Murdoch v TAC [2019] VCC 1137

2 In the event that leave is granted, Mr Murdoch also seeks an order pursuant to s23A of the Limitation of Actions Act 1958 (the "Limitations Act"), that the period within which an action on the cause of action may be brought by him be extended on the basis that it is "just and reasonable" to permit him to do so.

3 Mr Murdoch relies on the impairment to the neck and/or left upper limb.

4 In order for Mr Murdoch to be able to claim common law damages for the accident, he must satisfy me that he suffered an injury the impairment of which satisfies paragraph (a) of the definition of serious injury contained in s93(17) of the TA Act.

5 For the reasons that follow, having considered all relevant factors, I have concluded that it is just and reasonable to extend the limitation period. I am also satisfied that the consequences to Mr Murdoch from the transport accident can be described as at least very considerable and thus serious. Hence, he is entitled to the grant of a serious injury certificate for pain and suffering damages. Ultimately, and whilst a number of the defendant's submissions in opposition to the plaintiff's applications were not without merit, overall I am not persuaded that because the plaintiff knowingly allowed the limitation period to expire, he should be refused the grant of an extension of time, or furthermore, that the plaintiff's credit was sufficiently undermined as to constitute a reason to refuse the leave sought.

6 The Originating Motion was issued on 20 December 2017.

7 Mr Tobin SC appeared with Mr Dunstan of counsel for the plaintiff and Mr Blanden QC appeared with Mr Bourke of counsel for the defendant. Both counsel furnished very helpful written submissions.

8 I raised with counsel whether it was the appropriate course for both applications to be heard together.[1] There is logic in considering an application to extend the limitation period first, as a refusal would render the determination of the application for a serious injury certificate nugatory. On the other hand, s23A of the Limitations Act requires the discretion reposed in the Court to be exercised when it is "just and reasonable to so do". Mr Blanden accepted that a relevant consideration to which regard may be had in determining if it is just and reasonable to extend time may include an assessment of the strength of the plaintiff's claim to have suffered a serious injury.

9 I note also that there is no apparent uniform approach to the disposition of this type of controversy in this Court, and there are decisions by trial judges that deal with the applications separately and those that do not. The conduct of the hearing by way of the hearing and determinations of both applications as part of the single hearing having been the consensus submission of counsel for the parties, I have proceeded in this manner.

10 It was also the agreed position of both counsel that, in addressing my reasons for decision, I deal first with the application to extend and, second, to express my reasons on the application for a serious injury certificate. I have adopted that course.

11 Section 23A of the Limitations Act provides as follows:

23A Personal injuries

(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.

(2) Where 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 sees fit, 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 such period as it determines.

(3) In exercising the powers conferred on it by subsection (2) a 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.

(4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding -

(a) that -

(i) in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and

(ii) in any other case more than 6 years has expired since the cause of action accrued; or

(b) that an action in respect of such personal injuries has been commenced.

(5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.

(6) Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.

12 Under s23A of the Limitations Act, I am required to consider the length and reasons for the delay on the part of the plaintiff. The length of delay under consideration is the period between the accrual of the plaintiff's cause of action and the issuing of a proceeding by way of Originating Motion in December 2017. The delay is of a significant period. Within the limitation period and the period following its expiration, events have occurred that are relevant to the plaintiff's reasons for delay, but it was not contested by Mr Tobin that the delay is substantial.

13 The test I must apply under s23A(2) of the Limitations Act is whether it is just and reasonable to extend the limitation period to enable the plaintiff to commence proceedings by way of a serious injury application. Pursuant to sub-section (3), I am required to have regard to all the circumstances of the case, including, but not limited to, those set out in sub-paragraphs (a)-(f). Therefore delay, of whatever period of time, is a factor but is not the only factor to consider.

14 The expression "just and reasonable" is one of wide import but it is clear enough on authority that it is intended to encapsulate that which the plaintiff must establish to be permitted to commence an action beyond the prescribed statutory period. It is the extent of the impact of any prejudicial factors on the fair trial of an action that is the primary focus for determining the justice and reasonableness of granting a plaintiff an extension of time. If a fair trial of the action cannot be had then an application should usually be refused. However, there is no definite prescription and each application must be determined on its own facts and circumstances having regard to the totality of the evidence.

15 The plaintiff bears the onus of establishing it is just and reasonable to extend the limitation period.

16 Mr Tobin and Mr Blanden referred to a number of authorities on matters relevant to an application to extend time where a limitation period has expired. There is an amplitude of authority from a variety of jurisdictions. The principles distilled from the cases are reasonably well-settled. In many instances they contain statements of common application and include, for example, that in determining if it is just and reasonable to extend the limitation period, it is not appropriate to balance prejudice to the plaintiff, on the one hand, with the prejudice to the defendant on the other.[2] Nor is it appropriate to compare the prejudice that would have occurred had the action been commenced by a plaintiff within time, with that which would occur at the time at which the extension of the limitation period is sought. The point being is that it is not proper to consider the application by reference to a consideration that to not grant an extension would be prejudicial to the plaintiff. However, consideration of the conduct of the plaintiff and the defendant is not irrelevant and comes into the mix as does the effect of the outcome on them both. However, under the Victorian limitation legislation, it is statutorily prescribed that a number of factors are to be synthesised in reaching a conclusion about whether the time in which to be able to commence proceedings should be extended on the basis that it is just and reasonable to do so.

17 Prejudice to a defendant is a relevant consideration. In addressing the question of any prejudice that may be suffered by a defendant in the event of the grant of an extension of time it is understood that prejudice may take many forms and it is not confined to evidence of the existence of actual prejudice. Common examples of actual prejudice that may weigh against the grant of an extension have included the unavailability of relevant witnesses, whether through death or unknown whereabouts, destruction or loss of material documents and lack of recollection of key issues due to the passage of time. It is also recognised that the passage of time is likely to make witnesses who claim to have a recollection of particular events or statements made vulnerable in cross-examination to suggestions that their recollections must inevitably be faulty.

18 The question of recollection, and the reliability of memory, and the vulnerability that a witness may be exposed to under cross-examination can, however, be a double edged sword. There may be some witnesses whose memory of events is as unreliable within a limitation period as it would be at any after the limitation period. Therefore, in the abstract, one can consider the issue as no more than this: in all probability the lengthier the delay the more vulnerable a recollection may be putting aside any vulnerability that might otherwise have prevailed within the allowable limitation period in which to have commenced an action. Of course, a plaintiff may be able to benefit, to the detriment of the defendant, from responses in cross-examination of an inability to recall details that may be adverse to the plaintiff's case, on the ground that the events occurred so long ago. McHugh J in Brisbane South Regional Health Authority v Taylor,[3] referred to a more subtle prejudice that can occur, namely a deterioration in quality of evidence that is not even recognised by the parties, and drew attention to the dictum of the United States Supreme Court in Barker v Wingo,[4] namely that what has been forgotten can rarely be shown.

