Plaintiff v Defendant

1. On 25 June 2010, the plaintiff, Mr Clinton Beer, was involved in a motor vehicle accident ('traffic accident'). Mr Beer was riding a motorcycle along Ballarto Road in Skye when he was hit by a truck driven by the defendant, Mr Gerard Edhouse, who was turning right from Ballarto Road into a side road. Mr Beer suffered multiple severe internal and orthopaedic injuries as a consequence of the traffic accident, and was hospitalised for a number of weeks.
2. In his statement of claim filed on 18 October 2024, Mr Beer claims damages for non-economic loss for the injuries he sustained in the traffic accident, alleging that the traffic accident was caused by Mr Edhouse's negligent driving, in particular, his failure to give way to oncoming vehicles. On 17 January 2025, Mr Edhouse filed a defence denying liability for Mr Beer's claim, pleading that Mr Beer's injuries, loss and damage were caused or contributed to by Mr Beer's own negligence. Mr Edhouse also pleads that Mr Beer's claim is statute barred by reason of the provisions of the Limitation of Actions Act 1958 (Vic) ('Act'). The limitation period expired on 25 June 2016.
3. By summons filed on 15 May 2025, Mr Beer seeks to extend the time period in which to bring his action for damages pursuant to s 23A of the Act.
4. At the hearing of the application, Mr Beer submitted that his explanation for why he did not take steps to issue this proceeding before May 2023, when his solicitors wrote to the Transport Accident Commission ('TAC') signalling Mr Beer's intention to make a claim for an impairment benefit and to bring a common law claim for damages against Mr Edhouse, should be accepted. In summary, Mr Beer submitted that he had no understanding of his legal rights, or of the existence of any limitation period, and his personal attributes and life circumstances did not equip him to take the steps necessary to ascertain those rights and obligations. Further, while Mr Beer accepts that there is necessarily some prejudice to Mr Edhouse by the passage of time, no particular prejudice to the conduct of a fair trial has been established.
5. In response, Mr Edhouse referred to the statement of the Court of Appeal in Griffiths v Nillumbik Shire Council ('Griffiths')0F0F[1] that the limitation period '...is not just some easily moveable line in the sand',1F1F[2] and exists for a good reason. Further, Mr Edhouse says that Mr Beer's explanation, to the extent that it is accepted, is not a reasonable explanation for why he failed to take any steps to pursue his rights for some 13 years after the traffic accident. Further, the evidence demonstrates that Mr Beer's delay in issuing this proceeding will prejudice Mr Edhouse's ability to defend Mr Beer's claim at trial, and accordingly, Mr Beer has not discharged the burden upon him to establish that it would be just and reasonable to extend the limitation period.

1. Section 23A(2) of the Act enables the Court to extend the limitation period within which to bring a cause of action if 'it is just and reasonable to do so'. Section 23A(3) of the Act provides that the Court must have regard to the following matters when determining whether it is just and reasonable to extend time:

(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.

1. The principles that apply to applications to extend a limitation period are uncontroversial, and were set out by the Court of Appeal in Griffiths,2F2F[3] 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.3F3F[4]

1. In _Prince Alfred College Incorporated v ADC,_4F4F[5] the High Court stated as follows:

In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court's decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision.5F5F[6]

1. Relevantly for the purposes of the current application, evaluating the reasonableness or otherwise of an application for the extension of time does not involve the application of a wholly objective test. In Hunt v Holcombe,6F6F[7] the Court of Appeal said as follows:

In any case, all examination of the reasonableness of an explanation for delay, in issuing proceedings, must involve an appreciation and analysis of the personal factors that affect the particular applicant's decision not to issue proceedings earlier. The question of the reasonableness of an explanation for a delay, in any case, must depend upon a number of factors that include the personal characteristics, knowledge and background of the particular applicant in question.7F7F[8]

1. Mr Beer relied upon the following evidence in support of his application for an extension of time:

(a) affidavits affirmed by his solicitor, Melanie Brockway of Prime Injury Lawyers, on 15 May 2025 and 22 August 2025;

(b) an affidavit sworn by him on 19 June 2025; and

(c) affidavits sworn by his solicitor, Timothy Jackson of Prime Injury Lawyers, on 20 June 2025 and 31 July 2025.

1. Mr Edhouse relied upon an affidavit affirmed by Clovelly Broad, a solicitor employed by the TAC, on 18 July 2025.
2. None of the above deponents, including Mr Beer, were cross-examined.
3. In her affidavit affirmed on 15 May 2025, Ms Brockway deposed, in summary, as follows:

(a) in May 2023, Mr Beer instructed Prime Injury Lawyers to act on his behalf with respect to his claims arising from the traffic accident;

(b) on or about 16 May 2023, Mr Jackson wrote to the TAC giving notice of Mr Beer's intention to make a serious injury application;

(c) on 5 October 2023, Mr Jackson attended Mr Beer's home for the purpose of witnessing his affidavit in support of his serious injury application ('serious injury affidavit') , but Mr Beer's father told him that Mr Beer was in jail;

(d) on 14 December 2023, Mr Beer swore the serious injury affidavit while incarcerated at Ravenhall Correctional Centre, and the serious injury application was lodged with the TAC on 19 December 2023;

(e) on 2 February 2024, the TAC granted Mr Beer a serious injury certificate;

(f) on 23 September 2024, the parties participated in an (unsuccessful) TAC common law conference, with the necessary certification provided by the TAC on 8 October 2024; and

(g) this proceeding was issued on 18 October 2024.

