Hayes v Transport Accident Commission [2010] VSCA 104

PRACTICE AND PROCEDURE - Whether leave required from refusal to grant extension of time.

1 I will ask Neave JA to deliver the first judgment.

2 On 3 August 2009 a County Court judge dismissed an application made by the applicant, Calvin Hayes, under s 23A of the Limitations of Actions Act 1958, for an extension of time to bring a common law action for damages. The claim related to injuries which the applicant allegedly suffered when he was run over by a taxi on 29 November 1991. This is an application under s 74(2D) of the County Court Act 1958 for leave to appeal against that decision.

3 On 19 December 2008 the same judge had previously granted leave to the applicant to initiate proceedings to recover damages for an injury to his cervical spine suffered in that accident, on the basis that it was a 'serious injury' for the purposes of s 93 of the Transport Accident Act 1986. At the same time, her Honour made directions for the conduct of an application for an extension of time under s 23A of the Limitation of Actions Act 1958, which was issued during the hearing of the serious injury application. The effect of her Honour's later refusal to extend time was that the applicant cannot pursue his claim for common law damages in relation to the serious injury.

4 Both parties proceeded on the basis that the judge's refusal to grant an extension of time was a judgment or order of the court in an interlocutory application, for which leave to appeal is required. Those words have been held to relate to the nature of the judgment or order made rather than to the nature of the application.[1] A decision to grant an extension of time has been held to be an interlocutory order.[2]

5 In the absence of authority, I would have been inclined to hold that, in the circumstances of this case, where it is highly unlikely that the applicant could successfully make another application for an extension of time, the judge's order refusing leave to extend time was a final decision, so that no leave to appeal was required. That view is supported by an obiter dictum of the Full Court of the Supreme Court in Speer v Adamson,[3] expressing the opinion that an order refusing an extension of time is a final order.[4] However, in D A Christie Pty Ltd v Baker,[5] the Court held that an order refusing an extension of time under s 23A did not necessarily preclude the applicant from making a second application.[6] Baker was relied on by Chernov JA in Lovejoy v Carp to find that leave was required to appeal from an order refusing an extension of time because such an order 'does not finally determine the legal rights of the parties as distinct from determining the application' and is interlocutory.[7] It is therefore necessary to decide whether leave to appeal should be granted.

6 In order to obtain leave to appeal, the applicant must show that the interlocutory order was attended with sufficient doubt to justify its reconsideration on appeal and that a substantial injustice would be caused to the applicant if the decision is allowed to stand.[8]

7 The applicant's counsel submitted that her Honour erred in three respects. First, her Honour should not have taken account of the delay between November 1991, when the applicant was injured, and January 2000, when he sought advice from Mr Paul Simon of McPherson & Kelly Lawyers Pty Ltd, and the further delay between 2000 and September 2004, when leave was sought on his behalf to issue common law proceedings in respect of a serious injury.

8 In making that submission counsel conceded that the applicant's cause of action accrued in November 1991 for the purposes of s 5 of the Limitation of Actions Act 1958. However he submitted that her Honour had disregarded the fact that until the applicant 'accessed one of the serious injury "gateways" provided by the Transport Accident Act 1986', he did not have any actionable common law right permitting him to commence proceedings. It was said that her Honour should have taken account of the fact the applicant had no basis for his common law claim until 19 December 2008, when she found that he had suffered a serious injury to his cervical spine. Counsel for the applicant relied on a statement made by Mandie JA in Millard v State of Victoria[9] (to which I refer below) in support of that proposition.

9 Secondly, counsel submitted that it was not until the applicant's solicitor, Mr Simon, began to marshal evidence in support of the applicant's serious injury application from 2000 onwards (or alternatively not until the serious injury finding was made in December 2008) that the applicant would have been aware that he had a serious injury. It was said that a serious injury may take many years to stabilise and that in order to justify the refusal to grant an extension of time, it would have been necessary for her Honour to find that the serious injury to the applicant's cervical spine had been in existence at some earlier date and that the applicant had unreasonably failed to seek a serious injury determination from the time the injury had stabilised. In addition, counsel submitted that her Honour had wrongly had regard to the delay between November 2005, when the serious injury application was adjourned, and the hearing of that application in April 2008. The applicant could make only one serious injury application and the delay occurred in circumstances where the applicant was waiting for his left knee injury (which was ultimately held not to be a serious injury) to stabilise.

