Stone v Transport Accident Commission [2023] VCC 656 (1 May 2023)

Last Updated: 1 May 2023

 

 

Case No. CI-21-01054

 

 

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REASONS FOR JUDGMENT

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Subject: TRANSPORT ACCIDENT – LIMITATION OF ACTIONS

 

Catchwords: Serious injury – right upper limb impairment – range – credit

Extension of time – prejudice

 

Legislation Cited: Transport Accident Act 1986, s93; Limitation of Actions Act 1958, s23A

 

Cases Cited: Hayes v Transport Accident Commission [2010] VSCA 104; Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452; Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129; Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie [2000] VSCA 50; (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; (2010) 31 VR 1; Ward v Transport Accident Commission [2021] VCC 853; Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit [2016] VSC 453; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Prince Alfred College Inc v ADC [2016] HCA 37; [2016] 258 CLR 134; Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44; Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114; Transport Accident Commission v Murdoch [2020] VSCA 98; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Murdoch v Transport Accident Commission [2019] VCC 1137; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Lovejoy v Carp [1999] VSC 223; Millard v Transport Accident Commission [2006] VSCA 29; Bell v SPC Ltd [1989] VicRp 15; (1989) VR 170; Delai v Western District Health Service & Anor [2009] VSC 151

 

Judgment: Leave granted to bring proceedings for damages. Extension of time application dismissed.

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HER HONOUR:

Background

1. On 17 March 2021, the plaintiff’s solicitors filed an Originating Motion in proceeding CI-21-01054 (“the first originating motion”) seeking leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings for  personal injury  sustained in a transport accident on 29 September 1991 (“the accident”). Further, an order was sought that the period within which an action on the cause of action may be brought be extended for such a period as it determines pursuant to s23A of the Limitation of Actions Act 1958 (“the LAA”).
2. On 1 March 2022, the plaintiff amended the first originating motion, deleting the application under the LAA. The amended originating motion was served on the defendant in June 2022.
3. The hearing of this matter commenced before me on 6 December 2022 (the earlier hearing”), when Mr Winneke KC, with Mr P Santamaria, appeared on behalf of the plaintiff, and Mr W R Middleton KC and Ms K Manning appeared on behalf of the defendant.
4. As a preliminary point, counsel for the defendant indicated the defendant wished the s23A application to be heard together with the s93 application. At that stage, there was limited reference to any explanation for delay or other matters relating to an extension of time in the plaintiff’s affidavit.^[1]
5. Having indicated my preliminary view that the extension of time application could not succeed on the current material, counsel for the defendant submitted the defendant’s position was so strong under the Civil Procedure Act 2010 (“the CPA”), it would be futile to give the plaintiff opportunity to put in any material supporting the s23A application. It was submitted it was an abuse of process in circumstances if the plaintiff succeeded on serious injury and there was then an order for costs.^[2]
6. Counsel for the defendant advised there had never been any intention on the defendant’s behalf that it was not taking the limitations defence.^[3]
7. Counsel for the plaintiff indicated it was the first the plaintiff had heard about this issue. The plaintiff’s position was there was no point making an application to extend time until after leave was granted and her solicitors had acted accordingly.^[4] Following their knowledge of this practice, the plaintiff’s solicitors simply amended the first originating motion and filed the amended originating motion in March this year. It was an internal amendment and served in June 2022, with the s23A application deleted.^[5]
8. If it had been suggested earlier that both applications be heard together, counsel for the plaintiff stated something could have been done about it. It was conceded the plaintiff’s solicitors always knew the limitations issue was live, however, they did not think the extension of time application was to be heard that day, and there had been no discussion with the defendant in this regard.^[6]
9. I indicated I was not prepared to hear the serious injury application alone and would rather hear both applications at the same time, after the plaintiff had filed appropriate material in support of the s23A application.^[7]
10. Counsel for the defendant indicated the first originating motion was served on 3 March, probably 2021.^[8]
11. The defendant relied on Hayes v Transport Accident Commission,^[9] where the Court of Appeal found it was quite appropriate for the trial judge to have determined both the leave and limitations application at the same time. Counsel also referred to the decision in Alcoa of Australia Ltd v McKenna^[10] where leave was refused on the basis the application was hopeless.^[11]
12. The matter was adjourned for the two applications to be heard together and for further affidavit material to be filed. Following a costs argument, I reserved both parties’ costs.^[12]
13. On the resumption of the hearing on 2 March 2023, the same counsel were briefed by the defendant but on this occasion, Mr P Hayes KC replaced Mr Winneke KC, and Mr Santamaria remained junior counsel for the plaintiff.
14. At the commencement of the resumed hearing, counsel for the plaintiff opened that there were two applications before the Court.^[13] In the s93 application, counsel indicated he was instructed to proceed with the right elbow application only, and the applications relating to the pelvis and lower back were withdrawn.^[14]
15. After the completion of the plaintiff’s viva voce evidence, counsel for the plaintiff advised there was a further submission in relation to the LAA application he had not opened on which he apprehended was touched upon on at the earlier hearing.^[15]
16. The submission would be that an application under the LAA for an extension of time could only be made in relation to “an action for damages”. Until leave was granted under s93, there was no action for damages. It was therefore premature to hear the LAA application before a serious injury certificate was granted.^[16]
17. At the earlier hearing, when I advised the parties that I proposed to hear both applications together and that the plaintiff’s s23A material was then deficient, counsel for the plaintiff did not make any submission in these terms.^[17]
18. Counsel for the plaintiff, on the adjourned date, conceded he was not fully alive as to what happened previously when he opened the case the preceding day, but, in light of the evidence, much of the thrust of his submission would be on this point that he regretted not opening on.^[18]
19. The Court was not advised at this stage that the first originating motion had not been served.^[19] That became apparent at the end of the submissions by counsel for the defendant^[20] and was taken up by the plaintiff’s counsel at the commencement of his submissions as a “form of process” issue.^[21]

