Plaintiff v Defendant

1 The plaintiff, Dianne Davies, was involved in a motor vehicle collision in November 1995. Her car, whilst stationary at the traffic lights at the intersection of Williamsons Road and Westfield Drive Doncaster, was struck from behind by a car driven by the defendant, Judy Nilsen.

2 Ms Davies asserts that she now suffers from debilitating injuries (particularly to her left knee and back) as a result of that collision, and wants her claim against Ms Nilsen to proceed to trial next year.

3 However, Ms Davies took no steps to prosecute her case against Ms Nilsen for common law damages until late 2007. Her claim was statute-barred in November 2001. Before her case proceeds to trial, Ms Davies must satisfy the Court that it should grant her leave to bring her claim out of time, pursuant to s 23A of the Limitation of Actions Act 1958 (Limitation Act).

4 Part of the explanation for this claim taking so long to get close to a hearing is the serious injury process laid down by s 93 of the Transport Accident Act 1986. Ms Davies failed in her application before a County Court judge in September 2013 for leave to make a claim for common law damages. Subsequently, the Court of Appeal overturned that decision in November 2014,[1] and the present writ was issued a fortnight later.

5 There are three substantive issues which counsel for Ms Nilsen says should result in the dismissal of this application and the inevitable entry of judgment in favour of her client:

(a) that Ms Davies must have known prior to the cut-off date in November 2001 that she had common law rights which were governed by a limitation provision, and that for reasons best known to herself chose not to exercise them until she consulted her current solicitors in 2007;

(b) the length of time since the subject accident has given rise to both general prejudice and specific prejudice - particularly that created by the death, in 2009, of Ms Davies' primary general practitioner, who treated her over the course of a number of years, in relation to the injuries sustained in the accident; and

(c) that she has a claim against her former solicitor for failing to advise her as to her rights in relation to the relevant limitation period.

6 Counsel for Ms Davies responds by asserting that I should accept Ms Davies' evidence that she did not know of her common law rights until she consulted her current solicitors in 2007, and that the overall prejudice to Ms Nilsen's defence is insufficient to warrant refusing the application. Counsel contends that any potential claim against the solicitor is illusory.

7 In essence, Ms Davies attributes a disabling spinal (primarily low back) and left knee condition to the transport accident. Ms Nilsen's solicitor, Jacob Luca, deposes that at trial 'the issue of the causal connection between the transport accident and the back injuries is likely to be an important one.'[2]

8 The parties generally accepted the accuracy of the Chief Justice's summary of factual matters at paragraphs [18]-[74] of the reasons for judgment of the Court of Appeal,[3] although, counsel for Ms Nilsen took issue with a couple of minor matters.[4] I will not repeat in any detail what is contained in the reasons of the Chief Justice (which I adopt) but will set out below the critical dates for the purpose of this application.

9 Ms Davies was born on 16 January 1971. She was educated to year 10 and left school at the age of 16. Ms Davies had suffered from chronic fatigue syndrome in her late teens and early twenties.

10 The transport accident occurred at approximately 5.20pm on Wednesday, 22 November 1995 when Ms Davies was on her way home from work. Ms Nilsen's car collided with the rear of Ms Davies' car. The Transport Accident Commission (TAC) is the third party insurer of Ms Nilsen's car and Ms Davies was entitled to no-fault benefits under the Transport Accident Act (administered by TAC).

11 At the time of the accident, Ms Davies was employed by Centari Systems.

12 Ms Nilsen, in an unsigned statement, says that she has very little recollection of the circumstances of the accident, although somewhat surprisingly, it does not deal with what happened in the accident.

13 The following day, Ms Davies attended her local general practice, St Helena Mediplex. Although Ms Davies was usually treated by Dr Ian McPherson, on this occasion and on the following day she saw Dr Rose - another doctor at the clinic.

14 For the following six or so years, Ms Davies was treated at the St Helena Mediplex clinic, primarily by Dr McPherson, and from 2004 (when Dr McPherson retired), by Dr Penny Gaskell.

15 On 5 December 1995, Ms Davies filed a TAC claim form which was witnessed by a solicitor of Seaton Williams and Smith, for whom Ms Davies had worked for about a year when she was 18 years of age. The claim was for no-fault benefits under the Transport Accident Act. TAC accepted Ms Davies' claim for medical and like expenses on 14 December 1995.

16 Sometime in late 1995 or early 1996, Ms Davies consulted a solicitor, Phillip Cottier of Johnson Cottier Parker in relation to a WorkCover claim against her then employer Centari Systems,[4] and also in relation to her transport accident.[5]

17 On 24 June 1996, Ms Davies ceased employment with Centari Systems. On 27 June 1996, she lodged a claim against that company for payment of benefits under the Accident Compensation Act, which was handled by Mr Cottier.[6]

18 After a failed conciliation hearing, a proceeding was issued on Ms Davies' behalf by Mr Cottier (who had become a partner at the firm of Grice and Grice in Ivanhoe) in the Magistrates' Court on 23 April 1997 for payment of workers' compensation benefits. This matter resolved without a hearing in May of that year. The Victorian WorkCover Authority agent's file has been obtained by TAC.