19 There is a general prejudice to the justice system that can apply where despite the legislature having seen fit to impose a limitation period compliance may be thought to be largely optional in the event applications to extend are thought to be merely "procedural" or "routine" and invariably successful. It is entirely reasonable and consistent with the provision of limitation periods and the general principle of the administration of justice that individuals should be able to arrange their affairs on the basis that claims can no longer be made against them. They should not ordinarily be prejudiced by the long shadow cast by ongoing uncertainty, a consideration that is as true for public institutions such as the Transport Accident Commission ("TAC"), as it is for private individuals.

20 The plaintiff has made three affidavits. His first affidavit dated 12 November 2013 was prepared by Slater & Gordon, the second of three firms of solicitors the plaintiff has engaged. The second and third affidavits were prepared by his current solicitors, Galbally & O'Bryan. The plaintiff adopted the contents of his affidavits as true subject to minor amendments. In some parts, the plaintiff's first affidavit contained statements that were false. In final address, Mr Blanden made submissions concerning the plaintiff's lack of credibility and the effect I should give the same. He argued that they undermined both the validity of the plaintiff's expressed reasons for his delay as well as his assertion that his consequences, by way of pain and suffering, were caused by the transport accident. I will have occasion to address the plaintiff's credibility later.

21 The plaintiff was born in 1981. Upon completion of his secondary education he followed on with university studies for a short period of time. He commenced the study of music and obtained a Bachelor's Degree in the Music Industry. He has taught music at Ivanhoe Grammar School and has played in musical groups. Indeed, he developed his music playing career to include substantial international touring and recording. It is the impact on this aspect of his life that very substantially lies at the heart of the plaintiff's claim for pain and suffering consequences.

22 The transport accident occurred on 24 September 2008. The accident is straightforward and uncomplicated in its telling. The circumstances of the accident were detailed in the plaintiff's second affidavit in some detail. He described being a front seat passenger in the car driven by his friend, who lost control of it when he misjudged a corner on a dirt road and hit a tree on the plaintiff's side, whereupon the car flipped and fell down an embankment and ended up in a ditch.

23 Photos of the vehicle after the accident and exhibited to the plaintiff's affidavit show the extent of the crush occasioned to it, which appeared to be considerable. However, the plaintiff's response to the accident belies the photographic evidence. The plaintiff explained how he was able to extricate himself from the vehicle. He then helped his friend out. He said he did not think he was hurt and there were no visible indications that he was. So, once free of the vehicle, he and his friend walked back to the house at which they were staying. The next day, he drove his friend to the Wangaratta Hospital.[5] The plaintiff still did not think there was anything wrong with him, which was why he said that he felt no need to be looked over or seek any treatment. This was to change.

24 The plaintiff said that about a fortnight after the accident he developed significant pain and discomfort in his left hand and fingers but he did not connect the transport accident as the cause of his pain. Indeed, the evidence was to the effect that it was not until after April 2009 that the plaintiff made a connection between his pain and the transport accident.

The lengthy course of the plaintiff's medical treatment

25 These reasons do not purport to exhaustively address the significant treatments the plaintiff has undergone, both in Australia and in Europe, in an effort to address his pain. Of course the fact that the plaintiff has undergone treatments is not itself evidence that the cause of his pain and limitations is the September 2008 accident. The defendant contested causation and argued that the plaintiff had failed to make out this necessary element.[6] Whilst there has been, and remains, some uncertainty and imprecision by expertly qualified physicians in Australia and Europe of the cause of the plaintiff's neck and muscle wasting, I am, however, satisfied by the preponderance of the evidence that the plaintiff suffered injury as a result of the transport accident. I will more fully explain my reasons for this conclusion later when separately addressing the question of causation.

26 I have mentioned that the plaintiff sought no medical treatment in the immediate aftermath of the accident. The first connection between the plaintiff's presentation and the car accident was suggested to him by Ms Karen Fitt, a hand therapist, whom the plaintiff commenced attending for treatment to his left hand. Apparently, after several months of treatment by Ms Fitt, but with only minimal improvement, she implicated his symptoms to his neck which in turn she thought likely attributable to the car accident. Ms Fitt referred the plaintiff to a specialist musculoskeletal physiotherapist.

27 The plaintiff underwent nerve conduction studies in July 2009. In September 2009, on referral from his general practitioner, Dr Ian Sharrock, he was seen by a rheumatologist, Mr Simon Lam.

28 The plaintiff also obtained acupuncture treatment, chiropractic treatment and laser acupuncture in 2009 or 2010.

29 In September 2009, the plaintiff was experiencing neck and shoulder pain, and left hand pain that affected the fourth and fifth fingers, together with altered sensation to his left forearm. He commenced physiotherapy with Dr Jenny Hynes. He said his condition made it difficult and uncomfortable for him to teach guitar at Ivanhoe Grammar and to use his hand for general daily tasks. He explained that his physiotherapist thought his presentation to be from injury sustained to his neck and first rib in the car accident the previous September.

30 The plaintiff lodged a TAC claim on 17 September 2009. The TAC accepted liability for the claim in October 2009.

31 From early 2010 to September 2010, the plaintiff continued to undertake physiotherapy treatment. He had his left shoulder taped. He commenced to wear a shoulder brace regularly from the middle of 2010 so as to improve his posture and to relieve pressure to the left side of his neck and arm and hand.

32 In September 2010, the plaintiff moved to Vienna. He married his Austrian born partner, and Vienna became his principal place of residence until October 2014, when they moved to Berlin.

33 In the course of his life in Vienna, the plaintiff said that he suffered ongoing problems with his neck, left arm and hand. Physiotherapy treatment, which he continued in Vienna, was paid for by his health insurer, TAC's obligations not extending extra-territorially.

34 In July 2011, in Vienna, the plaintiff came under the attention of Dr Becker, an orthopaedic surgeon, who recommended further physiotherapy and chiropractic treatment. The plaintiff said this did not help. He continued to experience numbness, pain and weakness to his left hand, arm and left sided neck pain which he said made the playing of the guitar difficult, as well as day to day tasks. He returned to see Dr Becker in early 2012. An MRI of the cervical spine scan occurred which the plaintiff understood showed a C6 prolapse, and a small prolapse at C7. He said that a nerve conduction study from 12 April 2012 showed no abnormality.

35 On 23 April 2012, the plaintiff had a cervical neuroplasty (that is, C6 decompression surgery) performed by Dr Becker. He said he was free of neck pain for only two to three days and that, although his left hand felt a little better for a short time, the symptoms returned soon enough. Dr Becker organised further diagnostic imaging.

36 The plaintiff said he reached a stage where he could no longer afford treatment and he was compelled to cease seeing Dr Becker, but he managed to keep up his physiotherapy and chiropractic treatment two to three times per week.

37 On 2 October 2013, the plaintiff saw Dr Franczak, a vascular surgeon in Vienna, for a further opinion about the pain and altered sensation which was affecting his left hand and fingers. An ultrasound and other investigations were arranged which the plaintiff understood tested positive for an arterial block left side. Dr Franczak suggested surgery to remove the first rib, but the plaintiff said that cost of the surgery proved prohibitive.

38 On 22 October 2013, the plaintiff saw Dr Peter Ledwon, a neurologist in Vienna, who diagnosed thoracic outlet syndrome and suggested investigations into the brachial plexus.