The serious injury application

20. This is an application brought by an originating motion for leave pursuant to s93(4)(b) of the Act to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 29 September 1991 (“the accident”).
21. The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

22. The definition of “serious injury” primarily relied upon by the plaintiff ^[22]was under s93(17)(a):

“Serious long term impairment or loss of a body function.”

23. The body function is the right upper limb/elbow only.^[23]
24. In forming a judgment as to whether the consequences of an injury are “serious”:

“… the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked.”^[24]

25. The enquiry under sub-paragraph (a) focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
26. The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.
27. The injury will be considered a physical injury under the Act if it is predominantly the product of an organic physical condition.^[25]
28. The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s evidence

29. The plaintiff’s first affidavit sworn in June 2022 dealt mainly with the s93 application but made brief reference to her explanation for not bringing proceedings within time.^[26]
30. She is currently fifty-four, having been born in September 1968. She has two adult children.
31. Having completed Year 11, she obtained a job at an insurance company as a mail clerk, then obtained a job at Slater and Gordon as a law clerk, where she worked for two years in worker’s compensation. By the said date, she was working for the insurer, FAI.
32. Before the accident, she was in very good health. She once hurt her back falling out of a caravan but did not suffer any long-lasting injury.
33. As a teenager, she began to smoke marijuana, which she had done on and off for much of her life. She had tried heroin, but was not using as at the time of the accident.