10 Finally, counsel for the applicant contended that her Honour had incorrectly considered that the serious injury application and the application for an extension of time under s 23A should have been initiated at the same time and heard in the same proceedings. It was submitted that this was not normal practice and it was in any case inappropriate, and that her Honour's incorrect view had played a part in her refusal of the extension of time application.

11 In response to the first claim of error, counsel for the respondent submitted that it was not contentious that the applicant would have been unable to pursue his common law claim until his serious injury application had succeeded. Her Honour had correctly recognised that he had only a 'potential' common law claim until that occurred and had cited Swannell v Farmer[10] and Wilson v Nattrass[11] to that effect. Accordingly, there was no error of the kind which the trial judge was found to have made in Millard.[12]

12 In response to the complaint that her Honour made no finding as to when the applicant would have recognised that he had a serious injury, counsel submitted that it had never been asserted that the effects of his cervical spine injury did not become apparent until some time after 1991. The applicant was diagnosed as suffering from serious pain when he was admitted to hospital immediately after the accident, had left the hospital wearing a cervical collar and had claimed to have been suffering from chronic pain ever since. Counsel submitted that on the hearing of the application for the extension of time, it was correctly acknowledged by senior counsel for the applicant that 'the limitation period expired on 29 November 1997', and that the Court needed to consider the totality of the delay since 1991.

13 Counsel for the respondent further submitted that her Honour had correctly recognised that it was common practice for serious injury applications and applications for extension of time to be initiated at the same time and heard in the same proceedings. Her Honour had not wrongly given weight to delay between the adjournment of the serious injury application in 2005 and its determination in 2008. Her Honour had taken account of all relevant factors, including the prejudice which the respondent would face because of the lack of medical evidence to the effect of several other incidents causative of neck pain, and psychological distress which had occurred during the delay.[13] He submitted that the order was not attended with sufficient doubt to justify its reconsideration on appeal.

14 In deciding whether the Niemann test for granting leave to appeal has been satisfied, it must be kept in mind that the order was made in the exercise of the discretion conferred on the judge by s 23A of the Limitation of Actions Act 1958, to which the principle in House v The King[14] applies.

15 As I have said, the applicant's counsel relied on Millard in support of the submission that her Honour erred in failing to take account of the legal requirement of the applicant to establish that he had suffered a serious injury.[15]

16 In Millard, counsel for the defendant conceded that the trial judge had erred in refusing an extension of time to a plaintiff who had been injured while fighting a bushfire in 1994, and had sought legal advice in 1996, but whose solicitor did not commence proceedings against the State of Victoria until November 2003. In the course of his reasons, Mandie AJA, with whom Chernov and Ashley JJA agreed, said that:

Third, the Judge appears also to have taken into account that 'from June 2001 no steps were taken by the plaintiff to extend time for bringing a common law action' and that 'the plaintiff was not prevented by any statutory requirement from bringing an application to extend the limitation period' pending the outcome of his application for a Certificate of Serious Injury or his ascertainment of whether the excavator was a registered vehicle. This too was, in my opinion, a material error because the plaintiff had no cause of action at all until he satisfied the 'gateways' requirements of either s 135A of the Accident Compensation Act 1985 or s 93 of the Transport Accident Act 1986.[16] Therefore an application to extend the limitation period would have been futile unless and until the appropriate Act was identified and its 'gateways' requirements satisfied in one way or another.[17] (emphasis added)