39 Sometime around September/October 2014, the plaintiff moved permanently to Berlin. He saw Dr Peter Dollinger, a vascular surgeon, to whom he provided his medical records, including the recommendation from Dr Franczak, that he undergo surgical removal of the first rib. The plaintiff said Dr Dollinger undertook a series of tests which he understood confirmed left thoracic outlet syndrome. Again surgery was recommended.

40 On 21 January 2015, Dr Dollinger performed a transaxillary disarticulation of the first left rib for the thoracic outlet syndrome. The plaintiff said that numbness and weakness to his left hand seemed worse following the surgery and it became even more difficult for him to play the guitar or to undertake left-handed activities requiring grip strength or fine motor function.

41 On 15 March 2015, Dr Dollinger arranged a rib x-ray and, on 10 June 2015, he sent the plaintiff to a neurologist, Dr Roland Nohr, for nerve conduction studies.

42 On 5 July 2015, the plaintiff again saw Dr Dollinger and he underwent another ultrasound of his rib area. The plaintiff said he did not experience improvements to his hand symptoms.

43 On 10 August 2015, the plaintiff said he had a further EMG nerve conduction test with Dr Nohr.

44 By December 2015, the plaintiff said he commenced to notice that his left arm muscles had shrunk to about half the size of those of his right arm. Dr Dollinger, referred him to Dr Hammerson, a neurosurgeon in Berlin, who conducted a further EMG nerve conduction study. An MRI of the left elbow was taken and surgery was recommended.

45 On 28 December 2015, the plaintiff had ulnar nerve decompression surgery performed by Dr Hammerson, but he said it made no difference to his symptoms.

46 On 18 February 2016, he saw Dr Nohr for a further EMG nerve study, which he believed proved worse than the previous nerve study, and that Dr Nohr also ordered an MRI of the neck, elbow and vertical MRI thoracic.

47 On 23 February 2016, the plaintiff saw Dr Eberling in Berlin, but a diagnosis remained elusive. On 24 February 2016, he had a further ultrasound of the left elbow.

48 On 2 March 2016, he saw a peripheral nerve surgeon, who referred him to yet another doctor for a further opinion. On 18 March 2016, he had another EMG and ultrasound.

49 The plaintiff said at this stage the tenor of the medical advice he was receiving was essentially that he needed to wait to see if he improved.

50 On 30 June 2016, he returned to see Dr Hammerson because he thought that his left arm muscle wasting was getting worse. He was then sent to see Dr Boehm for an ultrasound. The plaintiff said he understood that there was a suspected compression of the brachial plexus, but that the ultrasound proved indeterminate.

51 Between October and December 2016, the plaintiff was on tour and played approximately 20 venues, but he said that playing and touring became harder because of his symptoms and, by the conclusion of the tour, in December 2016, he was "struggling".

52 On return to Melbourne, and on referral from Dr Sharrock, he saw a neurologist, Dr Bhaskar, who arranged injections and investigations including nerve block injections at C6 and C8, MRIs of the neck brachial plexus, and another nerve conduction study.

53 The plaintiff said he understood from Dr Bhaskar that the cause of muscle wasting and of his hand/arm numbness remained uncertain despite investigations. Once again he was being counselled to wait and see, and after some six months or so, was advised to return for further tests and injections. The plaintiff thought that disc replacement surgery was discussed as a possible solution to his neck pain.

54 The plaintiff returned to Berlin in about late December 2016 or early January 2017 and saw Dr Dollinger who, in March 2017, organised further C6 and C8 nerve block injections. Once more, although he obtained complete pain relief, it proved transitory and, after a short number of weeks, the pain gradually returned.

55 The plaintiff said that in July and August 2017, he noticed increasing muscular wastage affecting his left forearm and hand. He attended another neurologist in Berlin, Dr Petross Agonostou, for an opinion. Dr Agonostou arranged another round of investigations, including an MRI of the neck and several EMG nerve conduction tests. He proposed C6 and C7 disc replacement surgery.

56 In August 2017, the plaintiff returned to see Dr Hammerson, who also recommended disc replacement surgery and who thought it would have a good chance of relieving his neck pain (which the plaintiff described by this time as being severe), but that she did not believe would make any difference to his left arm and hand muscle wasting weakness or numbness. The plaintiff said he was not happy with such a prognosis because he wanted his arm and hand "fixed" so he could resume performing and touring.

57 In August 2017, Dr Bhaskar arranged a variety of further investigations, at the conclusion of which, he suggested disc replacement surgery as the plaintiff's best option for relieving some of his severe neck and referred pain. He also told the plaintiff that the surgery would address his left arm/hand muscle wasting and altered sensation.

58 The plaintiff said he returned to see his general practitioner, Dr Sharrock, who referred him to Dr Aliashkevich, a neurosurgeon, whom he first saw on 31 August 2017. An MRI of his neck revealed severe foraminal stenosis on the left side C5-6, C6-7 and C7-T1. Dr Aliashkevich recommended surgery by way of a left decompressive surgery and foraminotomies at C6-C7 and C8. The plaintiff understood that the surgery was unlikely to do much for his neck and referred pain, but that it might help reduce left arm symptoms and prevent further muscle wastage. The surgery was performed on 2 September 2017. The plaintiff said that he had some minor improved sensation to the outer side of his fifth finger, but after about a month the numbness and altered sensation returned as previously.

59 Following the 2017 surgery, the plaintiff described the onset of new symptoms, being the altered sensation of numbness, affecting the left side of his neck and portions of his shoulder blades. His surgeon explained this was an accepted side effect of the surgery and that sensation should gradually return. However, the plaintiff said that to date this has not occurred and he began to experience pins and needles from the back of his neck down to his left shoulder blade.

60 The plaintiff returned to Berlin in October 2017, and was confined to bed for 10 days and was hospitalised for two weeks due to an unrelated infection.

61 In November 2017, the plaintiff thought he had experienced further muscle wasting to his left forearm and hand. Dr Aliashkevich's advice was for him to undergo a further MRI of the cervical spine, brachial plexus and nerve conduction studies. The plaintiff said that he then commenced to experience episodes of uncontrolled hand spasms and cramps. He said his neck and referred pain was constant and severe.

62 The plaintiff said that he continued to search for treatment options in Europe and, in December 2017, in Greece he saw Dr Athanasiou, neurosurgeon, who recommended urgent disc replacement surgery at C5-6 and C6-7. Later in December 2017, he saw Dr Sabarini in Berlin, who recommended surgery by way of disc replacement surgery at C5-C6 and C6-7.

63 On 10 January 2018, the plaintiff saw Professor Vajkoczy in Berlin and was referred for a brachial plexus ultrasound with Dr Bohm and an EMG nerve study.

64 On 22 January 2018, Professor Vajkoczy recommended brachial plexus decompression surgery and it was performed on 16 February 2018, but the plaintiff reported no change in his symptoms. He said his neck pain has become increasingly unbearable and he described the numbness in his left hand as being worse than before. He said he was last reviewed by Professor Vajkoczy on 24 April 2018, who told him that he remains uncertain as to whether the nerve damage affecting his left arm and hand can be reversed on the basis that his injury is chronic and the compression has been present for too long.

