Orchard v Long [2025] VCC 1804

1. As earlier noted, on or about 25 May 2002 the plaintiff and the defendant were both driving through the intersection of Settlement Road and Torquay Road when their vehicles collided. The plaintiff was travelling through the intersection while the defendant was turning right from Settlement Road into Torquay Road. The defendant's vehicle collided with the right-hand side of the plaintiff's vehicle. The accident occurred at about 6:05 pm. Both police and an ambulance attended the scene of the accident, and the plaintiff was taken by ambulance to The Geelong Hospital. As earlier indicated the plaintiff underwent surgery the following day and on several occasions since.
2. By her statement of claim dated 4 March 2025, the plaintiff pleads that the collision was caused by the defendant's negligence in the driving, management and control of his motor vehicle, which negligence is then particularised but not here reproduced. The plaintiff pleads that as a result of the collision she suffered injury, loss and damage and the particulars of the injury include, injury to her right knee, injury to her left hip and lumbar spine injury.
3. By his defence dated 14 May 2025, the defendant denies negligence and although admitting the plaintiff suffered injury because of the collision he does not admit the nature, extent or consequence of the injury, loss and damage alleged. Each pleading is accompanied by a proper basis certificate in accordance with s 42 of the Civil Procedure Act 2010 (CP Act).
4. The attending police officer, Mr Adrian Hurring, prepared a collision report.[14] Mr Hurring retired from Victoria Police in December 2024 and was evidently contacted separately first by the solicitors for the plaintiff and then solicitors for the TAC. Unsurprisingly, given the passage of time and the fact that Mr Hurring had worked in the Victoria Police traffic division for 11 years, he apparently told both solicitors that he could not recall anything about the transport accident, that it occurred a very long time ago and despite being shown the incident report, his memory was not jogged, nor did reference to names of the parties involved assist in any recollection of the incident.[15]
5. The plaintiff's car was towed by Winter & Taylor, a vehicle repair business in Geelong, but Winter & Taylor apparently do not hold any records, again unsurprisingly given the passage of time and the fact that in the instant case the ownership of the business changed hands and it is located at a different address to that at which the business operated at the time of the transport accident. Apparently, the current owners of the business have no knowledge about any records the previous owners might have kept or how they were kept.[16]
6. It is uncontroversial that the defendant was issued with a fine in relation to the incident which he paid, but the admissibility of that evidence in any civil action for damages as proof of negligence is in issue.
7. There are possible witnesses to the transport accident, each having made triple-zero calls. Two are identified or partially identified as Michelle Salter[17] and Marcus.[18] The third was an unknown caller.[19] Despite attempts by the solicitors for the TAC to track down the callers, these have thus far been unsuccessful.[20] The plaintiff's TAC claim form indicates that there were witnesses to the transport accident but details of these witnesses were not provided.[21]
8. The collision report prepared by Mr Hurring on the day of the transport accident carries the following notation "unit 2 straight through unit 1 turns into side unit 2 both units green signal". This suggests that both drivers told Mr Herring that they had a green signal. The intersection at Settlement Road and Torquay Road in Belmont is controlled by traffic signals. Traffic signals at an intersection are generally sequenced. VicRoads is the responsible authority for traffic signal sequencing, and it holds or keeps traffic light sequence information or data.
9. Beyond the handwritten collision report[22] and a typed incident report, no further documents about the traffic accident have been produced by Victoria Police and if such further documents existed, these would likely have been destroyed pursuant to the retention and disposal authority of records policy of Victoria Police.[23]
10. Although the TAC's solicitors have made efforts to obtain traffic light sequence information for the Settlement Road and Torquay Road intersection on 25 May 2002 between 6:00 pm and 6:30 pm, VicRoads has written to the TAC advising that such information is typically only kept for 10 years so that sequencing information for the intersection on the date in question is no longer available and that only generic information can be provided about how the sequencing typically operates at the intersection.[24]
11. As a result of the accident, the plaintiff sustained "a comminuted facture of the neck of the right femur and a fracture of the right superior pubic ramus"[25] which required surgical intervention the day after the accident, performed by Mr Robert Wood, surgeon.[26] After the surgery the plaintiff continued with physiotherapy, hydrotherapy and pilates.[27]
12. The plaintiff claims that after surgery, her surgeon said she would "get back to 100%", and because she was 20 years old, she "didn't look far into the future and think about things like osteoarthritis".[28] She reports that she was living at home, she did not have any "financial pressures", and the TAC was paying for her medical expenses, and therefore at this time she did not consider compensation.[29]
13. In 2003 the plaintiff underwent a secondary right hip surgery to remove a plate and screws which were inserted during her right hip surgery performed in 2002.[30] Prior to the accident the plaintiff was a professional level dancer, and she had planned to continue performing at a high level, however she stopped dancing after the accident "due to ongoing pain and restriction"[31]. During cross-examination the plaintiff clarified that it was within two years of the accident that she decided to stop dancing.[32]
14. In or about 2010 the plaintiff opened her own myotherapy business which she continues to operate.[33]
15. On 18 April 2011,[34] the plaintiff had a third right hip surgery performed by Mr Parminder Singh which involved a right hip arthroscopy and a labral repair.[35] After the surgery the plaintiff continued with physiotherapy treatment.
16. On 4 July 2013,[36] the plaintiff had a fourth hip surgery performed by Mr Parminder Singh. The plaintiff's evidence in her affidavit affirmed 30 June 2025 suggests that this surgery was a repeat of her surgery conducted in 2011, however in cross-examination the plaintiff suggested that "it might have been a different procedure, where they trimmed bone off the ball of the hip, so hoping that would have fixed the problem".[37]
17. In or about 26 September 2017,[38] the plaintiff attended Dr Karen Holzer, sports physician, complaining of knee pain, who recommended the plaintiff inject her patellofemoral joint with cortisone, and start a course of platelet rich plasma injections. Subsequently on 17 January 2018, the plaintiff attended Dr Holzer with complaints of knee pain, who commented on an MRI report that the plaintiff's right knee showed "presence of a small degenerative tear of the posterior horn of the medial meniscus"[39] and referred the plaintiff to Mr Adrian Trivett, knee surgeon.
18. On 18 April 2018, the plaintiff had a right knee surgery involving an arthroscopy and meniscal repair performed by Mr Trivett at Holmesglen Private Hospital.[40]
19. The plaintiff continued to experience right knee discomfort. On 19 June 2020, the plaintiff underwent a second right knee surgery performed by Mr Trivett to repair her meniscus.[41] Between February 2021 and May 2021 the plaintiff underwent three cortisone injections into her right knee.[42]
20. On or about 13 July 2021, the plaintiff attended Associate Professor Timothy Lording presenting with "pain in the medial aspect of the knee".[43] As to diagnosis, Associate Professor Lording considered that her pain may be referring from her hip and recommended the plaintiff undergo an image guided injection for her hip.[44]