17 At first glance the statement of Mandie AJA provides some support for the applicant's argument. However the facts of Millard are clearly distinguishable from those which arose in this case. A serious injury application under the Accident Compensation Act 1985 had been made on behalf of Millard within the limitation period but had not been determined, because Millard's employer contended that the vehicle driven by Millard was a registered vehicle, and that the requirements of s 93 of the Transport Accident Act 1986 applied. A further delay occurred while attempts were made to find the excavator which the applicant said he was driving when he was injured and there was an investigation of the question whether that vehicle was registered. The Transport Accident Commission ultimately certified that the applicant had a serious injury and proceedings against the State of Victoria were commenced in 2003, after the limitation period had expired. The Court held that the applicant, who was illiterate, should not be held responsible for the failure of his solicitors to act promptly, albeit in circumstances of some legal complexity,[18] and that it would be just and reasonable to extend the limitation period.

18 Unlike the judge in Millard, her Honour did not fail to take account of the fact that the applicant could not commence proceedings to recover common law damages, unless it was established that he had suffered a serious injury within s 93.

19 Her Honour correctly referred to statements in Swannell[19] and Wilson[20] about the effect of s 93 of the Transport Accident Act 1986. In Swannell a man who had been injured in a transport accident died before any steps were taken to establish that he had suffered a serious injury under s 93 of the Transport Accident Act 1986. It was held that the effect of s 93 was to conditionally extinguish his putative cause of action, which therefore did not survive for the benefit of his estate. Batt and Buchanan JJA referred to Wilson in support of the conclusion that s 93:

does not extinguish existing causes of action but rather extinguishes a field of potential rights and liabilities. No longer can causes of action arise in respect of transport accidents in Victoria, unless the twin requirements are met. However, if those requirements are met, the extinguishment ceases to operate.[21]

20 Their Honours went on to say that when the relevant injuries were sustained by the claimant, all the elements of the cause of action that would spring into life if the requirements of s 93 were satisfied were present, but no damages could be recovered until there was a determination of a deceased's impairment by the Transport Accident Commission and his injury met the description of a serious injury. Accordingly it was incorrect to regard a person injured in a transport accident who had not satisfied the requirements of s 93 as having:

an incipient, undeveloped or immature cause of action. The person is barred from recovering damages for a cause of action which needs no further elements, and one which will be available to found suit once the requirements of the section are met.[22]

21 Her Honour correctly said that the applicable limitation period expired on 28 November 1997, but recognised, at a number of points in her judgment, that the applicant had only a 'potential right to claim damages' until he succeeded in his serious injury application.[23] Her Honour's reasons were primarily concerned with the delay between the accident in 1991 and the initiation of the serious injury application in 2004, although she also noted that the serious injury application was adjourned in 2005 because 'the [applicant] was awaiting further investigation and possible surgery on his knee'.[24]

22 There is no substance in the complaint that her Honour gave too much weight to the delay which occurred after 2005. Nor do I consider that her Honour was wrong in taking the view that the serious injury application and the application for extension of time could have been initiated and heard concurrently.

23 Her Honour gave careful and detailed consideration to all of the factors set out in s 23A(3) of the Limitations of Actions Act 1958, namely:

(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 has taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of a 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 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; and

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

24 In discussing the reasons for the delay, her Honour noted that:

At no stage does Mr Hayes state on affidavit that he had no knowledge of having a potential right to claim damages or compensation (or a 'common law action') for his alleged injuries from the 1991 accident. He does state that he did not know that he needed to prove a serious injury before he could make any claim for damages, and that he had never been advised, and did not know prior to consulting Mr Simon, that there was a six year limitation period for a claim for damages for his injuries. His generally unreliable memory, but also the specific indications already outlined that while he says he does not recall mentioning the 1991 incident or those injuries to the first or third firm [of solicitors whom he consulted up until 1997], it is clear that they knew of them, lead me to put little weight on his statements in that regard.[25]

25 That aspect of her Honour's reasons was informed by the view she took of the reliability of the applicant's evidence and his credibility, based on her observations of the applicant when he gave evidence at the hearing of the serious injury application. During the hearing of the application for an extension of time, counsel for the applicant conceded that the judge could rely on those credibility findings.