65 The plaintiff returned to Australia in early May 2018 to attend medical examinations arranged by his lawyers and by TAC for his serious injury application.

66 On 28 May 2018, the plaintiff had another C6 nerve block for his neck. He returned to Berlin in late May 2018, and since then has undergone further scans and ultrasound and EMG studies. In September 2018, he had a ventral decompression at C5-C7 with implantation of an artificial disc prosthesis at C5-6 and a cage implant at C6-7. He has had nerve root injections at the C6, C7 and C8 level.

The defendant's submissions on the effect of the plaintiff's medical treatment and the expiration of the limitation period

67 The defendant submitted that by the date of the plaintiff's serious injury application he had undergone a major operation on his cervical spine as well as having further surgery recommended by Dr Franczak. So far as the plaintiff's probable thoracic outlet syndrome was concerned, Mr Doig understood that the plaintiff intended to undertake treatment in Vienna. The defendant submitted, therefore, that by the time of the plaintiff's application to TAC and its rejection, the only matter that was inhibiting him in progressing the application for a serious injury certificate by way of an Originating Motion was his credit, the extent of which only he knew ,and that I should be satisfied he appreciated would render success in the Court less than "borderline," this being the word used to describe the plaintiff's prospects of success by Slater & Gordon. The defendant developed its primary submission by examination of the legal advice the plaintiff had received and by reference to facts known to the plaintiff but not disclosed to Slater & Gordon and consequently to TAC. Hence the defendant submitted the plaintiff's decision not to proceed any further was informed and voluntary.

68 The defendant characterised the pessimistic character of the legal advice given to the plaintiff by Slater & Gordon as understandable in light of the circumstances revealed to them at the time. The defendant submitted that the advice provided the plaintiff with a clear choice and that he understood the consequences of the choice he made to not proceed with his serious injury application. The plaintiff knew that he could continue on with his claim or he could discontinue it. He knew when his common law time limit would expire, and he understood that he could not issue an Originating Motion to pursue a common law proceeding after that date, other than in limited circumstances. Therefore, the defendant argued, the plaintiff made a conscious and informed decision not to proceed with a serious injury application. In addition, not only did the plaintiff have exhaustive advice from his solicitors about the options available to him and the consequences of electing to proceed or not, but he had knowledge of facts unknown to his solicitors which, on an objective analysis, could only have further weakened the prospects of success with a serious injury application, had he pressed on.

69 The defendant also contended that despite the plaintiff's subsequent affidavit material deposing that he continued to struggle with performing and touring from after July to September 2014, he did not revert to his solicitors during that period about commencing an application.

The plaintiff's medical treatment subsequent to expiry of the limitation period

70 In the period following the expiration of the limitation period, and prior to issuing the Originating Motion, the plaintiff underwent three surgeries. The operation of 21 January 2015 had been recommended by Dr Franczak in October 2013, approximately one year prior to expiry of the limitation period. The plaintiff had ulnar nerve decompression surgery on 28 December 2015. The major surgery the plaintiff underwent after the expiry of the limitation period was the left cervical decompression surgery and foraminotomies at C6-8 performed on 2 September 2017.

The engagement in the legal process by the plaintiff within the limitation period

71 The plaintiff initially retained Maurice Blackburn Lawyers to act on his behalf in approximately November 2009, following the suggestion of his sister, who is a lawyer.[7] The plaintiff retained Maurice Blackburn for almost three years.

72 The plaintiff apparently became dissatisfied with Maurice Blackburn and then retained Slater & Gordon Lawyers in June 2012, following a further suggestion of his sister.

73 The plaintiff received advice from Slater & Gordon verbally and in writing. He was advised of possible common law entitlements during his initial meeting with that firm in June 2012. Slater & Gordon took steps to pursue a remedy for the plaintiff and, as part of this process, the plaintiff attended his first medico-legal examination with Mr Stephen Doig, orthopaedic surgeon, on or about 7 January 2013.

74 Slater & Gordon made a serious injury application to the TAC for the plaintiff. The plaintiff swore an affidavit in support of his serious injury application on 12 November 2013. He affirmed that the contents of his affidavit were true and correct. However, the affidavit made no reference to his band, the "Damian Murdoch Trio" in which he performed, nor did it depose to his ongoing performing, writing and recording of music or that his band had released an album.

75 Mr Blanden argued that the plaintiff had consciously and deliberately portrayed himself in his affidavit as a person whose career and his passions of music and studio work had come to an end as a result of the transport accident injuries. Mr Blanden directly challenged the plaintiff by suggesting to him that his evidence in his November 2013 affidavit was a "bit of a lie"[8] and "a lie"[9], to which the plaintiff responded, "Ah, in hindsight, reading it, yeah".[10] The plaintiff acknowledged in cross-examination that in March and April 2014 he toured Europe, the USA and Canada performing some 37 shows and a dozen or so more on the return leg via Europe, and that between July and September 2014, he performed a further 15 or 20 shows in Germany, England, Ireland and Scotland.[11] Touring and performing continued with a subsequent band, "The Ocean" in 2015, including to France in early 2016 and South America and Australia in late 2016, which belied the impression conveyed by his serious injury affidavit.

76 In conference with Slater & Gordon on 21 January 2014, Susan Accary, solicitor, advised the plaintiff that the TAC had refused his serious injury application because it had obtained access to You Tube clips and other social media forums showing the plaintiff performing with a guitar.

77 The plaintiff further conferred with Betty Alexopoulos of Slater & Gordon by telephone on 29 or 30 January 2014, and by way of telephone with Ms Accary on 19 May 2014.

78 On 10 September 2014, Slater & Gordon wrote to the plaintiff confirming the substance of the discussions with him on 19 May 2014.

79 Therefore, by 10 September 2014, the plaintiff had participated in a number of discussions with his solicitors about the limitation period, as well as having received written advice. The advice to the plaintiff about a prospective Originating Motion was that its prospect of success was "borderline".

80 Slater & Gordon's assessment was at least in part based on the fact of the enquiries TAC had made of the plaintiff's performances and, therefore, they assessed those facts as undermining his ability to make good a claim that his music career had finished in light of his participation in the Damian Murdoch Trio.

81 However, the defendant also pointed out that there were additional matters of credit that would have further undermined the plaintiff's prospects of success of a serious injury application. The defendant characterised the plaintiff as engaged in "deceitful behaviour", because, for example, rather than his income being confined to cloakroom work and part-time music instruction of children, as deposed to by him in his serious injury affidavit, he had continued to earn income from performing, including having released a commercial album.

82 Another matter of credit the defendant referred to was that, at the time of Slater & Gordon's discussions with the plaintiff in January 2014, it was unaware that in December 2013, the plaintiff had joined the The Ocean, following a successful audition, and had given up his other work in order to tour with them and play as a full-time guitarist.

83 The defendant submitted that I should be satisfied that the plaintiff having become aware that the TAC had previously conducted internet searches disclosing his performances with the Damian Murdoch Trio, understood that if he pursued his serious injury application by way of originating motion, his position with The Ocean would also come to light and further diminish his prospects of success. The plaintiff having not told Slater & Gordon about his participation in The Ocean, they were unable to provide advice to him about the potential implications of it, but because it had already told him that his application was borderline, it was reasonable to suppose that because of the further undisclosed activities with The Ocean, they would have assessed his prospects of success as even less than "borderline".