1. Exhibited to Ms Brockway's affidavit were, among other things, the following documents:

(a) the letter from Prime Injury Lawyers to the TAC dated 16 May 2023 ('notification letter');

(b) Mr Beer's serious injury application form and the serious injury certificate granted by the TAC; and

(c) documents evidencing service of the writ and statement of claim in this proceeding.

1. In his affidavit sworn on 19 June 2025, Mr Beer referred to and adopted the serious injury affidavit, and deposed further as follows:

I acknowledge that I lodged my claim 13 years after the accident. The reasons that I did not bring my claim sooner are:

(a) I did not know about any time limitation in pursuing a common law claim until not long before I sought legal advice.

(b) I did not know that I needed to seek legal advice until my physiotherapist in Wonthaggi also suggested that I see a lawyer. I got in touch with Prime Injury Lawyers and spoke to Tim Jackson. I spoke with Mr Jackson for the first time on 12 May 2023 and I understand that Mr Jackson wrote to the TAC to notify them of my claim a few days later.

(c) I am bad with the internet and computers, and I struggle to read and write. I don't watch a lot of TV.

(d) I have been in and out of prison and have had periods of homelessness which also delayed things.

I do not recall the TAC ever having written to me about my common law entitlements.

1. In his affidavit sworn on 20 June 2025, Mr Jackson deposed, in summary, as follows:

(a) he first met with Mr Beer on 12 May 2023;

(b) he deposed as follows:

I understand that the Plaintiff met with me after being recommended that he seek legal advice by his physiotherapist. When I first met with the Plaintiff and from my discussions with him, it was apparent to me that he is unsophisticated, uneducated and from a low socioeconomic status. The Plaintiff told me that he had lived a difficult life in the years prior to and since the transport accident, including periods of homelessness and incarceration. The Plaintiff instructed me that he had not previously sought any legal advice in relation to the transport accident and that he had only recently been told that there is a time limit for pursuing a common law claim.

(c) as to the steps taken by Prime Injury Lawyers to progress Mr Beer's claim (see paragraph 13 of these reasons);

(d) by reason of the TAC Time Limit Protocols, the relevant period of prejudice for the purpose of the current application ceased on 6 June 2023, when the notification form foreshadowing the serious injury application was lodged with the TAC;

(e) there is no record on the file held by the TAC ('TAC file') of Mr Beer being informed of the six year limitation period for bringing a common law claim;

(f) the TAC accepted Mr Beer's impairment benefit claim despite it also being well out of time; and

(g) he deposed as follows:

I do not believe the Defendant will suffer any general or specific prejudice if the Plaintiff is granted an extension of time. In support of this, I note the following:

(a) The transport accident was investigated by Victoria Police. The Police Brief includes a signed record of interview with the Defendant. The Police brief is available.

(b) The Defendant is alive and his whereabouts are known. The Defendant is 69 years old. Our office has written to the TAC to ensure it takes appropriate steps to minimise any potential impact should the Defendant experience ill health prior to trial.

(c) According to the Police investigation, there were no other witnesses to the transport accident, accordingly, all relevant parties are available to provide evidence at trial.

(d) The Plaintiff has remained known to the TAC. The TAC has continued to pay for treatment for the Plaintiff, including physiotherapy and GP attendances in 2023 and an Impairment Benefit in 2024.

(e) Upon my review of the current proceeding all the relevant medical records in relation to the transport accident are available.

(f) To date the TAC has not served any documents upon our office which indicate the TAC had advised the Plaintiff of his 6-year time limit prior to its expiration.

1. Mr Jackson exhibited to his affidavit, among other things, the police brief in relation to the traffic accident.
2. In her affidavit affirmed on 18 July 2025, Ms Broad deposed, in summary, as follows:

(a) searches done by the TAC show that Mr Beer was incarcerated in 2005, 2006, 2007, 2008 and 2009;

(b) on 13 July 2010, a claim was lodged with TAC on behalf of Mr Beer in relation to the traffic accident, probably by hospital staff, identifying Mr Beer's address as his late grandmother's home in Loch, Victoria;

(c) also on 13 July 2010, TAC sent Mr Beer a letter ('July 2010 letter') outlining how to make a claim with the TAC, which also enclosed a brochure which contained, among other things, information about making a common law claim;

(d) a file note made by a hospital social worker on 16 July 2010 refers to Mr Beer telling her about his injuries and seeking compensation and asking questions about legal aid;

(e) as to the dealings between the TAC and Mr Beer between 23 July 2010 and 25 July 2012, including a file note of a conversation between Mr Beer and a representative of TAC on 3 June 2011, which read as follows:

COMMON LAW: [Client] called enq how to sue vehicle at fault, I advised need to contact sols;