The accident

34. On the said date, aged twenty-three, she was a pedestrian on Springvale Road, Nunawading with her partner, Jamie. She had been drinking a bit that day and had stepped out onto the road to hail a taxi.
35. She was waving down the taxi when she saw a car coming at her from the other direction. It was terrifying and she could not get out of the way, but she did not remember much about it beyond that, except lying on the road after she was run over, and an ambulance attending and taking her to the Box Hill Hospital.
36. Apparently, it was an off-duty police officer that hit her, and the police later alleged that Jamie had pushed her out onto the road, which was not true. Jamie was behind her on the sidewalk. He was locked up for a time, but he had nothing to do with it.
37. The Claim Form set out the accident occurred on 29 September 1991, which was a Sunday at approximately 10.00pm.
38. The Incident Report set out the light conditions were dark, with the streetlight on. The registration number of the vehicle involved was CSQ 376, owned by Julio Rubina. The vehicle was going straight ahead. The pedestrian was standing on the carriageway.
39. At Box Hill Hospital, the plaintiff learnt she had received many injuries, including a broken right elbow, a broken pelvis in many places, a broken coccyx, a dislocated left shoulder and some internal cuts on her liver.
40. She was in Box Hill Hospital for about two weeks, during which time she had surgery on her right elbow when wires were put into the joint to hold it in place. She was also in traction most of that time to assist with the recovery of her pelvis.
41. She then stayed in Bethesda Hospital for rehabilitation until November 1991.
42. She had a fall after she came out of Bethesda and dislodged the wires in her elbow and had to go to Emergency to have them put in place, and eventually had them out. She thought she went back to Bethesda to have the wires put back in place in early 1992, when Mr Dooley operated.^[27]
43. As far she could recall, she spent the first few months of 1992 just recovering from, in particular, her right elbow and pelvis, and she was doing rehabilitation and hydrotherapy then. Her anxiety levels did not improve over that time.
44. She saw Mr Dooley again in 2018, with up-to-date scans, to seek advice on her elbow and pelvis injuries. He advised against surgery because she would lose range of movement but, at a later date, she may need keyhole surgery to her right elbow.
45. She eventually tried to get back to work at FAI in the middle of 1992, but did not last long, because of the physical pain she was experiencing at work and her anxiety around cars and traffic.
46. She thought she used heroin once or twice during that time, which helped her take her mind off her pain, but stopped before she had her daughter, Laura, in 1993.
47. She knew about applying for compensation because she had been working in insurance companies. She knew that she could probably apply to someone for some compensation but it was easier to just put it out of her mind. She also thought if she had been given an amount of money, she might have spent it on drugs.
48. When she had Laura in 1993, it put a temporary stop on her thinking about her injuries and seeking compensation, and she stopped trying to find work. She had Jack in 2001, and raising two children, did not pursue any further treatment for her elbow and pelvis. The latter seemed to have got a bit better, although her elbow pain had never really settled, and she had basically learnt to live with it.
49. She also continued to experience some general anxiety and first saw a counsellor at Eastern Access Community Health in about 1994. She saw the counsellor on and off for about twelve years.
50. Other than that, she self-medicated, mainly with marijuana, but not when raising her children. From memory, over the years, she never stopped taking painkillers like Panadeine Forte and Valium, which she usually got from Dr McDonald at East Ringwood Clinic. She used ice for a short period before the pandemic, but does not do that anymore.
51. In about 2011, when Jack was a bit older, she obtained a job at Box Hill Hospital in the Health Information Department, part time a few days a week, and eventually full time. She managed that work for a few years before it became overwhelming, and she could not keep doing it. She was stressed and anxious and eventually had to give up in 2015 and had not worked since. She brought a WorkCover stress claim, but that was not accepted and ultimately went nowhere.
52. After she left that job, she was living alone in a commission flat, tried to stop taking as much pain medication, and noticed that things were getting on top of her, which made her more anxious.
53. She saw a charity organisation, Wesley, because of her financial concerns, and someone there suggested she see Dr Bronwyn Alder at Croydon Medical Centre. She then became the plaintiff’s general practitioner.
54. In around 2015, the plaintiff’s elbow pain started to increase, and she mentioned that to Dr Alder. She thought Dr Adler also provided her with ongoing painkillers, like Panadeine Forte and Endone.^[28]
55. The plaintiff did not do anything about her legal rights. She did not know she had any rights until she first saw Henry Carus, after Dr Alder had suggested she see him.^[29] A doctor told her a long time ago about stabilisation.^[30]
56. She thought she started to see psychologist, Dr Garth Phillips, in about 2018, because after she finished up at work, she was living alone, and her anxiety was increasing. Dr Phillips also thought she might have some depression and, as at the time she swore her affidavit, she spoke to him every couple of weeks on the phone.
57. In 2018, her elbow and pelvic pain really started to overwhelm her, and Dr Alder organised for her to see Mr Dooley. He remembered her and thought her elbow had probably gotten worse over time with arthritis, but there was probably no reason yet to operate.
58. It was correct, as she had deposed, that her elbow pain had never really settled, and she had constant pain from the time of the accident. It had gotten worse by 2018, when she saw Dr Adler. The type of pain changed to an aching, and it was hurting more, and longer.^[31]