84 The plaintiff said that he discussed Slater & Gordon's advice with his sister and he agreed with Mr Blanden that, based on the information in Slater & Gordon's possession at the time of its advice to him, but that only embraced the fact of his playing with the Damian Murdoch Trio, which TAC had referred to in its rejection letter, any application would have been hopeless. He said in answer to Mr Blanden:

"When was it that you received advice from Slater & Gordon in respect of your serious injury; what advice was it that you discussed with your sister?

- Well, she didn't give me advice per se. It was just when I was presented with the pictures we just sort of said well, there is nothing really we can do. Like, that's it. So it wasn't advice, it was clear. I already knew that it was clear".[12]

85 Regarding the plaintiff's lack of candour and disclosure, the defendant noted that Slater & Gordon had obtained further medico-legal reports from Dr Serry, psychiatrist, and from Mr Doig. However, the plaintiff maintained an inaccurate history to them by omitting to advise them of his developing musical pursuits with the result, Mr Blanden submitted, that the worth of their opinions in support of any application for a serious injury certificate would have been compromised.

86 Mr. Tobin did not contend that the plaintiff had made anything other than a deliberate decision to permit the statutory limitation period to expire. I cannot see how it would have been possible to argue otherwise based on the evidence. On the question of deliberateness, I think a deliberate decision to allow a known limitation period to expire is a matter of some considerable significance in the overall consideration of matters, and it has been recognized as such. For example, in Itek Graphics Ltd v Elliott,[13] Ipp AJA said:

"A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson.

In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at nought the purpose of the legislation."

87 The decision in Itek[14] is not entirely analogous because it concerned an extension of time under s151D(2) of the New South Wales Workers Compensation Act (1987). That legislation, unlike s23A of the Limitations Act, did not contain an inclusive list of factors to be considered whereas, in the Victorian context, a deliberate decision to allow a limitation period to expire is a factor falling within s23A(3)(a) to consider in synthesizing the competing considerations. There is no requirement in Victoria for an applicant to establish the existence of special circumstances. However, and despite the difference in legislation, a deliberate decision may, in the overall consideration of matters, be a powerful factor that militates against it being regarded as "just and reasonable" to extend time. There is ample authority that deliberateness is a consideration in such applications. I accept that in this application the plaintiff's deliberateness is a factor that operates unfavorably against the grant of an extension of time.

88 Mr Tobin submitted that the plaintiff, in giving instructions to his solicitors in April 2014 not to proceed with a serious injury application, acted reasonably by relying upon the legal advice he had received. In other words, Mr Tobin argued that the plaintiff's deliberate decision was reasonable. He submitted that, irrespective of any additional adverse evidence, including the plaintiff having obtained the guitarist position with The Ocean, Slater & Gordon had already assessed his prospects of success as "borderline", and that if he persevered, he was at risk of significant costs, and that his solicitors would not be prepared to act further on a no win/no fee basis.[15] Mr Tobin sought to buttress his submission that the plaintiff's response to the advice from Slater & Gordon was reasonable because:

(i) upon the material that was contained in the plaintiff's serious injury affidavit of November 2013, the TAC had denied his application for serious injury;

(ii) between the time of swearing his serious injury affidavit in November 2013, and the time of making his decision not to proceed, the plaintiff's prospects had improved and the consequences to him from the injury sustained in the transport accident were less impactful on him. Moreover, in December 2013, having secured the position with The Ocean, he was coping with playing and touring despite his evidence of suffering from significant symptoms.

89 Mr Tobin accepted that the plaintiff's affidavit of November 2013 was unsatisfactory. He argued nonetheless that the additional evidence concerning the plaintiff were facts that the Court would have become aware of in any event had a serious injury application been brought within time, whether by way a proper affidavit from the plaintiff or from material adduced by the TAC. Therefore, there was no forensic advantage to be gained by the plaintiff from any omissions or exaggerations on his part.

90 Mr Tobin also submitted that the ongoing delay by the plaintiff in not bringing the application within the time limit can be viewed as justified. After Apri1 2014, the plaintiff sought treatment and underwent surgery. It was not until late 2016, that it was clear that he had a serious injury by reason of the consequences to him being unable to any longer play professionally.

91 Mr Blanden disputed Mr Tobin's submission that, based on his actual claimed injury, the plaintiff's prospects had changed. He also contested the submission that it was not until late 2016, when he was unable to play professionally, that it was clear to the plaintiff that he suffered from a serious injury by way of very considerable consequences. Mr Blanden argued that the plaintiff's characterisation was unsupported by evidence, and that I should prefer the evidence that the principal reason for the plaintiff's delay was his positive decision not to bring a proceeding within the limitation period as a result of legal advice that he received. Under cross-examination by Mr Blanden, the plaintiff accepted that he did not commence a proceeding because of the legal advice concerning his prospects of success. However, I am not persuaded that the plaintiff's answer should be treated as determinative on the matter. It does not necessarily gainsay the fact of the plaintiff's injury progressively having wrought consequences to him that were increasingly serious in the period following the provision of the legal advice and the expiration of the limitation period and when judged in the context of the development of the plaintiff's understanding of his physical condition gleaned from the considerable and extensive medical treatment he underwent over a lengthy period of time.

92 First, I am satisfied that there were no external factors operating that disadvantaged the plaintiff from pursuing an application within the limitation period. By external factors, I mean that the plaintiff was not subject to any disadvantages by either ignorance of his rights or poor legal representation. His solicitors appear to have properly advised him. He was aware that if he did not take action his common law rights would be extinguished with only a limited ability to pursue a right to commence an action in the future if the limitation period expired.

93 Second, I am satisfied that the plaintiff made a considered election not to pursue his common law entitlement within the limitation period.

94 Third, I am satisfied that, by late 2016, the consequences of the plaintiff's injury from the transport accident had become very considerable. I am satisfied that the effects on the plaintiff throughout the limitation period and after its expiration was not constant or uniform in its effects on his life or his career.

95 I am satisfied that the plaintiff has provided acceptable reasons for his delay.

The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant s23A(3)(b)

96 Mr Blanden did not point to the existence of actual prejudice the defendant would suffer as a result of the grant of an extension. I accept that, as a result of my decision, the defendant has lost the benefit of the limitation period in circumstances in which the only fault is the delay attributable directly to the plaintiff.

97 Mr Blanden identified what the defendant characterised as "most important evidence", namely the histories obtained from the plaintiff and the memories and observations of medical practitioners and work colleagues at Ivanhoe Grammar during the 12 month period following the transport accident. I accept the logic of that observation. However, the defendant could not point to the absence or unavailability of any relevant witnesses. Moreover, as this hearing has demonstrated, there is a plethora of medical histories and of presentations by the plaintiff to doctors and therapists which calls into question the extent of prejudice likely to be occasioned to the defendant in the event of an inability to adduce direct viva voce evidence of facts in issue at any trial subsequent to this grant of leave. Whilst memories inevitably fade and, therefore, a risk of some detriment to the defendant is not fanciful, on the available evidence and on balance, I am not satisfied that it is a sufficiently appreciable risk such as to contradict the grant of the relief sought by the plaintiff by reason of it being just and reasonable to do so.

