Lakic, Bogdanka v TAC [2012] VCC 1530

County Court of Victoria|2012-10-18|Before: Mr J

JUDGMENT - application for extension of time granted.

**1 The plaintiff applies for an extension of time in which to bring a common law claim for damages in respect of injuries she alleges she suffered as a result of a transport accident collision on 15 May 2000. The applicable limitation period was six years from the date of accrual of the cause of action,[1] and therefore expired on 15 May 2006.

3 On 13 July 2007, an Originating Motion was issued in this Court by the plaintiff's current solicitor, seeking an extension to the period within which an action may be brought under s23A of the Limitation of Actions Act 1958 ("the Act") and for leave to issue proceedings finding that she had suffered a "serious injury".[3]

4 On 31 January 2012, the serious injury application was heard by His Honour Judge Saccardo. On 13 February 2012, Judge Saccardo handed down a decision[4] granting the plaintiff leave to commence a proceeding claiming damages for injuries suffered by the plaintiff as a result of the transport accident which occurred on 15 May 2000.

5 The hearing of the application for extension of the limitation period pursuant to s23A of the Act was commenced before me on 10 August 2012. The application was supported by an affidavit of the plaintiff sworn 30 June 2011. The plaintiff was cross-examined. Otherwise, the evidence relied upon by the parties is contained in the Joint Court Book. Counsel for the plaintiff provided me with a chronology.

6 The Transport Accident Commission ("TAC") opposed the application for an extension of the limitation period. It relied upon two affidavits: an affidavit of Kenneth Murray Calderwood sworn 10 April 2008 and an affidavit of Antony Peter O'Brien sworn 3 July 2012.

7 In essence, the defendant relied upon delay in two respects: first, the "global delay". It is twelve years since the transport accident. The common law trial will not be heard until 2013, thirteen years since the accident. Second, the particular delay between September 2005, when the plaintiff engaged Prior & Prior, and 15 May 2006, when her claim became statute barred. In addition, the defendant submitted that the plaintiff had a possible cause of action against her former solicitors.**

**8 The Court has power under s23A of the Act to extend the limitation period if it decides that it is just and reasonable to do so,[5] having regard to all of the circumstances of the case, including the matters listed in ss23A(3). The question to be decided by the Court "requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them ... ."[6]

9 In determining an application, the Court is to apply the discretion, taking into account all relevant circumstances of the case and not simply by weighing such matters against each other:**

"Rather, the Court must synthesise 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 it is just and reasonable to extend the limitation period."[7]

10 Under s23A(3) of the Act, the Court shall have regard to all the circumstances of the case, including (without derogating from the generality of the foregoing), 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 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;

(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."

11 The most recent High Court decision in relation to an application for extension of time is that of Brisbane South Regional Health Authority v Taylor.[8] The majority in that case determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[9]

"Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.

...

Even where the cause of action relates to personal injuries,23 it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible."[10]

12 The legal principles relevant to this application which I must apply in considering the plaintiff's application can be summarised as follows:

The onus in establishing that it is just and reasonable to grant the plaintiff's application is borne by the plaintiff;[11]
If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant's evidence does not demonstrate prejudice;[12]
The competing considerations referred to in s23A of the Act are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period;[13]
The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[14]
The delay attributed to the plaintiff's legal representative must be considered;[15]
The Court can take into account prejudice -
- which comes about by reason of a lapse of time involved in that period of delay;[16] and
- which can be established by the defendant.
An inordinate delay may be taken as evidence of prejudice.[17]
The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant's potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant.[18]

13 In this case, there is the issue of the weight, if any, to be given to the cause of action which a plaintiff may possess against her solicitors by reason of the conduct of the claim. In Repco Corporation Ltd v Scardamaglia,[19] Smith J, with whom Brooking and Phillips JJ agreed, said the plaintiff cannot avoid the delay caused by her legal practitioner being considered:

"It will have been noted that, in considering Mr Scardamaglia's conduct in relation to the period of delay, I have had regard to delay which may be said to have been caused entirely by his legal representatives. Mr Scardamaglia, however, cannot avoid that delay period being considered. His legal representatives were his agents and, for the purpose of considering delay, the delay caused by them must at least be considered."