21. In or about December 2021 the plaintiff attended Dr Jit Balakumar, orthopaedic surgeon, presenting with "an arthritic right hip joint on the background of the injury which was a femoral neck fracture".[45] In a letter to Dr Guy Buchanan, pain specialist, Dr Balakumar recommended the plaintiff attend Dr Buchanan for "consideration of a radiofrequency ablation into her facet joint", with anticipation that she will need to consider a total right hip replacement in the future.[46]
22. Dr Buchanan reports he assessed the plaintiff in March 2022, however injection-based treatment was deferred because the plaintiff was pregnant.[47]
23. In 2023 the plaintiff was notified by TAC that her entitlement to a gym membership and physiotherapy treatment would cease.[48] She claims this prompted her to reflect on how she would cope financially and care for her children.[49]
24. As earlier noted, in or around 2023 the plaintiff had a conversation with Mr Richards, during which he asked the plaintiff if she "had ever thought about putting in a claim for compensation", to which she said she didn't think she could.[50] Later in 2023, the plaintiff saw an advertisement for Slater and Gordon Lawyers and decided in or about July 2023 to search for "no-win no-fee lawyers" on Google, which as discussed earlier led to her retaining Slater and Gordon Lawyers to act for her in August 2023. On 29 August 2023, Slater and Gordon Lawyers put the TAC on notice that the plaintiff intended to bring common law proceedings.
25. The plaintiff's serious injury application was initially lodged on 28 March 2024; however, it was marked incomplete.
26. In or about May 2024 the plaintiff attended an independent medical examination with Dr Jarrad Stevens,[51] orthopaedic surgeon, who reported on 21 May 2024 that the plaintiff's prognosis is "guarded", and she is "likely to continue to experience pain and functional limitation".[52] As to diagnosis, he considers the plaintiff has "post traumatic arthritis" in her right hip which is likely to deteriorate in the future, where treatment is likely to be a total hip replacement.[53] In relation to her knee, he notes that the treating surgeon considered the "meniscal tear and trochlear groove chondropathy"[54] as related to the transport accident. He recommends that physiotherapy "be a mainstay in treatment for her at this stage".[55]
27. On 21 May 2024, the plaintiff lodged a completed serious injury application.
28. On 17 July 2024,[56] the plaintiff attended a further independent medical examination with Dr Robyn Horsley, occupational physician, who notes that since the plaintiff's funding from the TAC ceased, she continues with an at home exercise program, which involves walking, weightlifting, an indoor bike program and rehabilitation exercises which she has been doing on a "daily basis for about ten years".[57] Dr Horsley recommends reviews from a "podiatrist/orthotist to review her leg length difference" and a physiotherapist to review her weight program.[58] Dr Horsley notes that she is likely to decline into the future and this will have an impact on her future vocational options.[59]
29. In or about November 2024,[60] the plaintiff attended Dr Buchanan presenting with "low back pain and right anterior hip pain", with her primary complaint being "bilateral lower back pain".[61] Dr Buchanan reported confusion on whether the lumbar spine was a part of the accepted TAC claim, and recommended proceeding with "diagnostic lumbar medial branch blocks" to determine if "thermal radiofrequency denervation treatment of the lower lumbar facets" is appropriate.[62]
30. On 5 December 2024, the plaintiff was granted a serious injury certificate pursuant to s 93(4) of the TA Act.
31. As earlier noted, on 5 March 2025, after the matter did not resolve at conference, the plaintiff served the writ and statement of claim on both the TAC and on the defendant on 12 March 2025. The defendant filed his defence on 14 May 2025, denying negligence.
32. The plaintiff had disclosed in her TAC application form that she had hip surgery prior to the transport accident. The defendant says that the nature and extent of the plaintiff's hip condition and her health in general is a matter that is relevant to the quantum of any damages, and it maintains that none of the plaintiff's pre-accident medical reports or clinical records are available. The defendant says that causation is an issue in relation to the left hip injury because of the pre-existing left hip injury that required surgery. It also says that causation as to the lumbar spine condition is an issue as the TAC had previously denied liability for treatment in relation to the plaintiff's lumbar spine. And it says that causation is likely to be an issue in respect of the right knee injury and although the TAC funded treatment in respect of this injury it was unable to locate any evidence of any complaint about the plaintiff's right knee until some 15 years after the transport accident.[63]
33. A solicitor for the TAC has deposed to the attempts that have been made to obtain relevant medical evidence through the issuing of subpoenas and making enquiries of treating health professionals at various medical, physiotherapy and sports health centres attended by the plaintiff to obtain medical records.[64] The substance of the complaint appears to be that the defence may not be in a position to fully assess the plaintiff's medical history given the passage of time and the absence of a complete folio of documents comprising medical records and clinical notes and the like from the array of medical practitioners and health professionals the plaintiff may have consulted since at least her late teenage years.
34. The defendant is now 68 years of age and is terminally ill. On 13 October 2025 he was interviewed by a TAC solicitor about his failing health and about the circumstances of the transport accident.[65] The defendant appears to have prepared or been assisted in preparing two statements. In a statement signed 13 October 2025, the defendant says that he was "blown away" when he was notified of proceedings, and it has caused "a lot of additional stress".[66] He gives a recitation of his poor health. The other statement apparently contains information obtained from the defendant about the accident circumstances. It has not been produced in these proceedings and litigation privilege is claimed.
35. The defendant suffers from "liver cirrhosis and hepatocellular carcinoma".[67] Associate Professor Peter Eastman is the head of Barwon Health's Department of palliative care. Associate Professor Eastman in correspondence dated 25 November 2025 confirmed that the defendant is an inpatient at the Barwon Health palliative care unit, that he is deteriorating from a combination of decompensated liver cirrhosis and liver cancer (hepatocellular cancer) and is increasingly drowsy and bedbound. Associate Professor Eastman advised that the defendant would not be able to attend the hearing on 26 November 2025 (the date on which the plaintiff's application for an extension of time was scheduled for hearing). Associate Professor Eastman noted whilst the defendant's prognosis was impossible to accurately predict, the defendant's life expectancy is less than three months.[68] In earlier correspondence from Mr Anthony Scarsi, the defendant's neighbour confirmed the plaintiff has been transferred from the hospital to palliative care.[69]
36. Mr Scarsi, also affirmed an affidavit on 24 November 2025 in which he deposed, that although he was not involved in the defendant's medical care he had been employed as a paramedic for approximately 25 years and that on the basis of his observations in dealing with the plaintiff including visits to the hospital, Mr Scarsi opined that the defendant remained in hospital, was very weak physically and needed assistance with his daily care and mobility. Mr Scarsi considered that the defendant's mental well-being and willingness to engage with his surrounding spontaneously without lethargy or apathy had improved to some extent but considered that the defendant was declining cognitively.[70]