(f) on 27 January 2012, Mr Beer entered a plea of guilty to driving while disqualified on the date of the traffic accident, and was placed on a community corrections order, which, among other things, required him to undergo drug assessment and treatment;

(g) on 19 April 2012, Mr Beer was involved in another traffic accident, which required hospitalisation, but did not lodge a claim with the TAC;

(h) on 31 July 2012, Mr Beer's grandmother called the TAC and advised that Mr Beer was incarcerated at Sale prison, and expected to be released in March 2013. The TAC's representative informed Mr Beer's grandmother that the TAC file would be closed for the time being;

(i) on 29 August 2012, the TAC wrote to Mr Beer at his grandmother's address, stating, among other things:

Consideration of your possible entitlement to an impairment benefit

We understand that you are currently incarcerated, and are therefore not in a position to engage with the TAC in the impairment process.

Your possible entitlement to an impairment benefit will remain open. Should you wish to enquire about your possible entitlement to an impairment benefit upon your release, please contact the TAC.

Please note that any request for an impairment determination must be received by the TAC before the six year anniversary of your transport accident (date of six year anniversary is 25/06/2016).

(j) records show that Mr Beer was out of prison between early 2013 and early to mid 2014, when he was incarcerated again until about mid 2016;

(k) there was further engagement between Mr Beer's social worker and the TAC between December 2019 and January 2020. The TAC provided Mr Beer's social worker with various documents from the TAC file, following which the TAC file became inactive again; and

(l) Victoria Police records show that Mr Beer has been involved in nine traffic accidents between 2001 and 2021.

1. Ms Broad deposed as to the circumstances of the defendant, Mr Edhouse, as follows:

Mr Edhouse was born on 03 April 1956. At the time of the transport accident, he was 54 years of age. I am instructed that as at June 2010, he was employed as a concrete cutter. Part of his role involved driving a truck from job-to-job. Mr Edhouse worked as a concrete cutter for over 20 years. Thereafter, he worked for a company that set up the grand prix, and then worked manufacturing windows for some time.

Mr Edhouse is currently 69 years old. I am instructed that he retired at around the age of 66-and-a-half for general age-related reasons. He has diabetes and some physical injuries following a transport accident in April 2025.

Mr Edhouse's recall of the key aspects of the transport accident is fine. However, his memory of peripheral matters is average. For example: he cannot remember the weather conditions. More importantly, he cannot recall what was meant by "Light traffic, one car behind that was all". This was something recorded by police when he was interviewed by them on 14 November 2010 in relation to the accident.

The truck Mr Edhouse was driving at the time of transport accident was owned by his employer. He instructed me that he believes the truck would no longer be in the possession of his previous employer.

At the time of the transport accident, Mr Edhouse had a "full" and "valid" driver's licence. He did not have any prior convictions, specifically, no "Vic Roads" prior convictions.

Mr Edhouse was interviewed by Victoria Police in relation to his involvement in the transport accident. No charges were authorised in respect of his driving because the police officer was unable to determine who was at fault.

1. Ms Broad deposed as to the following issues arising from the delay in bringing this proceeding:

(a) this proceeding is listed for trial on 24 November 2025, and liability is firmly in issue. Mr Beer has given vague and somewhat conflicting accounts of the traffic accident over time, and in 2021, Mr Beer's treating general practitioner referred to Mr Beer having 'memory difficulties and difficulties with concentration';

(b) over the years Mr Beer has had legal representatives, including counsel, in relation to his various criminal matters;

(c) while the TAC granted Mr Beer's impairment benefit application in October 2024, the assessment of that application did not involve any assessment of liability issues; and

(d) Ms Broad deposed as follows:

The plaintiff has a complex medical history. His history involves a number of other transport accidents, some requiring hospital admission. In correspondence relating to a Disability Support Pension application dated 27 December 2019, the plaintiff's treating general practitioner, Dr Peter Lewis referred to the plaintiff having been involved in "2 serious motor bike accidents...". More recently, Dr Lewis wrote to the TAC on 17 May 2021 and again referenced the "2 major MVAs in 2010..." and advised that his attendances for treatment relate "to problems associated with the accidents".

Despite the parties being in possession of a lot of relevant medical material, the plaintiff's injuries relevant to the subject transport accident have not been monitored and assessed over the years because his claim has been inactive for significant periods of time. I anticipate that there will be some difficulty accurately isolating what is compensable after so many years given the complex history.

1. Ms Broad exhibited to her affidavit key documents from the TAC file, including letters, file notes, and claim forms, as well as documents provided by Victoria Police regarding Mr Beer's criminal history and involvement in traffic accidents.
2. On 31 July 2025, Mr Jackson swore an affidavit in reply to Ms Broad's affidavit, in which he deposed, in summary, as follows:

(a) he observed that the information brochure sent by the TAC to Mr Beer with the July 2010 letter makes no reference to any time limit for actions for common law damages;

(b) the file note of the conversation between Mr Beer and the hospital social worker in 2010 demonstrates that '[Mr Beer] has no knowledge of the process for seeking compensation under a Common Law claim';

(c) he otherwise responded to the statements made by and documents relied upon by Ms Broad in her affidavit; and

(d) he deposed as follows:

... the allegation that proposed Defendant will suffer prejudice "due to the passage of time" is refuted by the existence of the Police Brief which clearly sets out the accident circumstances, and includes a statement made to police by the Defendant shortly after the transport accident.