19 Ms Davies has not worked for any significant period since the termination of her employment in June 1996. In her first affidavit in December 2007 (which dealt with the limitation of actions point) she deposed to ongoing problems from 1996 with spinal pain, and increasing left knee pain which significantly compromised her lifestyle and employment. Ms Davies commenced to receive a disability pension towards the end of 1998.[7]

20 On 10 October 1996, TAC discontinued payments of compensation to Ms Davies. In August 1997, Mr Cottier sought a reconsideration which, in November 1997, resulted in TAC affirming its decision.

21 On 24 November 1998, Mr Cottier requested from TAC, on Ms Davies' behalf, an impairment assessment pursuant to s 46A of the Transport Accident Act. This was rejected by TAC on 17 December 1998.

22 It is not entirely clear, but it seems likely that Ms Davies last saw Mr Cottier in late 1999. Mr Cottier's file has since been destroyed and he did not give evidence in this application.

23 The period in which Ms Davies could have brought a claim for common law damages in time expired on 21 November 2001.

24 Between 2001 and 2007, Ms Davies continued to receive treatment for her spinal and left knee conditions. For instance, in 2004 Ms Davies had an MRI of her left knee (ordered by Mr Kiellerup, an orthopaedic surgeon), which revealed chrondomalacia of the patella.

25 In January 2006, Ms Davies commenced seeing Dr Tony Pastore, a psychologist.[8] At some point during one of their consultations (the timing of which was a matter of contention in this application), Dr Pastore advised Ms Davies to see Ms Patsy Toop, then of the firm Clark & Toop (as it was then known) to discuss Ms Davies' legal rights in respect of her injuries.

26 On 25 January 2006, Dr Pastore and Ms Davies completed a TAC treatment plan that was lodged with TAC.

27 On 11 April 2007,[9] Ms Davies attended the offices of Clark & Toop and gave instructions to Ms Toop in relation to her injuries arising out of the transport accident and her desire to issue common law proceedings.

28 On 4 June 2007, Clark & Toop advised TAC of Ms Davies' desire to seek a serious injury certificate, and by inference, to prosecute a common law claim, and enquired as to whether TAC would require Ms Davies to apply for an extension of time.

29 Later that same day, TAC wrote to Ms Toop advising that:

(a) no previous request for a serious injury certificate had been made on Ms Davies' behalf;

(b) TAC had not at any time granted a waiver of the limitation period as contained in the Limitation Act; and

(c) there was no need to bring a s 23A application on Ms Davies' behalf until the serious injury question was resolved.

30 In a letter of 30 November 2007, Clark & Toop filed Ms Davies' unsigned application for a serious injury certificate accompanied by an unsworn affidavit with TAC.

31 After having Ms Davies examined by an orthopaedic surgeon and a psychiatrist, TAC refused Ms Davies' application on 19 November 2008.

33 On 14 January 2009, Ms Davies issued an originating motion in the County Court seeking leave to issue a proceeding on the basis of a serious injury under s 93(4)(d) of the Transport Accident Act and to extend time pursuant to s 23A of the Limitation Act.

34 On 30 August and 2 September 2013, the serious injury application (and an application for extension of time under s 23A) was heard in the County Court.

35 On 25 September 2013, the County Court judge refused the serious injury application and did not determine the s 23A application.

36 On 7 November 2014, the Court Of Appeal allowed Ms Davies' appeal against the orders of the County Court, and gave her leave pursuant to s 93 of the Transport Accident Act to issue a common law proceeding.

37 On 21 November 2014, Ms Davies issued a writ in this Court seeking damages in relation to the injuries sustained in the transport accident.

38 On 12 March 2015, Ms Nilsen filed a defence which, amongst other things, alleged contributory negligence and pleaded that the claim was statute barred by reason of section 5(1) of the Limitation Act.

39 Between 2007 (when she first consulted Ms Toop) and the hearing of this application Ms Davies swore five affidavits dated:

40 Ms Davies' solicitors swore the following affidavits:

(a) affidavit of Patsy Faye Westray Toop dated 10 June 2015;

(b) affidavit of Brigid Jane McCullough dated 16 September 2015;

(c) further affidavit of Brigid Jane McCullough dated 21 September 2015 ; and

(d) second further affidavit of Jane Brigid McCullough dated 21 September 2015.

41 On behalf of Ms Nilsen, the following affidavits were filed:

(a) affidavit of Jacob Anthony Luca dated 21 July 2015;

(b) further affidavit of Jacob Anthony Luca dated 17 September 2015; and

(c) second further affidavit of Jacob Anthony Luca dated 18 September 2015.

