Facts
5The plaintiff is presently aged 36 years. He completed his trade qualifications as an automotive spray painter at age 22 years. On 21 May 2006, when the plaintiff was aged 30 years, he was involved in a motor vehicle accident in circumstances where he was a passenger in a vehicle driven by his wife, the defendant.
6The circumstances of the accident were that the plaintiff's vehicle had been parked in the breakdown lane of a Motorway whilst he attended to the adjustment of a mechanical problem with the vehicle. After he had rectified the problem he re-entered the vehicle as a passenger in order to resume the journey that he and his wife had embarked upon.
7In doing so, the defendant drove the vehicle out of the breakdown lane and into the path of a passing vehicle that was travelling in the same direction. A collision then ensued. There were two impacts in the course of these events. The two vehicles bounced off each other after the initial impact and then came into further collision with each other. The vehicle in which the plaintiff was seated then spun around several times before coming to rest in the middle of the road. The collision described by the plaintiff involved significant force and damage to the vehicle in which he was seated. In these events the plaintiff was thrown about within the cabin of the vehicle and sustained a number of injuries notwithstanding that he was wearing a seat belt.
8In the events that followed, the plaintiff felt shocked. He did not initially fully appreciate the nature and extent of his injuries. He therefore declined the suggestion made by an ambulance officer at the scene that he and his wife attend hospital for medical attention. Instead, he called some friends who then attended the scene and drove the couple to their home. At the time, the plaintiff became aware of pain in his neck, shoulders, back, abdomen and knees.
9Liability for the collision was not in doubt. In the defence filed in these proceedings, the CTP insurer has admitted the relevant facts giving rise to the claim. The CTP insurer has also admitted that there was a relevant breach of the duty of care owed to the plaintiff.
10On the following day, 22 May 2006, the plaintiff consulted his general practitioner, Dr Morsingh. At that time his principal concerns were neck pain and back pain. After arranging for an x-ray of the cervical spine, as that appeared to be the area of most concern to the plaintiff at the time, Dr Morsingh advised the plaintiff to the effect there was no abnormality shown on the x-ray. He also advised the plaintiff that the injuries to his neck and low back were of a muscular nature and that they would heal in time, and reassured him that he would recover from those injuries. In the interim the plaintiff was prescribed physiotherapy treatment along with painkilling and anti-inflammatory medication.
11The plaintiff stated, and I accept, that there was nothing arising from the medical consultations he had with Dr Morsingh that led him to believe he had been seriously injured. He said, and I accept, that at the time he saw Dr Morsingh he had not been advised by that doctor, or anyone else for that matter, to pursue a claim for damages for personal injury as a result of the accident in question.
12The plaintiff stated that he was initially unaware that he had a right to potentially claim compensation for his injuries. He also stated that in accordance with the initial medical advice he had received, he believed he would in time recover from his injuries. In accordance with that belief, he continued to work albeit with difficulty and he continued to take the medications that had been suggested to him by his doctor.
13In the months that followed, the expectation of the plaintiff was that he would recover from his injuries, even though he had difficulties with performing some of the physical aspects of his pre-injury employment as a spray painter. He said, and I accept, that in the context of him having taken some days off work as sick leave, his employer made some adjustments to his work regime and his co-workers assisted him with some of the physical tasks involved with his work. In these events there was no discussion of the possibility of a claim being made by the plaintiff for compensation for personal injury. He persevered with his work despite experiencing considerable pain because he was concerned to maintain the payments he was obliged to make in respect of his sizeable mortgage.
14On 16 October 2006 the plaintiff again consulted Dr Morsingh because he was experiencing a worsening of his low back pain at that time. The following day, at the referral of Dr Morsingh, he had an x-ray of the lumbo-sacral spine which reportedly showed no abnormality.
15Over the course of time, the plaintiff continued to hold the belief he would recover from his injuries. In the period up until 27 November 2007 he saw Dr Morsingh on several further occasions and he also had physiotherapy treatment for his neck and back problems. This was also in the context of receiving reassurance from Dr Morsingh to the effect that it was expected that he would recover from the problems he was experiencing. The plaintiff said, and I accept, that the physiotherapist who had treated his resultant muscular complaints had not suggested to him that he might have had a claim to pursue monetary compensation for his injuries.
16In November 2007, in addition to having ongoing neck and back pain, the plaintiff began to experience pain radiating from his back to his left thigh and leg. When he drew this problem to the attention of Dr Morsingh he was again reassured that he would experience recovery from these problems. In that expectation, the plaintiff continued to take the medications that had been prescribed for him.