1. On 22 August 2025, Ms Brockway affirmed another affidavit exhibiting records regarding Mr Beer's incarceration history, from which she prepared the following chronology:

1. The above chronology shows that between June 2010 and May 2023 (a period of 155 months), Mr Beer was incarcerated for approximately 77 months, almost exactly half of that period, and also for approximately half of the six year limitation period.
2. In addition to the affidavit evidence referred to above, the parties also filed a joint application book, including, in addition to the pleadings and affidavits filed in this proceeding, the following documents:

(a) key correspondence between the solicitors for the parties, including correspondence regarding interrogatories and the trial date;

(b) the serious injury affidavit;

(c) documents concerning Mr Beer's successful claim for an impairment benefit;

(d) medical records relating to Mr Beer's injuries and treatment in the aftermath of the traffic accident; and

(e) clinical notes and reports from treating medical and allied health professionals and medico-legal experts prepared from 2021.

1. In the serious injury affidavit, Mr Beer deposed, relevantly, as follows:

(a) as to his medical history and injuries from other transport accidents;

(b) briefly, as to his criminal history;

(c) the injuries sustained in the traffic accident, and subsequent treatment;

(d) the physical consequences of his injuries, and

(e) Mr Beer deposed as follows:

I am making my TAC serious injury claim 13 years after the accident. I did not really know about TAC, and I did not know where to start with it all. I was too busy trying to cope with all of the pain and suffering. My grandma had told me what to do, but she didn't know where to start with it either. I am bad with the internet, and I struggle to read and write. I have been in and out of prison which also delayed things. I moved in with my dad in February 2023, and it is only now that I have been able to get the help I need to do this. My physiotherapist in Wonthaggi also suggested that I see a lawyer. I got in touch with Prime Injury Lawyers and spoke to Tim Jackson.

1. While each of the factors enumerated in s 23A(3) of the Act require consideration, the two critical issues in the current application are the credibility and reasonableness of Mr Beer's explanation for failing to issue this proceeding within the limitation period, and the prejudice to Mr Edhouse (and the TAC) by reason of the delay. The parties' submissions in relation to each of these issues are summarised below.

1. Mr Beer says that the primary reason for the delay in bringing this proceeding was his lack of comprehension of his right to bring a claim at common law, and any associated limitation period. He says that he did not appreciate the need to consult a solicitor until his physiotherapist suggested he do so. He is unsophisticated and poorly educated, struggles to read and write, and 'is bad with' computers and the internet. He has limited family and social support, and over the past two decades or so has been in and out of prison, and has experienced periods of homelessness as a consequence of family conflict.
2. Senior counsel for Mr Beer submitted that the evidence, in particular a neuropsychology report prepared by Ms Bronwyn Hall of Forensicare in February 2024 ('Hall report'), establishes Mr Beer's literacy to be at Year 9 standard.
3. Senior counsel referred to his unstable living circumstances, and noted that there is no evidence that Mr Beer ever consulted a solicitor about his entitlements arising from the traffic accident prior to May 2023.
4. Senior counsel submitted that there was no evidence that Mr Beer was aware of his specific rights and entitlements to claim common law damages during the limitation period. She referred to the brochure accompanying the July 2010 letter, and described the information provided regarding common law claims as being, to a layperson, 'gobbledygook'. There was no evidence that Mr Beer ever received or read the brochure. Further, the TAC file shows that Mr Beer asked the TAC representatives to explain things to his father, which was consistent with Mr Beer not understanding his entitlements.
5. Senior counsel acknowledged that a TAC representative advised Mr Beer on 3 June 2011 to call a solicitor, and noted that there was no further record on the TAC file for another year after that.
6. Senior counsel submitted that the communication between the TAC and Mr Beer's grandmother was significant, because it established that Mr Beer's father, who had authority to deal with the TAC on Mr Beer's behalf, was no longer involved. The correspondence sent after this call referred to a six year limit upon making a claim for impairment benefits, but there is no evidence that Mr Beer ever received or reviewed this letter given that he was incarcerated at the time.
7. Senior counsel referred to the communications between Mr Beer's social worker and the TAC in 2019 and 2020, particularly the social worker's queries about Mr Beer's entitlements, as evidence in support of the proposition that Mr Beer did not know what his entitlements were.
8. Senior counsel submitted that Mr Beer's evidence conveys the impression that Mr Beer was overwhelmed by what was going on in his life, including his injuries, his criminal matters, and his family relationships. His level of literacy and comprehension are poor, he lacked useful assistance, and there were six separate periods of incarceration.
9. Senior counsel acknowledged that Mr Beer has been able to sign affidavits in this proceeding while he has been incarcerated, but that has been in circumstances where he has a solicitor actively pursuing his interests.
10. In response, Mr Edhouse said that Mr Beer's contention that he did not know about his rights to make a claim at common law does not bear scrutiny, because the evidence of the interactions between Mr Beer and the TAC in the year or so after the traffic accident shows that Mr Beer was alert to the possibility of making a claim for compensation from the driver of the other vehicle, and that he did know, or should have known, that he should consult a solicitor. Further, the evidence shows that Mr Beer has been well aware of the severe impact of his injuries upon his life for many years, and is capable of making telephone calls and engaging with agencies where necessary. He has not been continuously incarcerated since the traffic accident, and in any event, prisoners can and do engage in litigation while incarcerated. He is not without any support, and in any event, the TAC compensation system is often navigated by unsophisticated and poorly educated claimants, including claimants with poor English language and literacy skills.
11. Counsel for Mr Edhouse submitted that 13 years is an inordinate delay in bringing proceedings, particularly in circumstances where Mr Beer knew that he had suffered injury as a consequence of the traffic accident, and that he believed Mr Edhouse was at fault. That is consistent with Mr Beer telephoning the TAC, asking about compensation and suing the 'at-fault' driver.
12. Counsel referred to the July 2010 letter and observed that Mr Beer followed the instructions contained in that letter to the letter. He has, perhaps with some assistance, completed the claim form. He has called the TAC to ask questions about compensation, and nominated people to act on his behalf. He was quite capable of understanding the role of the TAC and how to navigate the TAC system, and he was advised by the TAC on two occasions to consult a solicitor.
13. Counsel submitted that there is no explanation provided in the affidavit evidence as to why Mr Beer failed to take the next step and consult a solicitor, given that his evidence was that once he was told by his physiotherapist that he should contact a solicitor he was quite capable of taking that next step, and making the necessary arrangements.
14. Counsel submitted that the nature and severity of Mr Beer's injuries distinguishes the current case from circumstances where a plaintiff's functioning had improved or resolved for a period of time, causing them to put off making a claim.
15. Counsel submitted that the incarceration of the plaintiff does not explain the delay in consulting solicitors. There have been many periods during which Mr Beer was not in custody and had the opportunity to take steps to progress the matter. There is also no specific evidence about the logistical difficulties facing Mr Beer while he was in custody, noting that it is common knowledge that people regularly instruct solicitors while in custody. Mr Beer himself has had the capacity to instruct lawyers for the purpose of his criminal matters.