98 I agree with Mr Tobin that the nature and extent of the plaintiff's injuries have been monitored by the defendant so far as his treatment has been concerned, since 2009. Payment of all of his expenses incurred in Australia has been met, including obtaining medical reports in 2009 and further material put before the TAC in 2014, that informed its opinion as to an impairment entitlement. The defendant has been far from unawares of the plaintiff's status.

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 s23A(3)(a)(c)

99 This criteria is not a relevant consideration to the plaintiff's application because there is no debate that he had access to all facts which were, or might be, relevant to a cause of action, and that he made an informed decision not to pursue his cause of action within the allowable limitation period. There is no conduct on the part of the defendant that falls to be considered under this consideration.

The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action s23A(3)(a)(d)

100 The parties agreed that this criteria is not relevant to a consideration and determination of the plaintiff's application. I accept that is the case.

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 s23A(a)(e)

101 Mr Tobin submitted that the sub-paragraph is relevant to a Herschberg & Anor v Mula situation.[16] That case concerned a plaintiff in circumstances where an implant was discovered within her body many years after her knowledge of it being a possibility and the sub-paragraph was a more apt consideration under s5(1A) of the Limitations Act. There are a number of points of relevant distinction about Herschberg to the facts here disclosed, including the question, whether in that case the plaintiff's claim was one in respect of personal injuries consisting of a disease or disorder contracted by her. Mr Blanden did not agree that the sub-paragraph was a more apt consideration in a Herschberg type scenario. He submitted that the plaintiff had knowledge from September 2009, when advised by his medical practitioners, as to the association between the injury and the transport accident. I agree with Mr Blanden's submission.

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

102 I have already canvassed the facts that embrace this relevant criteria. It is sufficient to note that the plaintiff had engaged first with Maurice Blackburn. The extent of advice he received from that firm is not known. He then engaged Slater & Gordon. The extent of the very detailed advice he received from that firm is, by comparison, known and has been extensively canvassed. The plaintiff detailed the nature of the advice that he received, including exhibiting letters of the advice.[17] Mr Tobin has submitted that the plaintiff took the appropriate steps to obtain the advice, that the advice he received in April 2014 was that he had a borderline case, that he was at risk of substantial costs, and that solicitors would not act for him on a "no win/no fee" basis. Hence, the plaintiff acted reasonably in not pursuing his serious injury application at that time.

103 Mr Blanden, however, argued that the nature of the advice the plaintiff received was that his application was problematic because of the evidence that the TAC had identified of his omissions and that were therefore regarded as reducing the prospects of his success and that having taken up with The Ocean, the plaintiff's decision not to proceed was a fully informed one on his part.

104 In the preceding paragraphs I have pointed to a number of considerations which, if the test I was required to apply under the Limitations Act was confined to a single consideration, may have led to an adverse outcome for the plaintiff. However, that is not the test. Despite the very strong submissions made by Mr. Blanden, having regard to the factors set out in the provision, I am satisfied that the absence of actual prejudice to the defendant, when assessed against the serious consequences to the plaintiff in the event his application is refused, renders his application for an extension of time one in which it just and reasonable to do so. All of the circumstances of the case have come into the mix in my decision, as reflected by the forgoing reasons, as well as the seriousness to the plaintiff of the consequences that have been caused by the transport accident. Ultimately the absence of prejudice is a substantial consideration.

105 Despite the defendant's submission to the contrary, I am satisfied, for the reasons that follow, that the plaintiff has discharged the requirement to establish a necessary causal link between his injury and the transport accident.

106 As a general statement, a person is entitled to compensation under the TA Act if they are injured as a result of a transport accident. In this case, the TAC accepted the plaintiff's claim and made payments for treatments and surgeries. That conduct, however, does not constitute an admission in law of causation. In Transport Accident Commission v Florrimell,[18] the Court of Appeal qualified the views expressed in the decision of Ashley JA in Ansett v Taylor[19] concerning the weight to be accorded to the acceptance by an authority of a claim for statutory benefits in a subsequent common law proceeding. Tate JA, with whom Hansen AJA agreed, observed at [45]:

"The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed."

107 Mr Blanden submitted that I should not be satisfied that the plaintiff has established, on the balance of probabilities, that the cause of his injury was the transport accident. Mr Blanden's submission was based on matters of medicine as well as the plaintiff's credit. He developed his submissions by reference to the following facts.

108 The plaintiff's transport accident occurred on 24 September 2008. He was able to extricate himself from the vehicle and help the driver out. He did not think that he was hurt and he and the driver walked back to the house at which they had been staying without the need to seek medical attention. The plaintiff drove his friend to the Wangaratta Hospital the next day, but he still did not think that he was hurt. I form no opinion adverse to the plaintiff due to the absence of evidence of him having experienced the onset of an evident injury in the immediate aftermath of the accident.

109 Although the plaintiff received physical therapy treatment from Ms Lucas, a myotherapist, during the latter part of 2008, there was no report from her produced by the plaintiff. It was not suggested in the plaintiff's evidence that Ms Lucas suggested a connection between the plaintiff's presentation and the accident, and I am not troubled by the absence of a report from the plaintiff's myotherapist on the question of causation.

110 The plaintiff first saw Dr Sharrock on 21 January 2009, but did not mention the accident to him. Dr Sharrock noted an initial thought that the soreness the plaintiff presented with in the web space of his hand and fingers was due to too much guitar work. I do not regard the absence of the plaintiff having mentioned the transport accident as overly peculiar. The plaintiff said in answer to Mr Blanden that he did not, at that time, associate his pain with the transport accident[20] and, therefore, the reference to guitar work by Dr Sharrock is explicable in the absence of any other expressed association by way or incident and trauma.

111 The plaintiff was referred to Mr Anthony Berger, hand surgeon, in March 2009, and did not say anything to him about the accident. Mr Berger's 'New Patient' information form contained a place for reference to transport accident information if applicable, but the section was not invoked. I accept the plaintiff could not explain why this had been the case.

112 The plaintiff saw Ms Karen Fitt, hand physiotherapist, initially on 6 April 2009, and continued to see her for several months without any link being made to the transport accident.

113 Clinical notes from 1 July 2009, indicate that the plaintiff saw Dr Peppard, a neurologist, who recommended that he see Dr Valerie Tay for nerve conduction studies, which he did, but there is no report from Dr Peppard. I am disinclined to draw an adverse finding from the absence of such a report.

