the evidence given by the plaintiff under oath during both examination-in-chief and cross-examination was clear and consistent. What the plaintiff was saying was that she knew personal injury compensation was something potentially available but she was unaware of her entitlement to pursue compensation until she consulted the solicitors in November 2008, six months after the limitation period had expired. There were also considerations such as her wish to not get the teenage driver into further trouble and the counter-productive effect of two compensation claims of which she was aware. It may be accepted that the plaintiff did not pursue damages in this matter for a considerable period of time but the decision not to do so was not an informed one. I am satisfied that the plaintiff had no knowledge of the limitation period until after it had already expired.

24. Overall, I am satisfied with her explanation for the reasons for the delay in bringing the proceedings.

Prejudice to the defendant (s 36(3)(b) of the Limitation Act)

25. In Brozinic v PHC Operations Pty Ltd t/as Hyatt Hotel Canberra [2008] ACTSC 20 (14 March 2008) at [14], Master Harper summarised the four broad rationales for limitation periods that McHugh J had referred to in Brisbane South at 552-553 as:

... First, relevant evidence was likely to be lost as time went by. Second, it was oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims could no longer be made against them. Insurers had a particular interest in knowing that they had no liabilities beyond a definite period. Fourth, the public interest required that disputes be settled as quickly as possible.

(Also see Sessions v Phengsiaroun [2008] ACTSC 132 (28 November 2008) at [57].) Each of the matters to which Master Harper refers is relevant to any assessment to the extent to which a defendant has been prejudiced by the delay.

26. In the present case, the defendant has not adduced evidence of circumstances to show specific actual prejudice in this case. There is, as the authorities show, no obligation upon a defendant to put on evidence to meet an evidentiary onus, but the defendant may point to other evidence in the case. It may also be said that generally the passage of time will inevitably give rise to the potential prejudice to the defendant. That prejudice may not be able to be readily identified. Against this presumed prejudice, the persuasive onus requires the plaintiff to establish that the commencement of this action would not result in significant prejudice to the proposed defendant.

27. On behalf of the plaintiff, it is contended that no prejudice has arisen in this claim purely from the passage of time with respect to the nature of the motor vehicle accident because the accident was well documented in police reports and the insurer had early knowledge that had resulted from the resolution of the property damage aspects of the accident. It is also submitted that comprehensive medical evidence and evidence about the plaintiff's financial status including business loss and tax returns are also still available.

28. On behalf of the defendant, it is submitted that there is clear evidence of significant prejudice in addition to the reasonably anticipated consequences of delay and what might be presumed from that circumstance. It is submitted that there is no evidence from the plaintiff's medical reports that supports the claim that she now makes in her evidence in these proceedings that she continues to suffer from "chronic neck pain causing headaches, back pain and pain in the left hip". It is also submitted that by virtue of the delay, the defendant has been denied an earlier opportunity to have the plaintiff medically examined to test whether or not the plaintiff has a disability in any of those claimed areas and whether it is causally related to the subject accident. However, in my view, that does not mean that the defendant has necessarily sustained significant prejudice by reason of those claims now being made. Rather it identifies an issue that needs to be resolved in light of the fact that her claims are not supported by the medical reports upon which she relies.

29. A similar submission with respect to medical evidence was made to Buchanan J in Web Scaffolding. I was invited to draw an analogy with this case and Buchanan J's decision at [22]:

In submissions on behalf of the plaintiff on the appeal it was contended that prejudice to the defendant was overcome, in part, because the plaintiff's medical records from about the time of the plaintiff's injury would be available. In my view such a circumstance is not simply to be taken as adequate to meet a defendant's ordinary right of investigation and preparation of its own case, including the right to seek interviews with potential witnesses to the actual events.

Counsel for the defendant also drew Master Harper's attention to the plaintiff's own evidence that he had held numerous jobs since his accident and to likelihood of a real issue, in any litigation, about whether the plaintiff's present symptoms could be causally limited to the earlier accident. The ability to investigate such possibilities necessarily diminished with the passage of time.

30. As far as the plaintiff's medical evidence and the defendant's ability to investigate it are concerned, it seems to me that the present application is distinguishable from the circumstances leading to Buchanan J's decision in Web Scaffolding. The passages to which I was referred are more directed towards the actual liability issues instead of the particular feature of prejudice which is the focus of the present application. In the present case, the defendant by his insurer is in possession of all of the reports and clinical notes from all of the treatment providers which were sought and provided by the plaintiff and by way of notices of non-party productions. There is little scope for independent investigation of those matters. I am satisfied that there is not likely to be any significant prejudice to the defendant in relation to exploring those issues with those providers. It may also be noted that it is the plaintiff who bears the onus in respect of any issues of causation that may arise during the trial.

The conduct of the defendant (s 36(3)(c) of the Limitation Act)

31. It was not submitted that the defendant failed to make available to the plaintiff the means of ascertaining relevant facts.

The duration of the plaintiff's disability (s 36(3)(d) of the Limitation Act)

32. I accept the plaintiff's evidence that there are ongoing injuries and disabilities which have continued from the accident onwards.

Prompt and reasonable action on the part of the plaintiff (s 36(3)(e) of the Limitation Act)

33. The Court is required to consider the extent to which the plaintiff acted promptly and reasonably once she knew of her rights to an action for damages. From the plaintiff's first consultation with the solicitors in November 2008 to the commencement of proceedings in early February, given the intervention of Christmas and New Year, I am satisfied that the plaintiff and her solicitors acted reasonably expeditiously in commencing the proceedings.

Steps taken by the plaintiff (s 36(3)(f) of the Limitation Act)

34. I am also satisfied that the plaintiff has taken positive steps to obtain medical, legal and other expert advice once she became aware of her entitlement to compensation. That is demonstrated by the substantial amount of material, to which I have earlier referred, that the plaintiff assembled after consulting her lawyer on 6 November 2008.

35. Having regard to all of these matters, and on an overall consideration of the matters put to me, I consider that it is just and reasonable to order that the period within which the plaintiff's action be brought be extended to 19 February 2009.

36. In relation to costs, the plaintiff comes to the Court seeking an indulgence. The defendant has acted reasonably in opposing the application. The plaintiff is to pay the defendant's costs of this application. The costs should be recoverable on the making of final orders in the action.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiff/applicant: Mr S R Hausfeld

Solicitor for the plaintiff/applicant: Maliganis Edwards Johnson

Counsel for the defendant/respondent: Mr S H Pilkinton

Solicitor for the defendant/respondent: DLA Phillips Fox