1. In support of her application for an order extending time, the plaintiff contends in summary that it is 'just and reasonable to allow an extension of time' in the circumstances. The plaintiff submitted that, while the delay in bringing the application was not insignificant - approximately 16 years beyond the limitation period - the explanation for the delay provided was reasonable in the circumstances.
2. The plaintiff contended that she genuinely believed she could only bring a claim within a small window - a period of 12 months or two years - and then only in cases involving catastrophic injury. The plaintiff's belief was mistaken but that she genuinely held it was not challenged. And the belief remained unchanged until 2023 when her physiotherapist advised her otherwise, prompting her to seek legal advice, which she did within four weeks.
3. The plaintiff submitted that while with the benefit of hindsight, she should have better investigated the appropriate limitation period sooner, it does not follow that her failure to take steps to do so was unreasonable. Here the plaintiff was at the relevant time a young woman, she had no legal training or experience or other knowledge, and she held the belief earlier set out. In the circumstances, any failure to take some further step to investigate applicable limitation periods was not unreasonable.
4. The plaintiff submitted that as the TAC had indicated it would not rely on prejudice arising after 29 August 2023, any deterioration in the defendant's health occurring subsequent to that date could not be relied upon as prejudice and in any event, the defendant could not explain why instructions were not obtained earlier, given it is now nearly two years after proceedings were issued.
5. The plaintiff contended that the defendant was at fault in the transport accident and the collision was caused by the defendant's negligence. She maintains that the contemporaneous evidence including the police report and the description of the accident are consistent with the plaintiff's version of events. The plaintiff says that any prejudice claimed by the defendant can only arise if he proposed some different version of events - namely that the collision was not his fault. The plaintiff says that the defence provides a bare denial and no particulars and so the basis on which the allegation of negligence is to be defended is unknown.
6. The plaintiff says that the lack of evidence from the defendant meant that there was no challenge to her version of events during cross-examination. Moreover, the defendant's failure to call or produce evidence from the defendant about the circumstances of the accident necessarily gives rise to the Court drawing an adverse inference that the defendant's evidence would not have assisted him. This is because there is no credible evidence that the defendant is unable to give evidence and points to the fact that he was able to provide a statement as at 13 October 2025. Accordingly, the failure to produce such evidence is unexplained.
7. The plaintiff submitted that "for all the court knows the defendant agrees that the accident was entirely his fault". In any event, the plaintiff says that there was no credible evidence supporting a conclusion that the defendant would not be able to give evidence, provided this shortly occurs through an examination de bene esse.
8. As to prejudice by reason of 'lost evidence' the plaintiff contends:

(a) there is no suggestion that the traffic light sequence has any relevance to determining fault; the inability to obtain documents from Victoria Police is unclear in circumstances where a police report is obtained and the evidence that the defendant was charged with failing to give way;

(b) she accepts there may be potential prejudice to the defendant from the inability to obtain recordings of the triple-zero calls and locate the witnesses; and

(c) records from Winter & Taylor are irrelevant.