42 Ms Davies gave oral evidence to supplement her affidavits, and was cross-examined by senior counsel for Ms Nilsen.

43 Ms Davies' claim is statute barred by the Limitation Act. The principles applicable to an application for extension of time are well known[10] and it is not necessary to recite them in any detail. It suffices to say the following:

(a) A claim arising out of a transport accident is statute-barred six years after the date of accrual of a cause of action - invariably the date of the accident.[11]

(b) A limitation period is imposed by the legislature for good reasons of public policy and should not be regarded as a mere signpost.[12]

(c) Having said that, since 1973, in this State, the legislature has seen fit to enable a claimant, in a case where it is just and equitable to do so, to apply for an extension of time to bring their claim.[13] The provision, s 23A, is beneficial and provides the Court with a wide discretion as to whether an extension of time ought to be granted.

(d) Whilst the primary consideration in a s 23A application is whether it is 'just and reasonable' to extend the period in which to bring a claim,[14] the legislature has identified six non-exhaustive criteria to be considered by a court in such an application -

(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.[15]

(e) The plaintiff carries the onus of establishing that it is just and reasonable to grant an extension of time.[16]

(f) The right of a plaintiff to bring a case against a former solicitor for failing to initiate a proceeding within time is a relevant consideration in determining whether to grant an extension of time.[17] The weight to be given to this consideration depends upon the circumstances of the case.[18]

44 The task of the trial judge in determining such an application is not unlike that of the imposition of a sentence in a criminal trial: the synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion.[19]

45 Counsel for both parties put propositions which, upon examination, are untenable.

46 Counsel for Ms Davies argued that in reality, if not at law, Ms Davies could not have prosecuted a claim for damages until she had a viable serious injury application which is a precursor to a claim for common law damages. This was said to explain the significant delay between November 2001 (when the statute took effect) and May 2007 (when Ms Davies saw Ms Toop). This contention fails on three counts.

47 First, the inquiry at this stage as to the matters contained in (a), (e) and (f) of section 23A of the Limitation Act is clearly directed to a claimant's state of mind, and his or her actions in ascertaining or protecting his or her rights. It is not to the point that a serious injury application in, say, July 2001 would have been successful or that it would have failed. Rather, the Court examines all the actions of the claimant in the context of pursuing a common law claim (including any steps to secure a serious injury grant). This will be considered shortly.

48 Second, the law is clear. The accrual of a cause of action for the purposes of the Limitation Act is not dependent on the serious injury provisions of the Transport Accident Act. As Batt and Buchanan JJA said in Swannell v Farmer,[20] s 93 of the Transport Accident Act 'does not extinguish existing causes of action but rather extinguishes a field of potential rights and liabilities.'[21] So, in Hayes v TAC,[22] the Court of Appeal held that the limitation period in a claim governed by the Transport Accident Act expired six years from the date of the accident.

49 To put it succinctly, the cause of action is not conditional upon establishing a serious injury within the terms of section 93. However, as the Court made clear in Hayes, the question of the pursuit of a serious injury application is relevant in determining whether the delay is inordinate.

50 Third, if I am wrong about these propositions the position in relation to a successful injury application is quite unclear. On Ms Davies' account, she was significantly disabled (as I have set out) to the point of being in receipt of a disability pension by 1999. Even if the medical evidence was equivocal, Ms Davies knew the extent of her disability which, on her account, was debilitating by the end of the six year period.

51 Finally, I should mention correspondence received after the hearing concluded. Without an application or grant of leave, Ms Davies' counsel filed further 'submissions' (which were responded to by counsel for Ms Nilsen). This is nowhere near good enough. It is not open to a party to file additional material or submissions without obtaining the leave of the Court. Putting to one side common courtesy, it would mean applications would never end. I have not read or considered these 'submissions'.

52 Equally, a number of the propositions advanced by counsel for Ms Nilsen cannot be seriously entertained. First, the suggestion that Ms Nilsen is prejudiced in a contest on liability. It was conceded that Ms Nilsen drove negligently in colliding with the rear of Ms Davies' car. The TAC claim form and the Victoria Police report are available; each confirms the circumstances outlined by Ms Davies. The only outstanding allegation is that of contributory negligence. The particulars contained in the defence filed by Ms Nilsen are as follows:

(b) failing to exercise reasonable care and skill in the driving and management of her motor vehicle;

(c) failing to maintain sufficient distance between her motor vehicle and other motor vehicles on the roadway;

(d) failing to keep her motor vehicle under any or any proper control;

(e) failing to apply the brakes of her motor vehicle sufficiently to avoid a collision;

(f) failing to observe the proximity of other motor vehicles on the roadway;

(g) failing to take any or any adequate evasive action to avoid the collision;

(h) failing to comply with the provisions of the Road Safety Act 1986.