114 It seems that the plaintiff's first mention of his transport accident was to Dr Sharrock on 31 July 2009. Dr Sharrock referred the plaintiff to Dr Simon Lam, consultant physician and rheumatologist, in July 2009. Dr Sharrock's letter of referral to Dr Lam dated 31 July 2009, referred to a seven month history of pain in the plaintiff's left hand, that is, commencing at Christmas, some months after the September 2008 accident. Dr Lam's report dated 7 August 2009, also contained the following history obtained from the plaintiff:

" Of note, he started feeling left sided hand pain in the region between his little and ring finger for a period of 2 weeks or so around the time of the accident. He cannot recall with any certainty whether this occurred before or after his motor vehicle accident. Fortunately, the symptoms settled."[21]

"In December 2008, Damian had a break from his usual employment as a music teacher and had started recording professionally for a week or so when the symptoms in his left hand recurred."[22]

116 Ms Hynes, physiotherapist, drew drawn a link between the plaintiff's transport accident and his symptoms. In her report she said that she had seen the plaintiff on referral in September 2009 from his treating hand therapist and that he had presented with:

"a 12 month history of severe and debilitating deep seeded left hand pain between the 4__th and 5th digits, forearm and ulnar border ulnar border of the hand pins and needles with associated with sensitivity to palpation of the ulnar nerve at the elbow. These symptoms were having a dramatic· effect on Damian's ability to continue to work as a professional guitarist, both in a performing and teaching capacity. When I reviewed Damian in my rooms, he had been unable to perform for the past 12 months."[23]

117 She went on to report under the heading of "Main Clinical Findings":

"Damian had been involved in a significant MVA in September 2008, just weeks prior to developing his hand symptoms

From the description of impact Damian would have experienced a marked shunt into right cervical side-bending and rotation, resulting in a significant traction effect on the lower part of the brachial plexus

Neurodynamic testing of his left upper limb revealed sensitivity along both the median (1) and ulnar tests

There was restriction to Cx rotation and side bending

Marked tenderness and stiffness was apparent to palpation of the lower cervical facets and ribs 1 and 2

Shearing of the 4th knuckle reproduced his pain

Poor dynamic control of the scapula was apparent under load

His posture while playing guitar was also assessed

Mobilisation of the lower cervical spine and rib 1 on the left had an immediate effect over a number of areas

There was an immediate improvement to the neurodynamic sensitivity on retesting, but most importantly there was an immediate change in the time he could play his guitar before the onset of symptoms occurred. There was also improved kinaesthetic awareness with playing.

I have no doubt that the MVA last year was the causal factor in the development of Damian's symptoms. It is not uncommon for proximal symptoms and sensitised nerve pathways to develop after such a trauma to the cervical region.[24]"

118 In his report to the TAC dated 22 October 2009, Dr Sharrock stated the following:

"The condition and its causation remains a mystery.

...

The relationship to the MCA is not clear cut. In the letter I have from the treating Rheumatologist Dr Simon Lamb (sic) there is mention of left sided hand pain between the little and ring for two weeks around the time of the accident. In the letter it is not clear if that symptom occurred before or after the accident."[25]

119 The defendant argued that the plaintiff's employment as a teacher at Ivanhoe Grammar was not affected by any claimed injury between the date of the accident and his resignation in order to travel overseas in September 2010, and that the absence of the same throws into doubt the claimed cause and effect.

120 The plaintiff was on the long summer school break between December 2008 and February 2009 and he was not teaching guitar, but he was recording music, and Dr Sharrock's letter of referral to Dr Lam identified the onset of the plaintiff's pain in the left hand some seven months before the accident which, chronologically, Mr Blanden identified as coinciding with the start of the year when the plaintiff was playing and recording professionally.

121 By way of answer to the matters advanced by the defendant, the plaintiff disputed the accuracy of the record of events relied on by the defendant. He maintained that the evidence identified that he had experienced pain since after the accident. Dr Lam wrote, in August 2009, that the plaintiff had experienced pain in the region between the little finger and the ring finger of the left hand around the time of the accident, and for a period of about two weeks, but then the pain settled and he commenced recording during the long school break, after which there was a recurrence of the symptoms in the left hand. The plaintiff said that the pain in his hand began within the weeks after the accident, and "it was at varying levels of pain, depending on what I would be doing".[26] I am satisfied that the plaintiff's account is reconcilable with the history reported to Dr Lam.

122 Subsequent medical examinations that addressed the occurrence of the transport accident, and to which the plaintiff drew attention, included:

(a) Mr Bhaskar 13/12/16: "He had a car accident in 2008, where he walked out unscathed, but two weeks later developed pain and numbness in the two medial fingers of the left hand."[27]

(b) Dr Aliashkevich 31/8/17: "The vehicle rolled over and Damian's head and neck sustained significant impact from the car roof. Over the subsequent days, he has experienced progressive pain in his neck and also pain radiating down the arm involving his left hand on the ulnar aspect. He underwent extensive hand treatment including physiotherapy, myotherapy, acupuncture, local cortisol injections and has consulted hand therapists and specialist."[28]

(c) Dr Bala 17/4/19: "... he could recall his neck going forwards and backwards. and the vehicle being turned upside down. He told me that he self-extracated (sic) himself from the vehicle and had to walk to his nearby accommodation. He stated that he went to Wangaratta Hospital the next day. He told me that over the next two weeks he gradually developed left hand pain, shoulder and neck pain which progressively worsened.

Mr Murdoch stated that after returning to Melbourne he went and saw his GP in Eltham over the next month ..."[29]

123 The defendant referred to the following paragraphs of the following medical examiners:

(a) Dr Bowles (14/9/2010) reported that the plaintiff's symptoms were not consistent with the accident: "There is no report of present issues around the time. Left hand complaints have been reported three weeks after the accident or alternatively Mr Murdoch was not sure whether they were present before or after the accident. Recent reports suggest onset of trapezial complaints a few months after the motor vehicle accident."[30]

(b) Mr Ireland (11/5/18) was _"not able to diagnose any significant physical abnormality affecting the left upper extremity"[31]_and was '"not able to ascribe a physical explanation for these ongoing symptoms".[32] Mr Ireland attributed the plaintiff's problem as iatrogenic.

124 Mr Rogers (17/5/18) considered that the alleged injuries and disabilities were not consistent with being the result of the accident.[33]

125 Dr Vidovich (15/8/18) considered that the plaintiff had suffered a vascular thoracic outlet syndrome that had been successfully treated,[34] and that his current condition was most likely due to a neurological thoracic outlet syndrome outside of his field of expertise.[35]

126 Mr Blanden submitted that a critical deficiency in the plaintiff's application was the absence of evidence from the plaintiff's initial treater, Ms Lucas, or indeed any lay affidavit evidence as to the onset of his hand symptoms. He contended that because of the absence of third party verification of the plaintiff's evidence, the documented histories of his medical treaters and the documentary evidence from Ivanhoe Grammar should be preferred when coupled with the fact of the plaintiff having lied on oath in his first affidavit and not having corrected the record when seen by Mr Doig and Dr Serry for the purposes of his serious injury application. Mr Blanden submitted that if I adopted his submission then it would necessarily result in the plaintiff failing to establish, on the balance of probabilities, that his hand symptoms commenced after the transport accident and/or that they were attributable to the transport accident.