26 So far as s 23A(3)(d) is concerned, her Honour might perhaps have given greater weight to the various psychiatric and psychological reports. Dr Barnes, a psychiatrist, assessed the applicant in 1993 for the purposes of his crimes compensation claim, as suffering from 'a severe post traumatic anxiety neurosis with a significant depressive element and characterised by paranoid and irrational attitudes'. Dr Belinda MacDonald, who became his family GP, said that in July 2000 he was suffering from depression and diagnosed post-traumatic stress disorder. The opinion of Ms Perrett-Abrahams in December 2001 was that he was suffering from post-traumatic stress disorder with symptoms of, among other things, chronic depression and memory loss. Her Honour remarked that this would explain his failure to give instructions or make important decisions at that time but that she was not convinced that it should be regarded as explaining the entire period of the delay in commencing proceedings.

27 Her Honour also said that the report, provided by neuro-psychologist Professor Simon Crowe in September 2004, found that:

Mr Hayes performed tests at a lower level than expected for visuo-spatial memory but not verbal memory, and on working memory functions, and demonstrated significant compromise on tests of planning and other functions. He found a degree of impairment of complex integrated cerebral functions but did have the ability to carry out most activities of daily living as well as before onset of this condition, and that there was mild to moderate emotional disturbance under ordinary stress. The tests and opinions were based on some history that is subject to challenge, and noted 'some elements of less than genuine effort in some aspects of his performance on the assessment', Mr Hayes having performed in an abnormal way on one of four tests of symptom validity raising some concern about less than genuine effort, but Professor Crowe regarded that as not having a powerful influence on his presentation.[26]

28 Her Honour said that there was difficulty in using Professor Crowe's report to explain the applicant's failure to pursue his claim because it was 'almost exactly contemporaneous with the timing of the eventual issuing of the first originating motion'. Nevertheless her Honour might have taken the view that the existence of the various psychological reports between May 1993 (Dr Barnes) and September 2004 (Professor Crowe) provided a reasonable explanation for the applicant's delay in giving instructions.

29 Her Honour summarised the reasons for her conclusion as follows:

I am not satisfied that there is reasonable excuse for the plaintiff's failure to bring proceedings - or to take any steps towards reactivating his common law right by seeking a finding of 'serious injury' under any of the paths in s 93 Transport Accident Act - between December 1991 and January 2000. He was in contact with three firms of solicitors over that period. I cannot make any finding as to why they did not commence any common law proceedings, although I accept that they were acting for him primarily on his criminal offences and also applications for crimes compensation. I find the plaintiff's own evidence entirely unreliable on his disclaimer of telling them about this accident, as documents indicate the contrary, and he does not even specifically state that he did not know he might have a right to claim damages, stating only that he was not aware of the limitation period or the need to prove a 'serious injury'. Ignorance of a limitation period is not sufficient to explain his inaction over a period of more than eight years, especially as he was pursuing rights as to TAC no-fault payments for loss of earnings.

I am also not satisfied that there was reasonable excuse for the further delay between early 2000 and September 2004 when the first court proceeding was issued. While the solicitor acting was responsible for assessing how to protect his client's interests, there were times when Mr Hayes was not in touch or otherwise not giving instructions even after knowing of the limitation period having expired. I am not satisfied that he is not at least partly responsible for that further delay.

The further three years before the current application for extension of the limitation period is also in my view not reasonably explained, but of itself would not be a reason to refuse the plaintiff's application.

Taking into account all of the circumstances as outlined - and synthesizing rather than balancing their weight - I find that this is a case where there was long delay, many years of it without reasonable excuse, and where there is likely to be prejudice to the defendant at least through inability to obtain contemporaneous information as to medical treatment over many years, in the context of competing theories of causation of some of the consequences alleged to result from the relevant transport accident.[27]

30 Although her Honour might have given greater weight to the applicant's lack of knowledge of his legal rights and his mental problems, there is no basis for finding that she erred in any important respect. In the period after the 1991 accident, the applicant instructed his solicitors to recover crimes compensation and in February 1997 his then solicitors made some enquiries of the respondent relevant to a no fault claim for his transport accident. There are no affidavits from the three solicitors who acted for him prior to 2000 relating to any instructions which he may have given them.