53 It was never explained how these allegations of contributory negligence were to be seriously advanced at trial, particularly as all the evidence demonstrates that Ms Davies' car was stationary in a line of traffic, waiting to make a right hand turn. Pointedly, Ms Nilsen's unsigned statement (which must carry very little if any evidentiary weight) fails to deal with whether she has any recollection of how the accident occurred as opposed to peripheral details concerning the identities of drivers etc. Moreover, there is no suggestion that the police report or the details contained in Ms Davies' TAC claim are incorrect.

54 Second, the proposition that TAC lacks information concerning the workers compensation claim made by Ms Davies in 1996 is clearly wrong. Both the agent's file and the Accident Compensation Conciliation Service files have been obtained. The files run to hundreds of pages and contain a wealth of information about the claim and Ms Davies' psychological condition at the time. The complaint by TAC that the conciliation file was 'in no apparent order and contained many duplicates' is pedantic and irrelevant. Similarly, the complaint about the missing Magistrates' Court file is without merit as the documents are contained within the agent's file.

55 Third, I do not accept that there is a dearth of medical information concerning the treatment of Ms Davies over the years between 1996 and 2007. With one exception, which is significant and which I shall address as a real issue, there is an abundance of reports and clinical records concerning Ms Davies' health over the past twenty years.

56 Fourth, I do not accept the criticism that Ms Davies, having identified to TAC (via her solicitors) the need to bring an application for an extension of time in June 2007, delayed unreasonably by not bringing the application until November 2012. The written submission filed on Ms Nilsen's behalf reads as follows:

The Plaintiff's solicitor identified as at 4 June 2007 the need to bring an application to extend time immediately, yet no application was brought until November 2012, and then only reluctantly. No explanation is given for the 18 month delay between April 2007 and at the earliest, January 2009. Further, the Plaintiff actively resisted the determination of the limitations issue, amending her Originating Motion to delete the issue.

57 To act on this submission would be a triumph of form over substance particularly in light of the correspondence between Ms Davies solicitors and TAC.

58 TAC was on notice from June 2007 that a s 23A application would probably be brought by Ms Davies. In its letter of 4 June 2007, to which I have already referred, TAC unequivocally, unconditionally and unambiguously stated:

Please be advised that the TAC is the authorised insurer of all the vehicles involved in the accident and no additional prejudice will be alleged from the date of your letter. This undertaking is given on the understanding that you will lodge a serious injury application by 4 December 2007. [Emphasis added]

59 In November 2008, TAC rejected the serious injury application and, contrary to its earlier advice, suggested that the extension of time application be made at the same time as the serious injury application. This was duly undertaken when Ms Davies issued her originating motion in January 2009.

60 The correspondence makes it abundantly clear that Ms Nilsen's lawyers, the most experienced transport accident litigators in this State - if not the country - in 2007 clearly understood that a limitation extension application would be made, if TAC elected to take a limitation point. Indeed, the undertaking given by TAC not to allege any prejudice after June 2007 can only have been made with this in mind.

61 Part of the problem with the ensuing delay, of course, was endeavouring to sort out the serious injury application itself. There was no ready explanation for why four years elapsed between the issue and the hearing; undoubtedly, if there had been an attempted explanation of the delay, there would have been another large folder filed with 'tit for tat' accusations, as to its cause.

62 But all of this is beside the point. No fault can be laid at the door of Ms Davies from the time that she instructed Ms Toop. Counsel for Ms Nilsen contended in oral submissions that Ms Davies was bound by the inaction of her agents, Clark and Toop (a vastly experienced tort litigator in this State). At the time, I said this proposition affronted common sense. I adopt without hesitation what was said by Starke J in Anisiena v H Crane Haulage Pty Ltd:[23]

It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this and against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of the opinion that it was entirely reasonable for a layman without legal qualifications to do as he did.[24]

63 This proposition was subsequently adopted by the Court of Appeal in Millard v State of Victoria[25] where Mandie AJA (with Chernov and Ashley JJA agreeing) said:

I deal first with the question of delay on the part of the plaintiff himself. The accident occurred in December 1994 and the plaintiff first consulted solicitors in January 1996. That was not an unreasonable delay having regard to his injuries and the surgery which was performed on his left knee in February and May 1995. There is no evidence that the plaintiff's solicitors did anything from January 1996 until January 1999 when they commenced to obtain medical reports. Nor is there evidence that the plaintiff did anything about his solicitors' inaction during this period and it may reasonably be inferred that he did nothing. However, it was in my opinion not unreasonable for the plaintiff to leave his legal affairs in this respect to his solicitors, and, even if he was neglectful, it was at least understandable and excusable given his illiteracy and lack of education. At all relevant times after January 1999 it would have been apparent to the plaintiff that his solicitors were advancing the matter (if slowly) and it continued to be reasonable of him to leave the matter entirely to his solicitors, especially given the complexity and technicality of the matters with which they were attempting to deal.[26]

64 In my view, Ms Davies acted reasonably and with no inordinate delay on her part after June 2007.

65 As I see it, the substantive issues in determining whether it is just and equitable to extend the time in which Ms Davies may bring her claim are as follows:

(a) the state of the knowledge of Ms Davies as to her rights and what efforts were made by her to pursue a claim prior to June 2007;

(b) the degree of prejudice sustained by Ms Nilsen (and her insurer, TAC) in defence of the claim;

(c) the weight, if any, to be given to a potential claim that Ms Davies may have against her former solicitor, Mr Cottier.