Pain and suffering consequences- June 2022

Pain

59. Her elbow had always given her pain and it started to get worse over the last five or ten years, but she did not know why. When she sits down and helps herself into a seat, it clicks and hurts. The pain is an ache but can sometimes be a bit sharper. Sometimes she has numbness down her right arm towards her hand. She used to have much better dexterity in her fingers, which she has noticed because of difficulty doing handy work. She used to be a very neat writer, but now her handwriting is really messy, as she finds it much harder to control a pen.
60. She can still move her elbow up and down normally, but her joint feels much slower and she finds she cannot straighten it fully, at least not without pain. Overall, she thinks her right elbow is about 25 per cent compared to her left in terms of strength in movement and pain.
61. Her pelvis seems to have gotten worse over the last five to six years, although it has given her difficulty since the accident. She has always felt soreness and slowness in that joint, and that has meant she has had to avoid doing sport or running, or very physical activities. With prolonged standing she is in pain. If she is doing something like chopping vegetables, she sits down to rest her elbow as well. Both her pelvis and elbow ache a lot more in cold weather.
62. In the early years, the physical pain was very difficult for her, as she had to bring up her children and look after them, but she just pushed through. She was disappointed she could not be involved in their activities.
63. For a long time since the accident, she had suffered from anxiety. She thought that became worse when she was at home and in pain, mainly from her elbow, but also her pelvis.
64. She could remember, after the accident, being much more scared and nervous outside, particularly around traffic and lots of people. Over the years, she has grown used to just staying at home and avoiding public situations which make her nervous. Over the years, she avoided going to a party or the pub with friends, making her more isolated. She was also terrified she might re-injure herself if someone pushed her on public transport. That was one of the reasons she thought she found it hard to get fully back to work after the accident.
65. Shortly after the accident, she began to really struggle in social situations. She had enormous trouble balancing medications for her pain.
66. She wanted to be involved more in her young children’s lives, and the idea of not being able to do so like a normal person is depressing.
67. The nervousness about hurting herself also impacted on what she could do with her children, as she was scared to play sport with them.
68. She did not think she had driven since she had the children. Being on the road made her too anxious. Her partner drove around if she needed to do anything. He has noticed her mood.
69. She has always had trouble with jobs around the house and does not mop the floors. She finds it easier to get down on her hands and knees to do gentle scrubbing. She starts to vacuum early in the morning and does it bit by bit.
70. She cannot write that well anymore which she had previously found was a way she cold deal with her anxiety and pain.
71. Sleep is never any good these days because of her pelvic pain and if she turns on her right side, her elbow hurts. She wakes up multiple times during the night and is exhausted by the next day. She has no motivation.
72. When the weather is warmer, she tries to go out and do something, like have a walk, but if she has not slept, or it is really cold, she often finds it difficult to leave the house. If she can, she does hydrotherapy at Croydon Aquatic Centre. In the pool, in the warm water, it feels like she is not broken. When she has not been in the pool for a while her elbow gets even more sore.
73. Before the accident, she had been involved in sport most of her life. Her friends started a netball team after the accident, but she was not able to participate and she felt very lonely and left out, because they were all close friends.
74. Her injuries, especially physical, had also had a significant impact on her relationships, including sexual relationships and her libido. It is embarrassing for her to talk about, but it has been constant and very upsetting over the years.
75. Before the accident, she really enjoyed both working in the law firm and the insurance company. She was often told she was a good employee and enjoyed being busy. After the accident, she quickly became much more withdrawn and isolated and found it very difficult to go into the city or around traffic.
76. She is really scared her pain and restriction is only going to get worse as she gets older. She hates the idea of being confined to the house and not being able to see her kids if they want to meet with her.
77. The accident significantly impacted her entire life. When she left hospital in 1991, she could never imagine the impact this event was going to have on her life. It changed the course of her life and who she is permanently. She wishes there was more she could do to turn things around. Over the years, it has made her depressed. She has learnt to live with what she has and not feel too sorry for herself, but she cannot help but feel sorry for the kids.
78. There was very limited cross-examination relating directly to the s93 leave application. Those matters were also relevant to her knowledge of the extent and nature of her condition.
79. The plaintiff was told she could not make a claim until her injuries had finalised. She was taking drugs due to pain and was told she could not make a claim until her injuries had stabilised, and they had not.^[32]
80. She thought her doctor had told her she could not make a claim until her injuries had stabilised, but she could not remember which doctor, but it might have been Dr Blake, her childhood doctor at Blackburn.^[33]

The Plaintiff’s medical evidence – treaters

81. Box Hill Hospital records on the said date set out:

“Pedestrian struck by car travelling at 45-50 k/ph. Hit on [right] side. Accord to ambulance notes. ?? LOC unable to recall nature of accident. States she had been drinking alcohol all day, also took 2 x serepax / ? ½ Rohypnol & smoking marijuana.