1. The plaintiff says that the defendant's conduct in relation to subpoenas and interrogatories demonstrated a lack of cooperation in making facts available. She contends that the defendant's objections to subpoenas and his delays in answering interrogatories were inconsistent with the defendant's position that prejudice had been suffered. The plaintiff contends that the defendant has suffered no identifiable specific prejudice as a result of these proceedings and that there is no basis for finding that the delay has made the chances of a fair trial unlikely.
2. For its part the defendant in summary contends that the delay of 21 years, 3 months and 4 days is extraordinary, 'very substantial' and unexplained in any reasonable sense. The defendant says that unlike in cases where a plaintiff is unaware of their rights, here the plaintiff knew of the capacity to bring a claim and of the existence of a time limit, albeit misunderstood its duration. The defendant says that the plaintiff failed to make basic inquiries and considering the plaintiff's knowledge albeit mistaken, her injuries and treatment, her belief that the defendant was at fault, her professional and business background and her personal characteristics, that she did nothing to ascertain her rights until 21 years after the accident renders the delay unreasonable.
3. The defendant also contends that the plaintiff did not act promptly and reasonably considering the plaintiff's condition deteriorated a decade ago. The defendant says the plaintiff is computer literate, educated, and could have simply used Google or telephoned a solicitor but the choice of inaction in the circumstances was unreasonable.
4. The defendant claims both presumptive and actual prejudice. The defendant relies on his ill health and short life expectancy - less than 3 months, his incapacity to participate in any trial and its preparation; the passage of time inevitably means that memories fade; the attending police officer claims that he no longer recalls anything about the accident; independent and objective evidence has been permanently lost or is irretrievable and potential witnesses are not able to be located.
5. The defendant says that he is unable to participate in litigation proceedings because he is dying and his absence amounts to irremediable prejudice. Additionally certain evidence that would have otherwise assisted in the question of liability is irretrievable, for example Vic Roads traffic light sequence information and Victoria Police documents. And the whereabouts of three triple-zero callers as potential witnesses is unknown.
6. The defendant also disputes the nature, extent and consequences of the plaintiff's claimed injury, loss and damage, and disputes the causation of the plaintiff's claimed right knee injury. He says that much of the plaintiff's medical history, particularly for the period before the transport accident is no longer available because of the passage of time.
7. Accordingly, the defendant contends that it is not just and reasonable to extend time.

1. It is uncontroversial that the period within which the plaintiff's action could be brought is six years from the date on which the cause of action accrued which was on 25 May 2002. The limitation period expired on 25 May 2008.
2. Section 23A(2) of the LA Act permits a Court to extend the limitation period to bring an action if the Court decides "it is just and reasonable to do so". The Court is required to have regard to all the circumstances of the case including, without limitation, the several matters enumerated in s 23A(3), namely:

(a) the length of and reasons for the delay on the part of the plaintiff;

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

(c) the extent, if any, to which the defendant 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; and

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

1. Also uncontroversial are the principles that apply to this kind of extension of time application, and which are conveniently drawn together in Griffiths v Nillumbik Shire Council[71] as follows:

(1) The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended. It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;

(2) The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;

(3) The relevant delay commences from the time of the accrual of the cause of action;

(4) Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;

(5) In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;

(6) The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.[72]

1. In Prince Alfred College Incorporated v ADC,[73] the High Court made clear that the grant of an extension of time is not a presumptive entitlement which arises once the conditions that enliven the discretion are met. Rather, the onus of persuasion is upon the extension seeking applicant. And the proper exercise of the discretion to extend time takes account of the reasons for the limitation regime.[74]
2. In Griffiths[75], the Court of Appeal made the following observations about the purpose and effect of the limitation period in s 5(1)(a) of the LA Act:

The statements of principle of the High Court in Brisbane South Regional Health Authority v Taylor[76] remain the yardstick. Provisions such as s 5(1)(a) represent a judgment by the legislature that a right of a party to pursue a cause of action is not unlimited. There is a general public interest in ensuring that litigation is brought and prosecuted in a timely fashion.[77] Delay is productive of unfairness and prejudice: evidence is lost or diluted; witnesses may not be able to be called, their memories fade and reconstruction may take over. > > As McHugh J stated: > > > > A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.[78] > > To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.[79]

The length of and reasons for the delay on the part of the plaintiff

1. The plaintiff's contention of a 16-year delay is incorrect. Although much closer to the mark, the defendant's calculation of 21 years, 3 months and 4 days is also incorrect. It is uncontroversial that the plaintiff's cause of action accrued on 25 May 2002, the limitation period expired on 25 May 2008 and that the delay period is calculated from the date the cause of action accrued until 23 August 2023 - the date on which the TAC received the plaintiff's notice in accordance with the Time Limit Protocols that she intended to commence an action for damages. The length of the delay is therefore 21 years, 2 months and 29 days; and from the date the limitation period expired, the delay is 15 years, 2 months and 29 days.
2. I accept as the defendant described that the length of the delay is very substantial.
3. As earlier noted, the plaintiff deposed that she did not commence proceedings earlier because she thought that:

. . . someone had to be quite disabled (for example, be missing a limb or have suffered catastrophic injury) to make a claim for financial compensation. I didn't think I would fit into this class. I had also formed an impression that you had a small window, something like 12 months, to make such claims and I assumed mine would have passed.[80]

4. The plaintiff accepted that she was aware there was a capacity to make a claim and a time limit associated with making the claim, albeit qualified in both respects, the plaintiff stated that she did not know that she could make a claim for a sore hip,[81] nor that she qualified in that she believed she was not badly injured enough.[82]
5. Prior to the accident, the plaintiff was a professional level cabaret dancer and she aspired to continue dancing and performing at a high level.[83] The plaintiff deposed that after her 2002 surgery, her surgeon told her that she would "eventually get back to 100%", which she accepted.[84] The plaintiff thereafter completed her course of study, commenced employment as a myotherapist and worked full-time.[85] The plaintiff attempted a return to dancing, however, because of pain and restrictions resulting from injuries sustained in the accident, she could not.[86]
6. The plaintiff had further surgery to her right hip in 2003, and an arthroscopy of her right hip and a labral repair at Bellbird Private Hospital in 2011 which was funded by the TAC,[87] and she accepted that she was having issues with her hip at this time, she had a number of visits to the doctor, various scans and tests, and was referred to a specialist for her hip, who advised her that she had an injury to the labrum that needed a repair.[88]
7. The plaintiff accepted that as of 2011, her surgeon's assurance that she would get back to 100% was incorrect, and accepted that she was limited in some activities such as running or playing sport.[89] In 2013, the plaintiff had another hip procedure which was also funded by the TAC.[90] The plaintiff accepted that by 2013, her hip had been an ongoing problem for 10 years and that there was a likelihood that the problem will continue into the future.[91] The plaintiff said she was unable to work full-time from around "10 odd years ago"[92] which was when the pain got worse, and that at some stage, she was required to do regular exercise of up to 1.5 hrs a day to keep her symptoms under control.[93]
8. The plaintiff accepted that she could use a computer and was familiar with Google, but she could not proffer any reason (beyond her mistaken belief as to her rights) why she had not sought advice from a solicitor - at least in 2013 when it was apparent to her that her hip problem may be ongoing and would trouble her into the future - or at least a Google search about her rights, notwithstanding maintaining that she didn't think that she was badly injured enough.[94]
9. The plaintiff explained that she did not see a solicitor as she didn't have any reason to do so and did not think that she could get any compensation.[95] She accepted that it would not be an onerous exercise to enquire about a limitation period, or to ring a solicitor about her rights or do a quick Google search.[96]
10. The plaintiff deposed that she:

... came across people through my work and friends who had brought claims for compensation later than a year or two after an accident which surprised me. My physiotherapist Jed Richards asked me if I had ever thought about putting in a claim for compensation. I said to him "I don't think I can" and replied words to the effect "I have had clients who have". Again, this was only last year.[97]

11. The plaintiff deposed that in 2023 the TAC stopped funding her gym membership and physiotherapy which caused her mobility to deteriorate. It was at this point that the plaintiff was prompted to investigate her rights, knowing that she required a total hip replacement and reflected on how she could cope financially.[98]
12. The plaintiff struck me as an honest witness and she made appropriate concessions during cross-examination, sometimes to her detriment. I accept that the plaintiff's explanation about her belief as to her rights, though mistaken was genuinely held, and held for some significant period until 2023. Although I acknowledge the pitfalls of evaluating the plaintiff's actions through an adversarial legal prism noting the plaintiff was a young woman of 20 years at the time of the accident without legal training or knowledge of the applicable law, to ignore or down play what the plaintiff knew or came to know during the lengthy period of delay would be to avoid one trap only to be caught by another. The totality of the circumstances must be considered in evaluating the reason or explanation for the delay.
13. Here the plaintiff is a tertiary educated allied health professional. She has operated a small business since 2010 and is the mother of three children. The evidence discloses that the plaintiff believed at the time of the accident or soon afterwards, that the defendant was responsible for the collision.[99] The plaintiff's injuries were significant well before mid-2023 when she first sought legal advice. The plaintiff took quite some time to recover from the initial surgery; she had to delay completing her qualification for 12 months because of her treatment and the necessity to catch public transport as she was unable to drive;[100] she no longer performed paid dancing engagements;[101] she decided in a couple of years of the accident not to continue dancing having previously been a professional dancer;[102] she had further surgeries and in 2013 had another surgery to her right hip; by 2013 she knew that her hip problem was not going away and was likely to continue to trouble her and she knew that it had been an ongoing problem for the past decade.[103]
14. On the evidence it appears that the plaintiff knew by around 2013 that her injuries were significant and that she was not likely going to recover 100% as her surgeon had, in 2002 opined. By this stage, the plaintiff was no longer 20 years of age. She was 31 years old, had obtained a tertiary qualification and was working as a health professional. Moreover, the plaintiff explained it was about ten years ago when she realised, that because of her injuries she was unable to work full-time. The plaintiff was, then, around 34 years of age.
15. Accepting that in 2002 and for a few years thereafter, assured by her surgeon that she would eventually make a 100% recovery, given her age and considering her belief that her injury was not serious enough to pursue an action for damages and that the window for doing so was small and may well have passed, the plaintiff's inaction and a failure to make any other enquiries was not unreasonable - that state of affairs did not continue. By around 2013 and certainly by 2015 the significance of her injury was plainly impacting. She was not going to recover 100%, her aspirations to be a professional dancer had long ago evaporated and now her career as an allied health professional and her business was also being impacted by the injury.
16. These were substantial changes to her circumstances and a reasonable person in the position of the plaintiff would in my view have questioned whether she had some recourse for financial compensation which was apparently caused by injuries sustained in a transport accident in respect of which she considered the defendant to be at fault. And I agree with the defendant that it was not reasonable for the plaintiff to ignore her changed circumstances and to make no enquiries about her rights. A reasonable person in the circumstances the plaintiff faced by 2015, would question whether a belief formed many years earlier in different circumstances about any rights to claim compensation and any timeframes associated with such claims remained valid. All the more so since the plaintiff deposed that she had come across people through her work and friends who had brought claims for compensation later than a year or two after an accident which surprised her.[104] And yet no enquiry about her rights to bring a claim was made until mid-2023.
17. In the circumstances especially those which pertained from 2013, I do not consider that it was reasonable for the plaintiff not to take any step to explore her rights until mid-2023 - not even to conduct the barest of internet searches.