66 As I mentioned earlier, I regard the relevant period for the consideration of the matters to be between the time of the accident in November 1995, and June 2007, when TAC was put on notice as to the claim. I reiterate that I am of the opinion that Ms Davies' actions, after that point of time, were reasonable.

67 In her first affidavit of December 2007, Ms Davies dealt solely with the effects of the accident. It suffices to say that she contends that she was suffering significant problems with her back from 1996, and from ongoing symptoms in her left knee.[27]

68 In her subsequent affidavit of September 2008, Ms Davies specifically dealt with her application for an extension of time. She said as follows:

So far as I am able to recall, at no time did Mr Cottier advise me as to the need to obtain serious injury certification before bringing any action for common law damages, nor that I had an entitlement to bring an action for common law, nor that the limitation period applicable to such a claim was six years.[28]

69 Ms Davies maintained, in that affidavit, that Dr Pastore (whom she said she had first consulted with in mid-to-late 2006), suggested that she obtain advice from Ms Toop and that she instructed Ms Toop's firm to act on her behalf in June 2007.

70 Ms Davies next swore affidavits in October 2009 and October 2012. These affidavits are similar to her first, in that they detail Ms Davies' treatment regime and symptoms . In her affidavits, Ms Davies states that the pain in her lower back and left knee is severe and ongoing (and in the case of Ms Davies' left knee, worsening by 2012) and continues to severely impact her day-to-day life.[29]

71 In Ms Davies' subsequent affidavit of 25 January 2013 - filed in support of her application under s 23A - she returned to the lack of advice given by Mr Cottier:

I believe that Mr Cottier also pursued my claim as much as he was able at the time but found it difficult to obtain any benefits on my behalf and my recollection is of him telling me that there was nothing more that he could do. I do not recall whilst he represented me Mr Cottier informing me of the serious injury regime or the need to obtain a serious injury certificate in order to claim common law damages. Nor do I have a memory of Mr Cottier telling me that there was a six year limitation period within which to claim damages.[30]

72 In her evidence before me and on the County Court application, Ms Davies swore that until she saw Ms Toop, she did not know anything about her rights to bring a common law proceeding and that Mr Cottier had failed to provide her with such information.[31]

73 It is helpful, in assessing the accuracy of this version of events, to look briefly at the criticisms made of it by counsel for Ms Nilsen.

74 First, it was said that Ms Davies was an inherently unreliable historian and that often (as in her two affidavits), she did not affirmatively depose that she had not received such advice. Rather, Ms Davies said that she could not recall such advice being given by Mr Cottier.

75 Second, counsel for Ms Nilsen said that it defied credulity that an experienced solicitor with personal injury accreditation such as Mr Cottier would not have mentioned to Ms Davies the prospect of common law proceedings, relevant limitation periods and the necessity to obtain serious injury certification (or leave of the Court). Although there is no direct evidence of what was said by Mr Cottier to Ms Davies, it was submitted that I should infer that, given Ms Davies' stated injuries and the nature of her complaints of the extent of those injuries (as described in her affidavits and in evidence), the lack of any such advice was inherently implausible.

76 Third, it was said that I should draw a Jones v Dunkel[32] inference against Ms Davies in support of the first contention by reason of Ms Davies' failure to call Mr Cottier as a witness in the proceeding.

77 Finally, it was said that there were other pieces of evidence, such as doctors' notes, which supported the proposition that Ms Davies, at the very least, was 'thinking' about a claim.

78 Against these propositions, counsel for Ms Davies submitted that I should accept her as a credible historian, and that her account of not receiving any advice has been consistent. Counsel said that Ms Davies is believable and I should look no further. Whether at times Ms Davies qualified her account by stating that she could not recall mattered not, as the thrust of her evidence was that no advice was given.

79 In relation to the Jones v Dunkel inference, Ms Davies' counsel said that Mr Cottier was, in truth, in no-one's camp and that this was particularly so as Ms Davies was contemplating issuing proceedings against him (or had done so - this was never clarified).

80 As to the first point made by counsel for Ms Nilsen, I do not regard the use of words such as 'as best I can recall' as casting doubt upon Ms Davies' evidence. As counsel for Ms Davies submitted, the thrust of her evidence was to the effect that she did not receive such advice. Whilst I have some reservations about the reliability of Ms Davies as an historian, overall she appeared to be doing her best to remember what had occurred in the meetings with Mr Cottier.