1. Mr Beer acknowledges that there is general prejudice arising from the delay in issuing this proceeding. However, he submitted that the evidence of specific prejudice relied upon by Mr Edhouse does not support a conclusion that the delay would cause any trial of this proceeding to be other than 'acceptably fair'. In particular, there are no witnesses that have been identified that are missing, or who have passed away. There are contemporaneous records concerning the traffic accident in the police brief, and all of Mr Beer's medical records are available to the parties.
2. Senior counsel for Mr Beer submitted that the liability issues in this proceeding are quite straightforward, given what occurred during the course of the traffic accident. Mr Edhouse was turning right, and failed to give way to oncoming traffic. There is no evidence to support the defence of contributory negligence, or any explanation of how that case is to be put at trial. There are no relevant documents missing, and all clinical records are available.
3. Senior counsel observed that there is no affidavit from Mr Edhouse deposing as to his memory (or lack of memory) of the traffic accident, just the opinion of his solicitor. The TAC has had an opportunity to medically examine Mr Beer, and has been able to assess and determine his impairment benefits claim.
4. In response, Mr Edhouse submitted, in summary, as follows:

(a) if the application is granted, witnesses will be required to give evidence about a traffic accident which occurred over 15 years ago;

(b) Mr Edhouse is a 69 year old retiree, and his memory of peripheral matters relevant to the traffic accident is 'average';

(c) Mr Beer has given varied accounts of the traffic accident, and his refusal to provide answers to interrogatories means that his ability to recall what occurred during the traffic accident remains unclear;

(d) the evidence shows that Mr Beer also suffers memory loss and mental health issues, which may affect the reliability of his evidence at trial; and

(e) Mr Beer has a complex medical history, having been involved in five collisions before the traffic accident, and three thereafter.

1. Counsel for Mr Edhouse submitted that to put a 69 year old retiree to the rigours of cross-examination regarding events which took place 15 years ago, is oppressive, and not just and reasonable. Further, the level of scrutiny which needs to be given to a common law damages claim is greater than what is required for assessing an impairment benefit claim, which is done in a no-fault context.

1. The parties also made submissions regarding the balance of the relevant factors under s 23A(3) of the Act. Mr Beer submitted as follows:

(a) in relation to s 23A(3)(c), Mr Beer does not recall the TAC ever writing to tell him about his entitlements;

(b) in relation to s 23A(3)(d), Mr Beer's level of disability arising from the traffic accident are significant and persistent; and

(c) in relation to ss 23A(3)(d) and (e), Mr Beer acted promptly to seek advice from Prime Injury Lawyers after he spoke with his physiotherapist.