**14 Smith J also said that the availability of an alternate cause of action against a legal representative was not a matter he was prepared to consider. He was of the view that it should be reserved for a case where it could prove critical to the outcome of an application for extension of time.[20]

15 In Tsiadis v Patterson,[21] the Court of Appeal revisited this issue, and stated that a plaintiff's right to sue his former solicitors was a relevant consideration in an application for extension of time.

16 However, Buchanan JA sounded a cautionary note when he added:**

"The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor's retainer, the instructions given by the client from time to time and by the manner in which the solicitor's work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided."[22]

17 In Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[23] Forrest J said:

"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 as any added costs and the complexity of the proceeding against the former solicitor."

**18 The plaintiff was born in 1967 in Bosnia. She has poor English speaking skills, cannot read or write English and requires a Serbian interpreter. At the time of the accident, she was employed as a packer at Arnott's Business in Burwood.

19 The plaintiff said on 15 May 2000, she was travelling along Ferntree Gully Road when she swerved to avoid a motorbike and went off the road. She said she first saw the motorbike in her rear-view mirror. The motorbike went in front of her vehicle. It was travelling very fast and she thought she could have killed the rider and his passenger. Her car went off the road and hit a ditch.[24] There were two people on the bike; one had long fair hair. The motorbike left the scene of the accident and has not been identified.

20 The plaintiff's husband attended the scene of the accident. She told him what happened. Her husband took her to see Dr Brkic on the day of the accident.

21 On 24 May 2000, she completed a TAC claim form which was witnessed by Slobodan Drakulic, a solicitor, who spoke her language.

22 In cross examination, the plaintiff agreed that she did not remember much about what happened immediately after the accident as she believed she lost consciousness.

23 By June 2000, the plaintiff instructed solicitors, Tetstart Robinson. That firm submitted, on the plaintiff's behalf, a Claim for Compensation to the TAC, which was accepted by the TAC in a letter dated 8 June 2000. In July 2001, Sam Angelatos & Co took control of the matter. That firm wrote to the TAC requesting an assessment of the plaintiff's entitlements to loss of earning capacity benefits. In the following two years, the plaintiff instructed her solicitors to commence applications for review at VCAT in relation to decisions regarding loss of earnings, housekeeping services and earning capacity.

24 The plaintiff was involved in a second accident on 26 January 2002.

25 In May 2003, Hownslow & Associates commenced to act for the plaintiff.

26 In September 2005, the plaintiff consulted Prior & Prior, solicitors.[25] She signed a costs agreement with that firm.

27 When she first consulted Prior & Prior, solicitors, she was advised that time limits would apply to her claim. She said in about September 2005, she was told something about the limit, but she did not know what it meant. She said she was not concerned about the time limit because she handed the documents relating to the accident to her solicitor on time. She thought the solicitor told her that he was to hand over the application within six years. Her son acted as interpreter. She said her solicitor told her not to worry about anything because it was in his hands.[26]

28 She thought she would have seen her solicitor on approximately three occasions between September 2005 and 15 May 2006. [27]

29 On 12 September 2006, the plaintiff was involved in a third transport accident for which she submitted a claim. On 21 November 2006, Prior & Prior wrote to the TAC confirming that they acted for the plaintiff and requesting the TAC determine the degree of impairment for both accidents, being 15 May 2000 and 26 January 2002, and requested that the TAC advise as to the impairment benefits due and any serious injury certificate that may be issued.

30 On 17 January 2007, Prior & Prior made application to the TAC that the limitation period be waived. On 15 March 2007, the TAC advised Prior & Prior that it would not issue a waiver, but would not allege any additional prejudice between the six-year mark and the date of the request.