17However, in November 2007 the plaintiff found that his work was causing him difficulties with aggravation of his neck and back pains. In December 2007 he arranged to change his employment, still within his trade as a spray painter. He believed that his new position would involve less arduous work. The plaintiff's belief in that regard was based upon his understanding of the particular work system that operated at the new employer's premises, where there was assistance from labourers available to him, thereby allowing him to carry out the less arduous tasks associated with spray painting, leaving the heavier work tasks to others.
18The new job also provided the plaintiff with the opportunity to carry out a different class of work than he had been doing beforehand. This was congenial to him as he had an ambition to build upon that experience in order to one day set up his own business in the automotive repair industry.
19Accordingly, whilst the plaintiff still continued to experience pain in his neck and in his back, even in that new employment, he persevered in his work without having an understanding that he had a right to claim compensation. During this time the plaintiff continued to work in his trade and was not experiencing any loss of earnings.
20These events continued until April 2008, when the plaintiff experienced some aggravated back pain due to the physical requirements of his work. On 14 April 2008 he again consulted Dr Morsingh for his worsening back and left leg pain. He was prescribed some stretching exercises and medication. He subsequently had a short period of medically certified time off work, but he then continued on in his employment, albeit whilst continuing to have pain and difficulty.
21On 25 June 2008, significantly, the plaintiff experienced what he described as a "clunk type noise" in his lower back whilst stretching. Thereafter, he experienced the onset of extreme lower back pain whilst carrying out the ordinary tasks of his work, which involved occasional bending down to pick up objects. He left work on that day, and on the following day he sought out medical attention. Dr Morsingh was not available for consultation at that time, so he saw Dr Parasu, another doctor in the same practice, for a consultation about the significant back stiffness he was experiencing at that time. Dr Parasu advised the plaintiff to apply some proprietary heat generating liniment to his back, and he gave him a medical certificate to remain away from work for 2 days.
22Co-incidentally, as the plaintiff was leaving the doctor's rooms he happened to meet his mother who was there to see another doctor whom she had been consulting. On being informed of the nature of the problem the plaintiff was experiencing, his mother insisted that the plaintiff consult the doctor she had been seeing, Dr Al-Horani, for further medical advice. Dr Al-Horani saw the plaintiff that same day and after taking a history of injury in the motor vehicle accident in question, he ordered a CT scan of the plaintiff's lumbar spine. That scan took place on 2 July 2008.
23On 3 July 2008, following receipt of the report on the CT scan of the plaintiff's back, Dr Al-Horani advised the plaintiff that he had a serious back injury. He immediately referred the plaintiff to Dr Owler, a neurosurgeon, and he provided the plaintiff with a medical certificate to remain away from work until 11 July 2008. Dr Owler was initially unavailable for consultation in the ensuing days, and as a result, Dr Al-Horani arranged for the plaintiff to undergo an MRI scan of his lumbo-sacral spine on 8 July 2008.
24In these events the plaintiff stated that, based on the previous medical advice he had received from Dr Morsingh, he had held what he had later come to recognise as being a misplaced optimism for his recovery from the injuries he had sustained in the accident in question. Instead, he had experienced deterioration in his symptoms.
25The plaintiff stated, and I accept, that it was Dr Al-Horani who first drew his attention to the prospect of looking into whether he could make a claim for compensation in respect of the injuries he had received in the accident in question. He then became concerned and pre-occupied that his injuries might have a seriously adverse impact upon his ability to earn a living, and he was also concerned about the cost of specialist medical treatment that may not have been recoverable through Medicare.
26The plaintiff stated, and I accept, that neither he nor anyone in his family or circle of friends and acquaintances had ever discussed the availability or possibility of him making a CTP insurance claim for damages for personal injury in respect of the accident in question. I also accept that this remained the plaintiff's position until a date in July that followed his consultations with Dr Al-Horani.
27In July 2008 the plaintiff met a friend of his wife, Ms Martinovic, who, on learning that the plaintiff was experiencing a worsening of his injury-related problems due to a motor vehicle accident, suggested that he pursue a claim for compensation for those injuries.
28Ms Martinovic recommended to the plaintiff that he consult Ms Pechanats, a solicitor in the law firm Keddies, for advice concerning the possibility of him making a claim for compensation. That advice was based upon Ms Martinovic's experience of her own mother having made such a claim. The plaintiff acted on that suggestion. Initially he ascertained that Ms Pechanats was away on leave at that time, so instead, on 14 July 2008, he saw another solicitor in that firm, Mr Valis, for advice on the matter that had been drawn to his attention.
29At his initial consultation with Mr Valis on 14 July 2008, the plaintiff had not come to that consultation prepared with the necessary claims information that was required by solicitors to investigate whether he had a claim. This included details of the owner or driver of the other vehicle, the insurance details of both vehicles, the name of the investigating police officer and the police event number assigned to the collision. That information was later provided to Mr Valis by the plaintiff's wife by email on the following day, once the requirements for this information were made known.