81 I accept her statement contained in the affidavit of 25 January 2013 that 'the result was that for many years I believed I had no rights.'[33] In particular, I accept that Ms Davies' was not aware of the limitation provisions and the exercise of her common law rights until she saw Dr Pastore.

82 As I mentioned at [75], counsel for Ms Nilsen advanced the proposition that, given the nature of Ms Davies' injuries and her continuing complaints about symptoms, it is likely that she would have sought, and been given, advice concerning her common law rights (including the existence of a statute of limitations) by Mr Cottier - an accredited personal injury specialist. Therefore (so the argument runs) I should reject Ms Davies account.

83 However, it is not possible to draw the inference (even allowing that it would only need to be drawn on the balance of probabilities) that Mr Cottier gave such advice. It is patently speculative to infer what occurred at any discussion between the two. The absence of the records of Mr Cottier means there is no contemporaneous documentation of the instructions given or the advice provided (if any ever existed). Who knows what was said? Just because Mr Cottier was an accredited personal injury specialist does not mean one can make a leap of faith and surmise that he probably mentioned these issues. Similarly, and contrary to the submission of counsel for Ms Nilsen, merely because Ms Davies sought review of the impairment assessment does not go anywhere near creating an inference that she knew about her common law rights and the statute of limitations.

84 As for a Jones v Dunkel inference, that case stands for the proposition that a failure to call a witness on a relevant issue in a case may lead to an inference that the witness' evidence would not have assisted the party who failed to call him or her.[34] An unexplained failure by a party to call witnesses may also lead to an inference arising from the evidence of the opposing party to be drawn more confidently.

85 But the inference can only be drawn if there is evidence upon which the tribunal of fact can act and to which the failure to call relates.

86 A Jones v Dunkel inference cannot be used to reinforce speculation, as opposed to an inference which can be properly drawn on the balance of probabilities. In the latter situation, the inference can reinforce that affirmative conclusion.[35] But that is not the case here.

87 It is not possible to be satisfied that there is any evidence (as opposed to speculation) as to the nature of advice given, if any, by Mr Cottier to Ms Davies. In those circumstances a Jones v Dunkel inference is not open.

88 Finally, I do not accept the suggestion that buried in the plethora of medical reports is evidence that Ms Davies was fully aware of her rights and chose to do nothing. For example, counsel for Ms Nilsen relied upon a note made by Dr Lloyd who saw Ms Davies in 2000, to the following effect:

The TAC terminated payments for her in mid-1997 indicating there was no demonstrable abnormality. She was annoyed by this and felt she could not subsequently afford other treatment. The driver was charged, but Dianne feels she again needs to talk to her solicitor about matters.

89 But this does not lead anywhere. It may well be, as the note suggests, that such a thought related to the refusal of her impairment assessment. Certainly, I would not infer that it meant that Ms Davies was thinking about a potential common law claim and perhaps whether she was out of time.

90 There are two other considerations on this issue which I should mention. First, even if one allows that Mr Cottier did not give the advice alleged, no explanation has been provided for Ms Davies' failure to seek any further legal advice from 1999, when Mr Cottier ceased representing Ms Davies, until 2007 when Ms Davies commenced to be represented by Clark & Toop.

91 Ms Davies' uncontested evidence is that she was significantly disabled during this period by the injuries she had sustained in the accident - particularly the injury to her back and that throughout this period, she consulted a number of medical professionals in respect of her complaints arising from those injuries. Notwithstanding this, Ms Davies did nothing to protect her interests - such as seeing another solicitor, or contacting a free legal service.

92 Second, there is no satisfactory explanation for Ms Davies' failure to take action expeditiously once she was told by Dr Pastore sometime in 2006 to go and see Ms Toop (which Ms Davies ultimately did in April 2007). Ms Davies' evidence about the times of the consultation at which the advice was provided and her visit to Ms Toop was contradictory. I am not at all sure when this conversation took place save that it must have been in 2006.

93 In Mr Luca's affidavit sworn in support of Ms Nilsen's resistance to the application, it is clear that the primary concern is the alleged inability to 'properly investigate the relationship between the transport accident and Ms Davies' alleged injuries and the nature and extent of her injuries.'[36]

94 The first part of Ms Nilsen's case on prejudice is that of general prejudice occasioned by Ms Davies' failure to issue this proceeding within time. In this case, the general prejudice is real, as over eleven years elapsed between the time of the accident and the first notice with five and a half years of delay (after the expiration of the limitation period in 2001) before Ms Davies took steps to protect her position.