31 On 25 February 2008, the TAC informed the plaintiff, in relation to her three claims, that it had been determined that she did not have an impairment greater than 10 per cent.

32 The plaintiff was asked about inconsistencies in medical reports.[28] She was taken to a report of Dr Malios in October 2001. She was told Dr Malios had recorded that she struck a fence. She said, "[It] depends what the interpreter has interpreted. It could be a fence or a ditch." She said "fence" and "ditch" are similar words in her language.

33 She was asked about a statement in Dr Weissman's report that she was travelling in the middle lane. She said:**

"Well, I don't remember what the doctor wrote down, but this is the middle lane too on this paper here"[29]

34 The plaintiff said she knew exactly what happened, she remembers the accident. She agreed that her memory has been affected by the accident because she was dizzy all the time.[30]

35 The Originating Motion was issued just over seven years after the accident, and one year after the action became statute barred. There was a period of four-and-a-half years before the serious injury application was heard. I was not provided with any reason for the delay in hearing the serious injury application.**

**36 The Originating Motion was issued just over seven years after the accident, and one year after the action became statute barred. There was a period of four-and-a-half years before the serious injury application was heard. The plaintiff was unable to prosecute a common law action until the serious injury application had been determined.

37 Neither counsel addressed me on the reasons for the delay in hearing the serious injury application. From the Court file, the matter was originally listed for hearing on 15 April 2008. This date and several subsequent hearing dates were adjourned at the request of one or other of the parties, or by consent. On one occasion, the matter was marked "not reached" and relisted with priority.

38 I do not draw any negative inference about the delay in hearing the serious injury application. This is a managed list and the defendant could have brought the matter on earlier, had it so desired. Accordingly, I do not accept that the period from the filing of the Originating Motion until the hearing of this application forms part of the delay attributable to the plaintiff. I accept the relevant delay for the purpose of the s23A application is from 15 May 2000 until 13 July 2007, a delay of just over seven years.

39 The plaintiff said in September 2005 she was told time limits would apply to her claim and that her solicitors would deal with those matters. She said she placed her claim in the hands of her solicitors, and, apart from attending medical appointments and conferences, she was mostly unaware of the details of the conduct of her matter. She had poor English skills. Her son acted as her interpreter.

40 She did not read or write English, had to communicate through an interpreter and has no legal background or training. It was in my opinion not unreasonable for the plaintiff to rely on her solicitors. No blame can be attributed to the plaintiff.[31]

41 She deposed that after discussion with her solicitors and becoming aware that the personal injury claim was beyond the limitation period, she instructed her solicitors to proceed with the claim, and that on 13 July 2007, her solicitors issued proceedings in the County Court.

42 On the evidence before me, until September 2005, the plaintiff had three firms of solicitors acting for her. She first engaged solicitors in May 2000. The evidence is that there had been two transport accidents: the first on 15 May 2000 and the second on 26 January 2002. Claims had been made to the TAC in respect to both accidents. The solicitors were concerned with obtaining an assessment of the plaintiff's entitlements to loss of earning capacity benefits and lodging applications for review at VCAT in respect to decisions regarding loss of earnings, housekeeping services and earning capacity. An impairment assessment in relation to the May 2000 transport accident was requested. The request was acknowledged by the TAC on 29 June 2005.

43 Based on the evidence before me, I am unable to conclude whether any of the earlier firms of solicitors in fact pursued the preliminaries to a common law claim in respect to the 2000 transport accident.

44 What is clear is that a common law claim was considered by Prior & Prior, solicitors, in September 2005 given the plaintiff's evidence about time limits. Counsel for the plaintiff informed the Court that the file of Prior & Prior had been subpoenaed. That there was a notation on counsel's back sheet that the originating motion should be issued immediately. It was unclear when the notation was made, but counsel for the plaintiff thought it was before 2006 and probably before the end of the limitation period.