30At the 14 July 2008 consultation, Mr Valis advised the plaintiff firstly, of the need for a claim form of the type required under the MAC Act scheme to be lodged within six months of the date of the accident, and secondly, that the plaintiff was required to provide a full and satisfactory explanation to the CTP insurer for the delay that had occurred in lodging the claim form.
31At the hearing of the motion the insurer challenged the plaintiff's account of those events and suggested that the plaintiff must have known of the requirement to lodge a claim form within the required six-month period. The plaintiff explained that beforehand, he had never had occasion to have such knowledge.
32In the context of that challenge, I have considered the credibility of the plaintiff's evidence as summarised above. In that consideration I was left with the clear impression that the plaintiff gave his evidence carefully and honestly, and that he had been naïve to matters of CTP insurance claims before he received the advice on those matters from Mr Valis as he had described. I was reinforced in that view by the fact that when the plaintiff went to see Mr Valis on 14 July 2008, he had no idea what information or documentation he was required to bring with him in order for him to be in a position to be advised in connection with his possible rights concerning the accident in question.
33At the 14 July 2008 consultation with Mr Valis, the plaintiff was asked to sign the required authorities so that relevant information could be released and obtained on his behalf to enable a claim to be initiated on his behalf.
34On 15 July 2008 the plaintiff was informed by Dr Al-Horani that the MRI scan of his lumbar spine that he had undergone on 8 July 2008 had revealed a large disc prolapse in the lumbar spine, for which he would probably need surgical treatment. A report from Dr Al-Horani described the MRI finding as comprising a large paracentral disc protrusion at L5/S1 with marked compression of the S1 nerve root.
35The plaintiff later attended upon Dr Morsingh for the completion of a formal CTP medical certificate to enable his claim to proceed. He said that he took that step because at that time he believed that he needed to see that doctor for that certificate because the earlier historical consultations that had followed the 2006 accident had been with that doctor.
36On 16 July 2008, at the referral of Dr Al-Horani, the plaintiff was seen by Dr Owler, a consultant neurosurgeon, who informed him that he required prompt surgical treatment for his back condition as other treatments were of no assistance. Subsequently the plaintiff underwent a micro-discectomy procedure at Westmead Hospital on 14 August 2008. As a result he was given a certificate of unfitness for work until 25 October 2008.
37During these events the plaintiff was suffering from considerable stress due to his concerns about his medical condition and the impact that his medical condition might have upon his ability to work, and with regard to his ability to make the payments required by his mortgage. As a result of those matters he said, and I accept, that he became to a degree disorganised in the arrangement of his personal affairs. I infer from that evidence that he was preoccupied with his medical and financial position rather than focussing upon his legal rights to possibly claim compensation.
38However, the plaintiff attended to the required post-surgical examinations and he pursued the recommended rehabilitation treatment. He informed his solicitor of the fact that he had undergone surgery.
39On 21 August 2008 the plaintiff's solicitor wrote to him confirming his instructions on matters concerning the accident, and on the matters that were required for the completion of a claim form, and also concerning the requirement of providing the insurer with a full and satisfactory explanation for the delay in making the claim. The plaintiff stated, and I accept, that at the time he received that advice, he had understood that the relevant explanation for the delay needed to be submitted to the insurer at the same time the claim form was to be lodged.
40In the period between August and October 2008 the plaintiff was obviously pre-occupied with attending to medical appointments and his health, and financial concerns. In that time he also obtained a certificate from Dr Morsingh and provided his solicitors with information for the preparation of a statutory declaration in which he outlined for the insurer his explanation of the events and concerning the delay that had been incurred in making his claim.
41The plaintiff approved and signed a statutory declaration which dealt with those matters. A copy of that document was exhibited to his affidavit read in the proceedings. He understood that the required Personal Injury Claim Form and the explanation for the delay had been served on the CTP insurer on or about 24 or 27 October 2008.
42When the plaintiff returned to his pre-surgical employment on about 26 October 2008, he persevered with that employment for about 5 weeks before his employer asked him to resign from his position due to difficulties the plaintiff was experiencing in carrying out his work. The plaintiff's resignation was requested after his employer had beforehand tried to organise lighter work for the plaintiff to accommodate his neck and back problems.
43As a consequence of the above circumstances the plaintiff now seeks to make a claim for significant damages, including damages for past loss of earnings and for future loss of earning capacity.
44In these events, the plaintiff stated, and I accept, that he had no background knowledge of medical and legal matters concerning the need to abide by a time limit for lodging a claim. He said that he was reliant upon his medical and legal advisors concerning such matters, and that he complied with all requests for information from those advisors once he had consulted them for advice.