The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant

1. To begin, the plaintiff's submission that I should draw an inference adverse to the defendant_,_[105] because of the failure to call or put on any evidence about his version of the collision is rejected. The defendant's absence is plainly explained by the circumstances of his illness. The medical evidence makes plain that the defendant was not fit to attend or participate in the proceedings which was listed for hearing on 27 November 2025.
2. One further matter should be noted. The plaintiff submitted that although the defendant might be entitled to claim some prejudice if he had a different version of events but as it stands, there is no such evidence. And "for all the Court knows, the Defendant agrees that the accident was entirely his fault". This submission is also rejected. True it is that the defendant has not put on direct evidence as to his version of events. But the police collision report suggests that both the defendant and the plaintiff told the attending police officer that they each had a green signal to proceed through the intersection. Moreover, the defendant has by his defence denied negligence and the plaintiff's solicitors have prepared and filed a proper basis certification as required by s 42 of the CP Act in which the solicitors certify relevantly that each denial in the defence has a proper basis. The suggestion that the defendant might for all we know agree that the accident was entirely his fault is not only speculative but borders on a suggestion that the solicitors for the defendant have acted improperly in filing a proper basis certification. But I will give the plaintiff's counsel the benefit of the doubt that such an allegation was not intended by the submission. The submission otherwise has no substance; it takes the matter of assessing prejudice nowhere and is rejected.
3. Additionally, the plaintiff's suggestion in submissions that there is no evidence the defendant disagrees with the plaintiff's version of events simply cannot be accepted in the face of the collision report, and specifically the notation therein.
4. The defendant claims both presumptive and actual prejudice on several bases.
5. The defendant claims presumptive prejudice by reason of the inordinate delay. I have already observed that the delay is very substantial. And it may be accepted that the delay in any case is prima facie prejudicial and that the quality of justice deteriorates.[106]
6. As already mentioned, by his defence the defendant denies negligence. The Victoria Police Collision Report which provides "unit 2 straight through unit 1 turning into side unit 2 both units green signal" suggests, and contrary to the plaintiff's contention, that the defendant's denial is not baseless.
7. The passage of time, here more than two decades, inevitably means that memories will have faded and there is some evidence earlier discussed that the attending police officer has no recollection of the collision or of the parties involved in the collision. The defendant was at the time of the accident 44 years old and he is now 68, he is terminally ill and after such a lengthy period since the accident he doubtless had no thoughts of the accident or any liability for it, and so he was understandably, "blown away" when served with the proceeding which he says has added additional stress.[107]
8. The presumptive prejudice associated with the delay is not diminished by the evidence, rather the presumption is, as discussed above, made good. It shows some of the difficulty the defendant faces in investigating and defending the plaintiff's claim.
9. The defendant claims that critical evidence has been permanently lost or is now irretrievable, including the following:
   • VicRoads traffic light sequence information;
   • Victoria Police documents other than the collision report;
   • Triple-zero call recordings;
   • Whereabouts and observations of potential witnesses; and
   • Records from Winter & Taylor.
10. The traffic light sequence data for the relevant intersection is no longer available because of the passage of time. On the evidence, such data is kept for about 10 years. Given the notation in the collision report, I accept that access to light sequencing data for the intersection for the date and approximate time of the collision would likely be probative of the issue of liability and likely assist in resolving the issue. That this is so, is attributable to the delay and is prejudicial to the defendant. The plaintiff's suggestion that traffic light sequence data for the relevant intersection is of doubtful relevance is therefore rejected.
11. The parties have access to the Collision Report prepared by the attending police officer and a typed Traffic Incident System Report. Any additional police documents that may have existed which might have assisted in resolving liability have likely been destroyed. I accept that there is a possibility that police documents might have contained the names and contact details of witnesses to the collision particularly the individuals who made triple-zero calls discussed further below. However, beyond this there is no evidence about what other additional documents might have existed or been created about the collision. There is no evidence about documents Victoria Police might be expected to generate in relation to collisions of this kind, or what the relevant operating procedures in force at the time required of Victoria Police to do in relation to the creation of reports, photographs and other documents. Without such information that other documents existed is just speculative. I am therefore not persuaded, save for the possibility that documents might have assisted in locating witnesses, that this matter is particularly prejudicial.
12. The recordings of triple-zero calls made by three people immediately following the accident are no longer available because recordings held by triple-zero Victoria which were created between 1995 and 2013 have been disposed of by the agency. I accept that the recordings of these calls may have held a contemporaneous record of what independent callers said they observed or heard. There may have been information recorded which is probative of the issue of liability which is permanently lost. That this is so, is attributable to the delay and is prejudicial to the defendant.
13. Witnesses including the persons who made triple-zero calls have not been identified or located despite attempts. I accept that had proceedings been issued within time, or even in around 2013 when the significance of the plaintiff's injury was plainly impacting her, that there may have been a better chance to locate these witnesses, perhaps through any police record kept about the identity and contact details of witnesses. The inability to contact witnesses is prejudicial, as their observations would likely have been probative in determining liability. Added to the prejudice of course is the passage of time and the impact that has on fading memories.
14. As to any record created by the vehicle repair business, Winter & Taylor, which, if they existed, are no longer available, I am not persuaded there is any real prejudice. The prospect of a motor vehicle repair business having had any material document which pertains to the liability for the collision is frankly remote.
15. As noted earlier, the defendant disputes the nature, extent, and consequences of some of the plaintiff's claimed injuries, including injuries to the lumbar spine, left hip, and right knee and there is foreshadowed a dispute about causation. The dispute appears to arise from the differences between the claimed injuries in the plaintiff's TAC claim form and her statement of claim as well as a disclosure of a prior hip injury in the plaintiff's TAC claim form. Consequently, medical evidence and records will be relevant to and assist in resolving this dispute.