45 No steps were taken by the plaintiff or her solicitors to seek the provision of a serious injury certificate from the TAC and no request was made to the TAC for a waiver of the limitation period until January 2007. On 19 March 2007, the TAC indicated it would not allege any additional prejudice between the six-year mark and the date of the request. In fact, it appears little was done during that period. The solicitor did not notify the TAC that the firm was acting until six months after the expiry of the limitation period. The affidavit is silent. Counsel submitted that delay was unexplained. When the plaintiff became aware that the proceeding had not been issued, she instructed proceedings to be issued forthwith.

46 I accept that the plaintiff sought legal representation and has had legal representation almost from the beginning of the relevant period. The plaintiff consulted Prior & Prior about her claim within the limitation period. The plaintiff was told of the limitation period. She relied upon the competence of her solicitor. Her solicitor failed to issue proceedings within time. Given the plaintiff's lack of education and poor English skills, it was not unreasonable that she rely upon her solicitor.**

**47 Even if I were to accept that the delay to be considered is from the date of the accident to the date of hearing this application, I do not accept counsel for the defendants submitted the delay established significant prejudice.

48 Counsel for the defendant referred to Myer Melbourne Ltd v Hammond,[32] a delay of ten years, and Ford Motor Company (Aust) Ltd v Kulic,[33] a delay in excess of nine years. In both decisions, the Courts determined that the delay was and may be taken as evidence of prejudice in the absence of any specific prejudice. However, s23A(3) requires a consideration of whether it is just and reasonable to extend time and that involves, by ss(3), the Court having regard to all the circumstances of the case.

49 After reading the affidavits of the plaintiff, the affidavits of Kenneth Calderwood sworn 10 April 2008 and Antony O'Brien sworn 3 July 2012, I find nothing has changed despite the effluxion of a significant period of time. As to the issue of liability in the potential common law claim, the motorbike rider did not stop and the motorbike or rider have not been able to be identified. There were no witnesses to the accident. In these circumstances, I find it unlikely that the delay in bringing proceedings has caused prejudice to the defendant in defending the issue of liability in the prospective claim.

50 The defendant submitted that it was prejudiced by the delay because the plaintiff's account of the accident is unreliable and she is the only witness to the accident.

51 In support of its application, the defendant relied upon the nature of the claim; namely, that the transport accident involved the plaintiff's motor vehicle and an unidentified vehicle. In those circumstances, so far as liability is concerned, the defendant submitted that reliance will be placed upon the plaintiff's credit and reliability. There were no witnesses to the accident. The police attended the scene of the accident and completed a Police Report.

52 I do not accept this represents a prejudice to the defendant. The unreliability of the plaintiff's account of the accident will affect her own claim; the delay does not prejudice the defendant's ability to defend the claim.

53 Further, I do not accept that the plaintiff's memory was unreliable as a result of the delay. I consider the plaintiff's memory of events was good. The deficiencies in her evidence of what occurred were due to other factors. First, she gave her evidence through an interpreter. This caused some discrepancies in the precise wording she used when compared with accounts she had given previously. This was exacerbated by the fact that there were different interpreters. She said when she saw doctors her husband and son translated. In Court, she used a professional interpreter.

54 Further, the use of an interpreter created difficulties in the cross-examination process. Sometimes the questions asked created difficulties in translation and comprehension for the plaintiff. This is an issue which could have existed regardless of the effluxion of time.

55 In cross-examination, the plaintiff was asked questions about inconsistencies in medical reports as to the circumstances of the accident whether she hit a ditch or fence. The plaintiff said the words are similar in her language; it would depend upon the word used by the interpreter.

56 Second, other discrepancies in her evidence can be attributed to her possible loss of consciousness - she described her condition: "I was sort of asleep."[34] "I was very dizzy."[35] Once again, this cannot be attributed to the passage of time.