(a) in relation to s 23A(3)(c), there has been no failure by the TAC to make available to Mr Beer information relevant to his common law claim, and the TAC advised him to speak to solicitors in 2010 and 2011. The TAC informed Mr Beer about the six year time limit for making an impairment benefits claim in August 2012;

(b) in relation to s 23A(3)(d), no question of legal incapacity arises in this application;

(c) in relation to s 23A(3)(e), the evidence shows that Mr Beer did nothing for 13 years, despite believing from the time of the traffic accident that Mr Edhouse was at fault, and knowing that the consequences of his injuries were serious; and

(d) in relation to s 23A(3)(f), Mr Beer took no steps to obtain legal advice about his potential claim until 2023, despite having been told by the TAC to engage a solicitor and having had legal representation for his criminal cases.

1. In my view, having regard to Mr Beer's personal attributes and circumstances and consequent lack of comprehension of his rights and any limitation on those rights, and given that the prejudice to Mr Edhouse's ability to fairly defend the claim against him caused by the delay in issuing this proceeding is relatively modest, I have concluded that it is just and reasonable to extend the limitation period.
2. I accept that there are aspects of Mr Beer's explanation for failing to consult a solicitor or issue a proceeding in a timely fashion which are puzzling, and somewhat difficult to reconcile with the letters and file notes on the TAC's file. However, this explanation has to be viewed in the context of Mr Beer's personal attributes and circumstances. Mr Beer had a troubled childhood, has been poorly educated, and, apart from working upon the family dairy farm until the traffic accident, has never been in formal employment. His adult life has been punctuated by drug addiction and spells of incarceration and homelessness. The medical reports in evidence suggest that Mr Beer's mental health is not good, and, while I accept that there may be other factors contributing to his pain symptoms and physical disability other than the injuries in the traffic accident, it is clear from this evidence that he is in poor physical shape. Indeed, what is conveyed by the evidence is a portrait of a gentleman who is poorly equipped to make anything other than poor choices in difficult and somewhat chaotic circumstances. Accordingly, in the context of the current application, his conduct should not be judged by the same standards which might apply to others in the mainstream of the community.
3. I accept that the documents on the TAC file show that Mr Beer had some understanding that he might be entitled to compensation of some kind in connection with the traffic accident, that the TAC told Mr Beer on at least one occasion that he should consult a solicitor, and that if he had done so, he would almost certainly have been informed of his entitlements well within the limitation period. However, given the evidence regarding Mr Beer's personal attributes and his living situation over the years, the evidence from the TAC file does not cause me to disbelieve Mr Beer's evidence that he did not know about his rights to bring a common law claim, and any associated limitation period. He was available to be cross-examined by Mr Edhouse regarding his knowledge of his entitlements and his communications with the TAC, but Mr Edhouse declined to take that opportunity.
4. Turning first to Mr Beer's personal attributes, the Hall report provides a useful insight into Mr Beer's personal, educational, and medical history, and his capabilities. While this report was prepared in early 2024, many years after the expiry of the limitation period, the Hall report does narrate Mr Beer's history, and some attributes referred to are unlikely to have altered significantly over time.
5. The Hall report reported upon the outcome of various tests administered to Mr Beer, which measured pre-morbid intellectual function, general intellectual functioning, verbal comprehension skills, perceptual/visual intellectual and reasoning skills, attention, working memory and basic information processing speed, new learning and memory, executive functioning, basic numeracy and literacy, and psychological distress. Mr Beer's results in relation to each of these metrics (save for psychological distress, which was assessed separately) ranged between 'low average', 'borderline', and 'extremely low'.
6. Ms Hall concluded as follows:

Overall, there is no clear indication that Mr Beer sustained an acquired brain injury from the MVA in 2010. The medical records regarding this event indicate that, although Mr Beer did sustain a head injury with a brief period of altered consciousness (lowest GCS was recorded as 13/15), there was no evidence on imaging of intracranial injury. Further, he does not appear to have experienced any period of post traumatic amnesia. In this context, it is likely that Mr Beer experienced only a mild concussion type injury from this event, the symptomatology of which could be expected to resolve within a few months of the event. With that said, he did sustain other significant injuries, experiences chronic back pain, and reports ongoing symptoms consistent with PTSD (e.g., nightmares) related to this event.

More broadly, there is limited evidence that Mr Beer has sustained an ABI from any other cause. Instead, his circumscribed weaknesses on testing can be most strongly linked to his clear depressive symptoms, on a background of interruptions to formal education, which he ceased in Year 9. Mr Beer's self-reported memory difficulties can be linked to his depressive symptoms, which have been exacerbated in recent times by conflict with his father, and death of his grandmother with who he was close. He experiences slowed speed of thinking secondary to his mental illness, which impacts his ability to initially encode information, particularly as volume and complexity of information increases. It is also possible that symptoms related to underlying PTSD are further affecting his cognitive abilities. Repetition of information, and use of visual cues, significantly improves his ability to learn and remember to within normal limits. Positively, Mr Beer has the potential to experience improvement in his cognitive symptoms through engaging in psychological intervention, and he retains the cognitive capacity to participate in the same, with modifications to pace of sessions.