95 The areas of specific prejudice are limited, but of some significance. I was told by counsel for Ms Nilsen that at any putative trial there would be real issues surrounding the question of causation (i.e. were these disabling injuries related to the transport accident) and the extent of any injuries said to be related to the transport accident. It was said that Ms Davies could not possibly succeed at trial - of course a jury may see it differently.

96 It cannot be doubted that the unavailability of the general practitioner, Dr McPherson, is of significance. He was responsible for the management of Ms Davies' condition throughout the six year period in which she could have brought the claim within time. He, no doubt, could express his opinion as to questions of causation and extent of injury arising out of the transport accident. On the other hand, the doctor produced a number of reports (five in total - four reports in respect of the transport accident and one relating to the WorkCover claim) concerning Ms Davies and his clinical notes which run to 35 pages, are available and may be tendered in the course of the trial. Of course, that does not give counsel for Ms Nilson the same opportunity he or she may have had if Dr McPherson gave evidence at the trial. But this may not be all to the disadvantage of the defence of Ms Davies' claim. For instance, the lack of an entry concerning a particular condition and its alleged relationship to the transport accident will be able to be highlighted by counsel without any opportunity of Dr McPherson qualifying the note in oral evidence.

97 Moreover, Dr Gaskell who took over Ms Davies' treatment at a general practitioner level in 2004 is fully versed with Ms Davies' history and has provided a number of reports. She will be available to give evidence at trial.

98 All in all, given the material available from Dr McPherson, I regard his absence as being relevant, but not critical to the case.

99 I should add that, contrary to the submission of counsel for Ms Davies, Dr McPherson's death is a relevant consideration. It is not to the point that he would not have been available to give evidence at the serious injury application or trial post-2009. If a serious injury application had been issued within time (or, for that matter, prior to 2007), then Dr McPherson would have been available to give evidence. As I have said, although some of the medical evidence may have been equivocal, Ms Davies' account of her symptoms could well have justified the issue of a serious injury application during the period prior to the limitation period expiring.

100 Two other doctors (Mr Tien and Dr Wilks) no longer have notes of their consultations with Ms Davies. I regard this of minimal significance, as there are reports from both (and in the case of Dr Wilks, two reports, one of which is detailed and runs to some ten pages) and neither has played a significant role in Ms Davies' treatment.

101 It is also relevant that, virtually all the other doctors involved in Ms Davies' treatment are available, and there is no suggestion that their clinical records are unavailable.

102 If Ms Davies' allegation that the lack of advice from Mr Cottier is accepted (which I have), then she may have a potential claim against Mr Cottier for failing to provide her with advice as to the effect of the limitations period and as to her common law rights (including the need to bring a serious injury application so as to protect her position).

103 However, in determining whether this failure has any value in terms of an alternative claim is fraught with difficulty. Mr Cottier's position in terms of advice given or not given is not known. As counsel for Ms Davies pointed out it may be that it will be asserted that there was not enough medical support for a serious injury application. This of course would not relieve Mr Cottier of an obligation to explain to Ms Davies her rights and any potential statutory impediments. But all of this is speculation. This case is far removed from my decision in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd[37] in which I was prepared to conclude that the right against the solicitor was sufficiently sound to be a persuasive consideration in refusing leave to issue a proceeding out of time. In my opinion this is a minor consideration which should be given little weight.

104 Ms Davies bears the onus of establishing that it is just and equitable to extend time. In determining to grant an extension of time, I have taken into account the following matters.

105 I accept that Ms Davies did not receive advice from Mr Cottier as to her common law rights and the limitation provision (including the need for a serious injury application). This, however still leaves her lack of action between 1999, when Mr Cottier ceased acting and 2007, when Ms Davies engaged Ms Toop to pursue a common law claim. Given the nature of Ms Davies' disability and its effect upon her, to leave the question of a claim for damages unexplored post 2000 was unsatisfactory.

106 However, it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism. Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state. On her account, she had not been told anything about limitation provisions or common law claims. Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal. I take a similar view of the delay in consulting Clark and Toop after receiving the advice of Dr Pastore.

107 Of course, the lengthy delay is relevant. The reality is that it was over eleven years after the accident and a further five and a half years after the expiry of the limitation period before Ms Davies did anything to protect her position. The concept of general prejudice is real in this context, as is the specific prejudice in the death of Dr McPherson. However those considerations need to be viewed in the light of the true issues at trial and particularly that of liability which I will turn to in a moment.

108 In Gordon I said the following of prejudice and a fair trial in the context of the NSW legislative scheme:

...in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is "acceptably fair". A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. In South Western Sydney Area Health Service v Gabriel, Hodgson JA said:

... The true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.