127 The fact of the matter is that that there are inconsistencies in the plaintiff's evidence. There is a period of time that elapsed between the date of the transport accident and the attribution of it as the cause of the pain and suffering consequences or, indeed, of the plaintiff being seriously impacted by it. However, there has been no suggestion of an alternative trauma to account for the cause of the thoracic outlet syndrome. A suggestion that the plaintiff's guitar playing could be responsible for pathological changes in the cervical spine and thoracic outlet was devoid of persuasive evidence. Mr Tobin submitted that the pathology existing in the plaintiff's arm and neck has been identified as a consequence of the transport accident and accounting for the plaintiff's symptoms. I accept that there is certainly evidence to that effect.

128 Mr Tobin said that, although Dr Vidovich had said that the thoracic syndrome had been compromised and the thoracic outlet surgery had provided the plaintiff with relief from vascular symptoms, the plaintiff's neurological symptoms remained.

129 Mr Blanden challenged causation in part by the plaintiff's unreliability as a historian and his lack of truthfulness on some aspects of his evidence. Because of this submission it is necessary to express my findings on the matter of the plaintiff's credit and the extent of implication in the overall determination whether it is just and reasonable to extend time.

130 I accept that the plaintiff was untruthful on some matters deposed to by him in his affidavit. I also accept Mr Blanden's submission that the plaintiff was reluctant to accept his untruthfulness. However, whilst I am not satisfied that the plaintiff was a witness of truth on all matters, I am not prepared to conclude that the matters of dishonesty are of sufficient character and contents as to undermine the question concerning that of causation. In large part I found the plaintiff did his best to recount his history and to explain his efforts to balance his development of his career in light of being beset by an undoubted and complicated medical situation The matters on which the plaintiff was found lacking in his veracity are:

• his omission to disclose either performance work with, and income derived from, the Damien Murdoch Trio;

• his omission to disclose that he had secured the role of lead guitarist with The Ocean in December 2013;

• the characterisation he conveyed in his first affidavit that he had resigned from Ivanhoe Grammar because he felt he could not fulfil his duties to his satisfaction when, in truth, he had not resigned and the school had kept his position open for him. Also, that he gave up his employment at the school in July 2011 because of the success of his musical career overseas;

• His failure to correct the record of his history to Mr Doig and Dr Serry by updating his activities in his music career.

131 I can readily contemplate circumstances in which a lack of credit would be determinative against the grant of relief of the type the plaintiff seeks. The occurrence of an accident, for example, may, in a given case, be proved false. An injury that presents with no organic basis may be, when coupled with a lack of credit, adversely determinative. It may be that a history is proved to be so inconsistent with specialist opinion that the Court has no clear pathway to assess cause and consequence, and that direct evidence from a plaintiff is unreliable because of a lack of candour on other matters of important fact such as to be determinative against a plaintiff and the grant of relief. However, on balance, I do not regard the plaintiff's case, so far as his credit issues are concerned, as having diminished a sufficiency of evidence on the issue of causation.

132 Each problem the plaintiff finds himself confronted by in this application to extend time has been of his own making. However, I think it is a matter of some importance that the plaintiff elected to permit the limitation period to expire because he thought he would not succeed due to his supposed vulnerability by way of credit stemming from social media material located by the TAC, and based on the concerns expressed by Slater & Gordon in persuading a judge on a serious injury application in light of the same. The difficulties thought to have been created for the plaintiff's prospects of success, because of the social media discoveries by the TAC, drove Slater & Gordon's assessment and prompted it in laying out the parameters for its ongoing representation of the plaintiff in the event he pursued the matter further. When regard is had to the extent of the plaintiff's involvement with The Ocean, it is understandable that he accepted their advice. However, I am mindful that the plaintiff did not permit the limitation period to expire because, for example, he had not been in a transport accident within the meaning of the TA Act, or because his condition was stable and he was not experiencing progressive interferences to function. The development of the plaintiff's impairment is evident from the medical material.

133 I have found the absence of problems with the plaintiff's hand prior to the accident to be a persuasive consideration on the question of causation. The plaintiff said that had experienced pain in the middle of 2009 when he saw Dr Sharrock and was referred to Dr Lam and that the pain and difficulty it caused to daily activities and playing the guitar was the trigger for attending Ms Fitt and the referrals that then followed. I accept the plaintiff's account. Diagnostically speaking, in my judgement, ,there is a more reliable and objective basis to trace the commencement of the left hand problem to the transport accident than to a diagnostic basis that the plaintiff engaged in an overuse of his hand playing the guitar. The plaintiff presents with the existence of pathology in his arm and neck that I am satisfied on the balance of probabilities has been caused by the transport accident as opposed to not.

134 In distilling the evidence and then applying it against the various indicia set out in s23A of the Limitations Act, and after having had regard to the overall circumstances of the case, I am satisfied that it is just and reasonable to extend the time in which a proceeding may be commenced for the grant of a serious injury certificate.

135 The deficiencies pointed to by the defendant concerning an absence of contemporary corroborative account is, in my judgement, met sufficiently for the purposes of the determination of this application by the existence of other opinions that the plaintiff's account is consistent with his expressed symptoms. Furthermore, that the thoracic outlet syndrome, both vascular and neurological, have a traumatic basis consistent with the transport accident.

136 In order that an injury be considered to be serious, the consequences of the injury must be serious to the particular applicant and such consequences may relate to pecuniary disadvantage and/or pain and suffering. The question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.

137 In determining the consequences of Mr Murdoch's injury, I am required to look at those consequences as at the date of the hearing of his application, as opposed to any earlier time.

138 There was no challenge to the plaintiff's account of the consequences of his injury. The consequences are substantial. Mr Blanden appropriately submitted in the course of final address that:

" ...on the medicine as it now is and the plaintiff's condition as he now has it and says he's hampered by in terms of his capacity to play and all those sorts of things, we don't say that those circumstances and his position would not satisfy a test of serious injury if the causation element is satisfied".[36]

139 I am satisfied that the plaintiff's injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.

140 I am satisfied that, all things considered, it is just and reasonable to extend the time by which the plaintiff be entitled to commence his proceeding pursuant to s23A of the Limitations Act.

141 For the reasons expressed, I will grant the extension and I will grant a certificate for serious injury.

142 I will hear the parties on the appropriate form of orders required to give effect to my reasons.

[1] In addition, the TAC undertook through its Senior Counsel to indemnify the driver of the vehicle in the event common law proceedings are commenced consequent upon this decision thereby negating any necessity for process relating to the proceeding to have been served on the driver as a person with an interest in its outcome.

[2] See, for example, Lean v The Pitstop Motor Group Pty Ltd [2016] VSC 357 (AsJ Ierodiaconou) for a useful discussion on the matter

[3] [1996] HCA 25; (1996) 186 CLR 541

[4] [1972] USSC 146; (1972) 407 US 514

[5] The plaintiff's own vehicle was available to convey them to the hospital T96

[6] Section 93 of the TA Act stipulates that recovery in the form of damages is for injury "as a result of a transport accident..."

[7] The fact of the plaintiff's sister being admitted to practise as a lawyer does not add anything probative to the controversy save to reinforce the view that he was not subject to a lack of knowledge of his legal rights

[13] [2002] 54 NSWLR 207 at [95] and [98]

[15] Beyond a pre-hearing conference stage

[18] [2013] VSCA 247

[19] [2006] VSCA 71