1. Also instructive were Ms Hall's recommendations for people working with Mr Beer, as follows:
   • Ensure you have Mr Beer's attention and engagement before communicating important information to him.
   • Ensure that information provided to him (e.g., questions and instructions) is delivered at a reasonable pace (i.e., do not rush).
   • Overall, it will be best to present information slowly, and one idea at a time. Work tasks through until completion before a new discussion topic or task is commenced. Break down complex information into smaller, more meaningful units.

• Provide him with extra time when completing tasks.

• Mr Beer will benefit from being provided with gentle encouragement when he is feeling overwhelmed.
• Mr Beer experiences impaired verbal abstract reasoning skills. As such, it will be best to use simple, concrete language when communicating with him. Avoid the use of overly complex language, and limit ambiguities, idioms and analogies that could be misunderstood.

1. The recommendations above suggest that Mr Beer requires substantial assistance in navigating systems such as the TAC compensation system.
2. Ms Hall associates some of Mr Beer's deficits with his severe depressive symptoms, and there is no contemporaneous evidence that Mr Beer suffered from depression during the limitation period. However, a medico-legal report prepared for the parties after a psychiatric assessment records Mr Beer's report of having suffered from depressive symptoms ever since the traffic accident.
3. Accordingly, the evidence confirms that Mr Beer was poorly equipped to navigate the TAC compensation system without a substantial amount of assistance. The evidence shows further that after he left hospital, he did not have access to such assistance. He relied upon his father and grandmother to liaise with the TAC on his behalf, but they did not do so in any meaningful or useful way. His evidence that he did not understand his entitlements is corroborated by documents on the TAC file which record a social worker's attempts to obtain further information about his entitlements in 2019.
4. The evidence, including the evidence of Mr Beer himself, his reports to treating and medico-legal medical and allied health professionals, and the records of Mr Beer's interactions with the criminal justice system ('Corrections Victoria records') shows Mr Beer's living circumstances during the relevant period were quite unstable, indeed, quite chaotic.
5. The Corrections Victoria records show that in the period between the traffic accident and the expiry of the limitation period Mr Beer had 15 court appearances, and a further 16 court appearances in the following seven years. Further, the Corrections Victoria records show that while Mr Beer was in custody within the limitation period (a total period of approximately three years) he was transferred between prisons on seven occasions, he was hospitalised on three occasions, there were many, many unit transfers, and he seems to have spent a considerable period of time in protective custody. In the seven year period after the expiration of the limitation period, during which he spent approximately three and a half years in custody, he was transferred on seven occasions, hospitalised on three occasions, and spent further periods in protective custody, although the transfer between units seemed to be less frequent than during the limitation period.
6. This is not then a situation where Mr Beer was charged with a single offence or set of offences, and imprisoned for a lengthy period of time in the one institution. If that had been the situation, then Mr Edhouse's submissions to the effect that while in custody Mr Beer would have been able to make enquiries and engage with solicitors may have carried more force.
7. Further, while there is not precise evidence as to Mr Beer's living arrangements after the traffic accident, it seems that he spent some time living with his father in Warragul, some time living with his grandmother at the family dairy farm in Loch, and was homeless for periods of time. That is, the disruptive effect upon Mr Beer's life by moving in and out of prison was unlikely to have been substantially alleviated by his experiences while not in custody.
8. Accordingly, for all of the reasons set out above, I accept that Mr Beer's explanation for not bringing his claim arising from the traffic accident is plausible and reasonable. This weighs in favour of granting his application for an extension of time.
9. As for the question of prejudice, I accept that there is necessarily prejudice caused by the passage of time. However, in the circumstances of this particular proceeding, I do not consider that any such prejudice warrants a conclusion that Mr Edhouse is unlikely to be able to fairly defend Mr Beer's claims in the proceeding at trial. There is a reasonable amount of contemporaneous material available regarding the traffic accident and Mr Beer's injuries and treatment, and there is no evidence that there are any documents which were in existence in the past that have now gone missing. There is ample clinical and medio-legal evidence regarding Mr Beer's injuries and treatment available. Both Mr Beer and Mr Edhouse are available to give evidence, and there were apparently no other witnesses to the traffic accident.
10. While the issues associated with liability (including contributory negligence) and causation involve some complexities, it is difficult to see how the passage of time would have materially increased their complexity.
11. To explain further, any complexity concerning the liability issues in this proceeding arises from the limited account Mr Beer has given regarding the traffic accident at the time of the traffic accident. To the extent that the reliability of any account of the traffic accident given by Mr Beer is impeded by memory failure by reason of the passage of time, that will rebound upon Mr Beer, not Mr Edhouse.
12. Further complexity is said to arise from the assorted need to disentangle the consequences of the injuries suffered by Mr Beer as a consequence of the traffic accident and those suffered as a consequence of his involvement in other motor vehicle collisions. However, assuming for present purposes that there are some complexities in connection with causation, I cannot see how Mr Beer's delay in issuing this proceeding would have materially prejudiced the ability of Mr Edhouse to grapple with those complexities.
13. The police reports regarding the motor vehicle collisions in which Mr Beer has been involved are in evidence. Three of these incidents took place prior to the traffic accident, and one less than two years after the traffic accident, that is, before one might expect a trial of this proceeding to have been held even if the proceeding had been issued promptly. The police reports reveal the following:

(a) no person was reported injured in the collision which took place in July 2005;

(b) Mr Beer was taken to hospital after the collision which took place in January 2007, but the nature of any injuries were not described in the report;

(c) Mr Beer was taken to hospital with a fractured knee following a collision in December 2009; and

(d) Mr Beer was taken to hospital following a collision in April 2012.