31 I accept that the detriment to the applicant arising out of the loss of his right to seek common law damages for his back injuries was considerable but the delay in this case was a very long one. Further, her Honour did not consider that any reliance could be placed on the applicant's evidence about his lack of knowledge of his rights.

32 In my opinion, her Honour made no error in principle in reaching her conclusion and it was not so unreasonable that no reasonable judge could have come to it. For these reasons, I would refuse the application for leave to appeal.

33 I agree. I was at first attracted to the applicant's submission that the judge erred by deciding the matter without first finding that there were facts and circumstances, known to the applicant, sufficient to imply that he had inexcusably sat on his rights. But upon reflection, I accept the respondent's contention that it was not suggested below that the gravity of the applicant's injuries immediately after the accident were not apparent to him.

34 Like Neave JA, I confess to having some doubts about the judge's conclusion that the applicant's psychological deficits, drug dependence and incarceration for several years during the period of delay were not enough in aggregate to constitute a sufficient excuse to warrant an extension of time. I am also troubled by the suggestion that the delay was substantially prejudicial to the respondent. In the absence of identified error, however, I am bound to refuse leave to appeal unless persuaded that it may be doubted that a judge could reasonably conclude that the application should be refused.

35 In the result, I am not persuaded of that. I am unable to conclude that it was not reasonably open to the judge in the exercise of her discretion to come to the conclusion which she did or that it is sufficiently doubtful that she erred in that conclusion to warrant the grant of leave to appeal which is sought.

36 The order of the Court is that the application for leave to appeal is dismissed with costs.

[1] In Border Auto Wreckers (Wodonga) Pty Ltd v Strathdee [1996] VSC 55; [1997] 2 VR 49, 54, Brooking JA said that the 'reference to a judgment or order in an interlocutory application [in s 17A(4) and in s 74(2D)] is a reference to an interlocutory judgment or order'.

[3] (Unreported, Supreme Court of Victoria, Young CJ, Anderson and Brooking JJ, 15 August 1980) ('Speer').

[5] [1996] VicRp 89; [1996] 2 VR 582 ('Baker').

[6] Ibid 595-7 (Brooking JA), 602 (Hayne JA). Brooking JA held that the making of a second application in circumstances where the first was determined on the merits (rather than dismissed on a technicality) would give rise to an estoppel. Hayne JA (with whom Charles JA agreed) disagreed, holding that the making of a second application on the same material relied upon to support the first application, or material that was then available, does not give rise to an issue estoppel, but instead amounts to an abuse of process.

[7] [1999] VSCA 167, [14].

[8] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431 ('Niemann'), 433 (McInerney J with whom Gillard J agreed). The respondent's submission notes that the application is not contested by reference to the issue of substantial injustice.

[9] [2006] VSCA 29 ('Millard').

[10] [1998] VSCA 104; [1999] 1 VR 299 ('Swannell').

[11] (1999) 21 MVR 41 ('Wilson').

[12] [2006] VSCA 29.

[13] Hayes v Transport Accident Commission (Unreported, County Court of Victoria, Judge Cohen, 3 August 2009) ('Reasons'), [52].

[14] [1936] HCA 40; (1936) 55 CLR 499.

[15] [2006] VSCA 29.

[16] See Wilson (1995) 21 MVR 41, 54-6 (Ashley J), 59 (Hedigan J); Swannell [1998] VSCA 104; [1999] 1 VR 299, 306 (Batt and Buchanan JJA).

[17] [2006] VSCA 29, [33].

[19] [1998] VSCA 104; [1999] 1 VR 299.

[20] (1999) 21 MVR 41.

[21] [1998] VSCA 104; [1999] 1 VR 299, 306. Reference was made to the remarks of Ashley J and Hedigan J in Wilson (1995) 21 MVR 41.

[22] [1998] VSCA 104; [1999] 1 VR 299, 309.

[23] Reasons, [31], [34], [43], [66].