57 Accordingly, I do not accept that this is a prejudice which comes about by reason of the lapse of time involved in the delay. I am not persuaded that the defendant has demonstrated that it will be prejudiced by the delay or that an acceptably fair trial unlikely.**

The Existence of a Cause of Action against the former Solicitors

**58 I am conscious of the cautionary remarks of the Victorian Court of Appeal in relation to assessing the likely prospect of success of the plaintiff in a potential claim against Prior & Prior. In this case, there was no admission of negligence by the legal representative. The issues that may arise in a case against the former solicitors had not been investigated or pursued fully. In fact, I was told that the former solicitor's file had been subpoenaed but that parts had been blacked out. I was informed that there is a notation on the file, on the back of counsel's back sheet, that the originating motion should be issued immediately. It is not exactly clear when that comment was made, but it seems to be in 2006, and probably before the end of the limitation period. No evidence was led or submissions made on behalf of the solicitor.

59 I am not prepared to conclude that the plaintiff has a reasonable prospect of succeeding in a professional negligence claim against Prior & Prior. All I can conclude is that during the period that the plaintiff was represented by that firm, the claim became barred.

60 It would be wrong for me to conclude that Prior & Prior were potentially negligent: first, I have not been provided with a copy of the file; secondly, I do not know what advice the plaintiff sought or was given, other than what she has deposed to in her affidavit.

61 Synthesising all of the matters required to be taken into account by s23A of the Act, I formed the view that it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relies. In the ordinary course, one would expect this proceeding to come on for trial in approximately twelve months. This would result in a trial occurring thirteen to fourteen years after the events giving rise to the proceeding. While this timeframe is not ideal, experience suggests that these cases ordinarily proceed satisfactorily. There is nothing in the material in this case to suggest that it is different from other cases. The delay in this case has not prejudiced a fair trial.

62 In all the circumstances, it is just and reasonable to extend the period of limitation. I will hear the parties as to the date to which I should extend the period.

63 I will hear the parties on the question of costs.

[1] Section 5(1)(a) Limitation of Actions Act 1958 before amendment effective November 2002

[2] Wilson v Ratrass (1995) 21 MVR 41; Swannell & Anor v Farmer [1999] 1 VR 299; Millard v State of Victoria [2006] VSCA 29 at para [33]

[3] Leave for the Court sought under s93(4)(d) of the Transport Accident Act 1986

[6] Per Booking J in Bell v SPC Ltd [1988] VicRp 16; [1988] VR 123 at [125] to [126]; cited with approval by Buchanan JA and Tsiadis v Patterson [2001] 4 VR 114 at paragraph [33]

[7] See Tsiadis v Patterson [2001] 4 VR 114 at [123] per Buchanan JA paragraph [33]

[11] Bell v SPC Ltd [1989] VicRp 15; [1989] VR 170 at paragraphs [174] - [175]; Brisbane South Regional Health Authority v Taylor (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]

[12] Cowie v State Electricity Commission of Victoria [1964] VicRp 103; [1964] VR 788 at [793]; Brisbane South Regional Health Authority v Taylor (supra) at [547]

[13] Bell v SPC Ltd (supra) at [125]; Tsiadis (supra) at [123] and Delai (supra) at paragraphs [21] - [22]

[14] Koumorou v State of Victoria [1991] 2 VR 265 at [271]; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]

[15] Repco Corporation Ltd v Scardamaglia (supra) at [13]

[16] Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622

[17] Tsiadis (supra) at [123] - [124]; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South Regional Health Authority v Taylor (supra) at [551]

[18] Brisbane South Regional Health Authority v Taylor (supra) at [554] - [555]

[20] at [15] and Phillips J at [16]

[31] See Millard v State of Victoria [2006] VSCA 29 at [41] and [42]

[32] [1984] VicRp 4; [1984] VR 40. In that case, the Full Court said mere delay of itself, when inordinate, may be taken as evidence of prejudice. The Court said a delay of ten years was sufficiently demonstrable to establish significant prejudice to the defendant.

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