16. The evidence is that the defendant's efforts to obtain medical evidence and records from various medical and health professionals consulted by the plaintiff has revealed that such medical records as may have existed could not be obtained (or completely obtained) because of the passage of time, from Premier Care Medical Centre, Hamish Everard Natural Therapies, Premier Health Partners Freedom Physiotherapy and Corio Bay Sports Centre. The plaintiff had a left hip injury requiring surgical intervention by Mr David Young of Melbourne Orthopaedic Group before the transport accident. Records of the surgery have not been located, and it appears that the only pre-accident records available relate to the plaintiff's birth and an eye issue in 1998. I accept that the absence of a complete medical record because of the passage of time is likely to cause the defendant some prejudice.
17. The plaintiff claims damages for loss of earnings from 25 November 2003 to date. The defendant has been unable to contact prior employers or obtain tax returns for the years ending 2002, 2003, and 2004. No inquiries regarding subcontractor work between 2005 and 2010 have been possible. I am not particularly persuaded that this is prejudicial to the defendant. Ultimately, it will be for the plaintiff to establish loss of earnings and the absence of the documents the defendant identifies is likely more prejudicial to the plaintiff. Moreover, it is not suggested that the information cannot be obtained because of the passage of time but rather has not presently been obtained.
18. The defendant relies on the prejudice that arises because of his ill health and his incapacity to participate in the trial and preparation for trial. Dr Zain Al-Tahan from Barwon Health confirmed in a letter obtained on or about 13 October 2025 that "[g]iven [the defendant's] recurrent hospital admissions and the impact of his disease on his day-to-day activity, it would be extremely challenging for [the defendant] to attend any upcoming proceedings in Melbourne".[108]
19. The defendant is 68 years of age, an inpatient at the Barwon Health Palliative Care with a likely life expectancy of less than three months.[109] The anticipated trial date is, as earlier noted in July 2026. The defendant was admitted to Geelong Hospital on 16 October 2025[110] and discharged himself against medical advice on 25 October 2025.[111] He was re-admitted on 3 November 2025, where he remained until his admission to Barwon Health Palliative Care. There is in my view cogent evidence that the defendant cannot effectively participate in the proposed litigation because he is dying. It may be accepted that litigation tasks such as conferring with solicitors, providing instructions, answering interrogatories, swearing documents, attending Court, and giving evidence are now beyond his capacity, or at least strain his capacity given his weakened and dying state.
20. The defendant will be most likely, based on medical evidence, absent from the trial. His absence will plainly be prejudicial. Apart from the plaintiff, as things currently stand, there is no other witness available and able to give evidence about what happened in connection with the transport accident. It must be accepted, as the defendant contends, no one other than the defendant can give evidence about what he saw or heard, or his state of mind, when he was facing a "green signal" as indicated in the collision report in the moments before the collision in 2002.
21. The plaintiff suggested that independent objective evidence might prove negligence on the part of the defendant - specifically an Infringement or Penalty Notice issued by Victoria Police to the defendant for failing to give way. But I agree with the defendant that this information would not likely be admissible in the proposed negligence proceeding because of the operation of s 9 of Sch 7 of the Magistrates' Court Act 1989.[112] In any event, the attending police officer who issued the infringement notice was not at the scene at the time of the collision and from all accounts has no memory of its aftermath or the parties involved.
22. The plaintiff also submitted that there is no credible evidence that the defendant is unable to give evidence, provided it occurs shortly, via de bene esse, as is routine in asbestos-disease matters. I do not accept that this is the case and I agree with the defendant that it is tolerably clear that he is in no reasonable condition to be undertaking a de bene esse examination. The defendant is in palliative care, with a life expectancy of less than three months. The evidence is that the defendant is deteriorating from a combination of decompensated liver cirrhosis and liver cancer and is increasingly drowsy and bed-bound, he was unable to attend the extension of time hearing on 26 November 2025 at which he was required for cross-examination because of the seriousness of his illness. This does not bespeak someone who is in any condition to undertake a de bene esse examination.
23. The likely absence of the defendant at trial because of his terminal illness and the fact that he is now unlikely to be able to participate in the preparation of his defence because of the illness are matters that arose because of the delay. These issues would not be issues had the plaintiff acted earlier. In the result that the issues have now arisen are matters that are highly prejudicial to the defendant.
24. The plaintiff relied on the undertaking from the TAC given in accordance with the Time-Limit Protocols - that the TAC would not rely on any additional prejudice incurred from the date of the notification that the plaintiff intends to commence a common law proceeding, suggesting that the plaintiff's terminal illness affecting his capacity to defend the claim should not be considered as prejudicial. I do not accept that the undertaking is intended to comprehend the defendant becoming seriously and terminally ill so as to be unable to attend Court, give evidence and defend and participate in the defence of the plaintiff's claim. I accept the defendant's contention that the plaintiff is drawing the longest of bows.
25. I accept that a fair trial need not be a perfect trial, and that the passage of time without more does not mean there cannot be a fair trial. And whilst not all of the matters going to prejudice point to a conclusion that there cannot be an acceptably fair trial, the long delay affecting memory and availability of witnesses, the inability to obtain light signal sequencing for the relevant intersection and the defendant's inability to participate in his own defence because of his terminal illness and state of health, in my view point strongly to that conclusion. The 21-year delay means that some important contemporaneous, independent and objective evidence has been permanently lost - specifically the Vic Roads traffic light sequence information and the triple-zero recordings. Potential witnesses cannot be contacted, and the attending police officer has no memory of the event. When coupled with the defendant's illness resulting in his terminal inability to participate at the trial and in the preparation of the defence, the avenue to achieving an acceptably fair trial appears elusive. Most of this prejudice, including the defendant's health, would not have arisen to stand in the way of an acceptably fair trial but for the delay. Accordingly, I am not persuaded that a fair trial can be conducted despite the passage of time.