1. Since the expiry of the limitation period in June 2016, Mr Beer has been involved in two reported motor vehicle collisions. The police report of the collision in September 2017 recorded that Mr Beer was taken to hospital for observation after complaining of a sore back and left leg, but that no one was injured. No injuries were reported as a consequence of a collision in August 2021.
2. Accordingly, while further investigations may need to be carried out as to whether the motor vehicle collision in September 2017 caused or aggravated Mr Beer's back or leg pain, the additional complexity of the causation issue resulting from Mr Beer's delay in issuing this proceeding is relatively modest. Any complexity resulting from the majority of Mr Beer's motor vehicle collisions would have had to be dealt with even if this proceeding had been issued within time. Further, while I accept that an evaluation of a common law claim is a more complex matter than assessing a claim for an impairment benefit, it is noteworthy that the TAC has been able to make the necessary assessments to grant Mr Beer a serious injury certificate and an impairment benefit reasonably promptly once in possession of the relevant medical material.
3. Accordingly, the question of actual prejudice does not loom as large in the current case as it might in others.
4. Finally, while I accept that applications of the current kind do not involve a mechanical or mathematical 'balancing' of the prejudice to each party, in determining whether it is just and reasonable to extend the limitation period, I am mindful of the substantial nature of this claim. It is correct to say there may be issues with liability and causation, and no claim is made by Mr Beer for economic loss. However, given the nature and severity of Mr Beer's injuries (noting that the TAC has assessed him as having a whole person impairment of 40 percent), and the impact of his injuries upon his quality of life, one would expect that if liability and causation issues are determined favourably to Mr Beer, any award of general damages would be substantial, and, given that he has been on a disability support pension ever since the traffic accident, any award of damages would have a significant positive impact upon his financial position, and ability to obtain secure housing once released from custody.
5. As indicated earlier in these reasons, the two critical issues in this application were the adequacy of the explanation provided by Mr Beer and the prejudice to Mr Edhouse resulting from the delay, both of which have been resolved in Mr Beer's favour. However, for completeness, I will briefly address the remaining factors referred to in s 23A(3) of the Act.
6. Turning first to s 23A(3)(c), I do not consider that provision is directed at the question of whether the TAC was under any obligation to inform Mr Beer of his rights to bring a claim at common law, or of any relevant limitation periods. Rather, the provision seems to be directed to the question of whether the defendant, or those representing the defendant, had impeded or facilitated Mr Beer's ability to obtain relevant information about his claim against Mr Edhouse. Accordingly, this provision does not raise any relevant consideration in the current application.
7. Turning now to s 23A(3)(d), while I accept that Mr Beer is not suffering under any legal disability, I have taken into account Mr Beer's physical and mental health conditions when assessing the adequacy of his explanation for the delay in issuing this proceeding. However, those disabilities of themselves are not determinative of the matter.
8. Turning now to s 23A(3)(e), I accept that Mr Beer understood at an early stage that he had suffered serious injuries, and that he believed that Mr Edhouse was at fault. However, I have accepted Mr Beer's explanation that he did not have an understanding of his rights to bring a common law claim until he consulted Mr Jackson in May 2023, following which he acted with reasonable expedition.
9. Turning finally to s 23A(3)(f), Mr Beer took very limited steps to take advice from the TAC in 2011 and 2012, and took no action to comply with that advice. It seems he relied upon his father and grandmother to seek advice on his behalf, and they did not do so in any meaningful or effective way.
10. Accordingly, consideration of the other relevant factors in s 23A(3) of the Act tends to weigh against the grant of the application to extend the limitation period. However, as explained earlier in these reasons, the critical issues in this application are the adequacy of Mr Beer's explanation for the delay in bringing this proceeding and the extent of any prejudice to Mr Edhouse's ability to defend the proceeding. Mr Beer's explanation for the delay is less than completely satisfactory, but is understandable given his personal attributes and circumstances. The prejudice to Mr Edhouse is real, but is relatively modest, and there is no evidence of any prejudice of the kind which would usually be fatal to applications of the current kind, such as missing witnesses or lost documents.
11. Limitation periods are important. But provisions such as s 23A of the Act reflect the recognition by Parliament that in certain circumstances, it is appropriate to grant relief from the harsh consequences of the strict enforcement of limitation periods. In my view, this is a case where such relief should be granted. Having regard to all of the relevant circumstances, it is just and reasonable to extend the limitation period.

[1] [2022] VSCA 212.

[3] [2022] VSCA 212.

[5] [2016] HCA 37; (2016) 258 CLR 134.

[7] [2018] VSCA 248.