109 The actual prejudice to Ms Nilsen in defending this case needs to be considered carefully. In reality, this case, at trial (whenever heard), would proceed as an assessment of damages. There is nothing put up by Ms Nilsen to justify the suggestion that liability is an issue. The allegation of contributory negligence can be ignored. On the question of causation, the absence of Dr McPherson, as I have already noted, works both ways. As those who have practised in this area know, when there is a fight on causation, one of the areas that produces the most fertile ground for a defendant is the notes of the treating physician(s). Much will be made of the fact that a doctor has not recorded a particular symptom or condition in a timeframe close to the incident which is the subject of the litigation. This is the grist of common law trials. Here, the doctor's records can be examined and submissions made by Ms Nilsen's counsel to the jury. If the notes are silent as to a particular injury or symptom then to some degree, Ms Nilsen's counsel will be in a better position than his or her counterpart, as Dr McPherson is unable to refute the proposition that his notes alone contain an accurate summary of what he was told at a particular consultation by Ms Davies.

110 I readily accept that if there was no information from Dr McPherson, then there would be a real and significant prejudice to Ms Nilsen - but a substantial body of notes and reports exist. In addition, there is a plethora of information about Ms Davies medical condition from other sources and many of the treating practitioners remain able (if not willing) to give evidence. I am satisfied that the degree of prejudice is not sufficient to inhibit a fair trial. Whilst there is a degree of prejudice (including that of general prejudice) in the context of a case in which there is no real contest on liability and the notes and reports of the treating doctor are there to be examined by all, I do not regard this element as fatal to the application.

111 Finally, I do not regard the putative claim against the former solicitor as one of any real weight in determining whether to grant leave to bring the claim.

112 For the reasons I have set out, and after weighing up these considerations, I think it 'just and equitable' to permit Ms Davies to bring her case out of time notwithstanding the delay in advising TAC as to the existence of the claim.

113 I should conclude on this note. This case has lingered for far too long in the courts. It must be set down for trial. There is no need, as I discussed with both counsel, for any further interlocutory steps. The case will be set down for trial on 23 February 2016, with a mediation to be held prior to that date.

114 Subject to hearing from the parties, I propose to make the following orders:

(a) The plaintiff be granted an extension of time in which to bring this proceeding to 22 November 2014.

(b) That the trial of the proceeding be set down for 23 February 2016.

(c) That any further medical reports upon which the plaintiff and defendant seek to rely (and which have not been served) be filed by 15 January 2016.

(d) The plaintiff and defendant file lists of the witnesses they propose to call at trial by 29 January 2016.

(e) Mediation take place on or before 29 January 2016.

(f) The costs of this application be costs in the cause.

[1] Davies v Nilsen & Transport Accident Commission [2014] VSCA 278.

[2] Affidavit of Jacob Anthony Luca dated 21 July 2015, [34].

[3] First that the Chief Justice's summary of the factual circumstances took into consideration a report by the neuropsychiatrist, Dr Lloyd, which was not included in the material for this application - it was subsequently provided and admitted into evidence. Second, the Chief Justice's finding that the impact of the car accident was 'considerable' - a matter of apparent dispute between the parties .

[4] Transcript of Proceedings, Davies v Nilsen (Supreme Court of Victoria, J Forrest J, 21, 22, 23 September 2015) 95 (Transcript).

[5] Affidavit of Diane Davies dated 12 September 2008.

[6] Affidavit of Dianne Davies dated 25 January 2015.

[9] Affidavit of Jane Brigid McCullough dated 21 September 2015.

[10] See, for instance, Jeremy Ruskin, 'Extension of Time Limits under the Limitation of Actions Act 1958', (1979) 53 Law Institute Journal, 178.

[11] Limitation Act s 5(1).

[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551-553; Clark v McGuiness [2005] VSCA 108, [51]

[13] Limitation Act s 23A(3).

[14] Limitation Act s 23A(2).

[15] Limitation Act s 23A(3).

[16] Bell v SPC Ltd [1989] VicRp 15; [1989] VR 170, 174-175; Delai v Western District Health Service [2009] VSC 151, [21].

[17] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, [27]-[28]. See also Andresakis v Alexus Holdings Pty Ltd [2006] NSWCA 294.

[18] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517, [86].

[19] Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114, [33]; Millard v State of Victoria [2006] VSCA 29, [42]; Clark v McGuiness [2005] VSCA 108, [38]-[40].

[20] [1998] VSCA 104; [1999] 1 VR 299.

[22] [2010] VSCA 104, [21] (Hayes).

[23] [1974] VicRp 81; [1974] VR 670.

[25] [2006] VSCA 29.

[28] Affidavit 12 September 2008, [4].

[29] Affidavits 16 October 2009 and 5 October 2012.

[31] Transcript of Proceedings, Davies v Nilsen (County Court of Victoria, Misso J, 2 September 2013), 100.

[32] [1959] HCA 8; (1959) 101 CLR 298.

[33] Affidavit of 25 January 2013, [8].

[34] Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, [51] ("Schellenberg").

[36] Affidavit of Jacob Anthony Luca dated 21 July 2015, [32].

[37] [2007] VSC 517 (Gordon).