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

1. The plaintiff claims that she sought by subpoena several documents, including any documents concerning whether the defendant had received or paid a fine in relation to the accident in question in determining the issue of liability but, the defendant objected to the subpoena on the grounds of relevance. For the reasons earlier discussed, I consider that documents relating to the fine even if produced would not be admissible at trial as evidence of negligence. I therefore do not consider that in this regard the defendant has been obstructionist or less than forthcoming to enable the plaintiff to ascertain relevant facts.
2. The plaintiff says she served the defendant interrogatories for examination; however, in circumstances that the defendant's health is deteriorating, the defendant objected to providing answers to the interrogatories on the basis that it is not formally due until 42 days after service. The defendant also claims concerns of capacity in that "[the defendant] has been too unwell to provide instructions"[113] - a claim that the plaintiff maintains that there is no evidence to support.
3. The plaintiff's complaint about interrogatories is classically pot calling the kettle black. The plaintiff served interrogatories for the examination of the defendant on around 31 October 2025. Orders made by the Court required the interrogatories to be served by 26 September 2025. The plaintiff was not then in palliative care. There has been no application to vary the orders or to seek an extension for the service of interrogatories nor has the plaintiff provided any explanation for the late service. That the answers to interrogatories have not been provided is a product of the defendant's illness and the unexplained tardiness, by either the plaintiff or her solicitors in serving interrogatories on time in accordance with the orders that were made. Had they been served on time there is every likelihood they would now have been answered since the plaintiff was not hospitalised until 16 October 2025, he was discharged on 25 October 2025 and re-admitted on 3 November 2025 and later to palliative care.
4. In the circumstances, there is nothing in the defendant's conduct that would suggest that there has been any failure by the defendant to make available to the plaintiff material facts or the means of obtaining relevant facts.

1. The plaintiff does not rely on this factor and in any event no issue of legal incapacity arises.[114]

Whether the plaintiff acted promptly and reasonably once she knew she may have an action against the defendant

1. The plaintiff deposed and I accept that she acted promptly in that shortly after a teleconference with her solicitors, they thereafter promptly wrote to TAC giving notice that the plaintiff will commence a proceeding.
2. As the defendant correctly points out, on the evidence, the plaintiff was aware following the accident and after surgery, that she bore a permanent scar on her hip. Within two years, she stopped professional dancing, a pursuit she had intended to continue. The plaintiff required ongoing and extensive treatment. Despite her surgeon's advice that she would make a 100% recovery, the plaintiff's experience from the time of the accident was to the contrary. Her condition progressively deteriorated, necessitating multiple further surgeries. More than a decade after the collision the plaintiff's injuries prevented her from maintaining full-time employment and she had to undertake daily exercise for approximately ninety minutes to manage her symptoms.
3. I accept that the plaintiff should have made enquiries and sought advice within the six-year limitation period although I consider, she did not act unreasonably in not doing so for the reasons earlier given. But notwithstanding the plaintiff's earlier discussed mistaken belief, her failure to make enquiries when her injury and circumstances worsened between 2013 and 2015 and her circumstances had changed, was in my view unreasonable. I need not repeat my consideration of the plaintiff's circumstances earlier discussed. That consideration applies with equal force here.

The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice she may have received

1. The plaintiff relied on the matters discussed above, and particularly that she sought legal advice within weeks of becoming aware that she may have a claim for damages. The analysis earlier applies with equal force here and whilst I accept that following her conversation with her physiotherapist that the plaintiff acted reasonably promptly in seeking legal advice, the steps then taken are to be assessed in the context of an unreasonable period of inactivity in circumstances where her injury was worsening and impacting negatively on her personally and professionally.

1. It is trite that limitation periods apply whether a person knows about them or not. Prompt action is often required to prosecute a particular right, entitlement or cause of action. Section 23A of the LA Act allows in cases of this kind a six-year window within which to bring a claim and as with most limitation periods, there is allowance for late claims to be accepted. Limitation periods are not easily movable lines. Time limits represent a formidable hurdle which are overcome only when a plaintiff satisfies the legislative test established for extending time. Here, the test relevantly is whether it is just and reasonable to extend the limitation period having regard to all the circumstances including the enumerated circumstances in s 23A(3).
2. In the instant case the delay is over two decades and is significant. Some of the delay is explicable in the early years having regard to the mistaken state of the plaintiff's knowledge and her relatively young age at the time of the accident and in the ensuing few years thereafter. But as earlier explained, the reasonableness of the plaintiff's reliance on a mistaken belief in the face of changed circumstances impacting the plaintiff's health and professional employment dissipates to the point whereby 2015 when the plaintiff was in her mid-30s, and a tertiary educated health professional of some years standing. Then and thereafter the plaintiff's failure to make the barest of enquiries as to her rights or the limitation period becomes unreasonable and her explanation for inaction and delay is unsatisfactory.
3. There is in this case prejudice by reason of the delay as earlier described which in my view has the effect of impacting the quality of justice and removing the likelihood of there being able to be conducted an acceptably fair trial. The defendant cannot be criticised for denying the plaintiff any opportunity to obtain relevant or material facts and the plaintiff's conduct, particularly the inaction can be criticised as unreasonable and unsatisfactory given the circumstances she faced. There are no other relevant matters or circumstances identified which ought be considered. Therefore, synthesising all the circumstances of the case discussed above, I am not persuaded that it is just and reasonable to extend time.
4. The plaintiff's application to extend the period within which the plaintiff's action for damages for negligence may be brought is dismissed.
5. I will hear the parties on costs.

[71] [2022] VSCA 212 at [68]

[73] [2016] HCA 37, 258 CLR 134

[75] [2022] VSCA 212 at [64]-[66]

[76] (1996) 186 CLR 541 at 544 (Dawson J), 547 (per Toohey and Gummow JJ), 551, 553-554 (McHugh J) and 573 (Kirby J)

[77] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541 at 552-553 (McHugh J)

[78] Brisbane South (1996) 186 CLR 541 at 553 (McHugh J)

[79] In this State, ss 23A and 27A of the LA Act in personal injuries claims

[105] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

[106] Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517 at [72]

[112] see discussion in Gui v Weston [2011] VSCA 265 at [48]-[63] about the operation and effect of s 33 of the Infringements Act 2006 which is relevantly in terms and effect the same as s 9 of Sch 7 of the Magistrates' Court Act 1989.

[114] The consideration in s 24A(3)(d) of the LA Act concerns legal (as opposed to physical or mental) disability: Van Gerven v Amaca Pty Ltd [2012] VSC 131 at [49]