On arrival : conscious, alert.

Complaining of pain in [right] elbow, [right upper extremity], [right] loin, pelvis.”

(sic)

82. While there were no radiological reports available from Box Hill Hospital following the accident, a consultation note dated 30 September 1991 referred to an x-ray of the plaintiff’s right elbow which was reported to reveal a “compound # R ulna”. A pelvis x-ray revealed a fractured superior pubic ramus and a fractured acetabulum. A CT of the plaintiff’s abdomen revealed “Laceration liver R post-lat, contained by capsule. No free intraperitoneal fluid sac. Spleen, kidneys, pancreas NAD”.
83. The plaintiff was an inpatient at Bethesda from 9 October until 12 November 1991. A discharge summary from the Hospital dated 22 November 1991 noted the following injuries:

“1. Fractured (R) olecranon – internally fixed 30.9.91

2. 2. Fractured (R) acetabulum – managed with skin traction.
3. 3. (L) acromioclavicular dislocation
4. 4. Lacerated liver
5. 5. Renal haematoma.”
84. The plaintiff was admitted to Western Hospital on 11 September 2003, with the principal diagnosis being poly-substance dependence. She was then thirty-four and referred by her local medical officer for inpatient detox from amphetamines, speed and ice, and also benzodiazepine.

Main Medical Centre, Croydon Medical Centre

85. In his July 2022 report, Dr Atheel Badir noted the plaintiff first presented to Croydon Medical Centre on 29 May 2015, where she was treated by multiple doctors.
86. Based on the previous notes and imaging reports, the diagnosis was right elbow and pelvis pain. In the right elbow pain, the diagnosis of severe osteoarthritic and degenerative changes, loose bodies inside the joints, multiple osteophytes and bone irregularity and persistent joint effusion and inflammation.
87. The plaintiff was also diagnosed with pelvis pain, left shoulder pain and lower back pain. There were multiple vertebral fractures in keeping with traumatic injury.
88. There was strong evidence that the plaintiff’s anxiety and medication dependence had been a consequence of her chronic pain and injury in the accident.
89. Dr Badir detailed the plaintiff’s medication and treatment. Since he regularly became involved in her treatment in 2020, he had been treating her with regular opioid-based analgesia, Panadeine Forte, Diazepam, regular neuropathic pain medication, Lyrica, and antidepressants.
90. In his view, there was no cure for the plaintiff’s condition and her pain and anxiety would continue for the rest of her life. He recommended that she should continue all sort of therapy for as long as possible to maintain her function and limited capacity so she could continue to live independently.
91. At the moment, the plaintiff had a very limited capacity, and she was barely able to maintain her house duties, including cleaning, cooking, shopping when needed and maintained her own personal care. Recreationally, she enjoyed some television watching and walked for short distances around the park.
92. Given the magnitude of the plaintiff’s ailment, he could never see her ever being employed in any meaningful employment. Her prognosis was poor.
93. Dr Badir reported in July 2022, noting the plaintiff first presented to him on 20 February 2019 for ongoing pain management of her multiple sourced pain since the accident.
94. The clinical picture of the plaintiff’s ailment was fragmented over multiple consultations over time, as he was not the only doctor looking after her, but the conclusion was that she had been suffering chronic pain over her right elbow, left shoulder, lower back and pelvis, along with long-term anxiety and medication dependence as a consequence of her injuries and chronic pain.

Dr Adler, Croydon Medical Centre

95. In March 2018, Dr Alder requested funding for left upper extremity and spinal investigations for the plaintiff’s accident injuries. The plaintiff had been using her left shoulder a lot more and it was now frozen.
96. Dr Alder referred the plaintiff back to Mr Michael Dooley on 22 March 2018, noting that the plaintiff had ongoing problems with her right elbow and now it was locking about fifteen to twenty times a day. If it did not lock, it catches her with associated pain.
97. Dr Alder wrote a “To whom it may concern” letter in June 2018, advising of treatment she had provided for the plaintiff.

Investigations

98. Dr Adler organised an x-ray and ultrasound of the right elbow at MIA Radiology in January 2018. The clinical history read: “Previously shattered elbow MVA 26 years ago. Can’t fully extend.”
99. The right elbow x-ray was reported to show there were at least two intra-articular loose bodies anteriorly in the humeroradial compartment anterior to the capitulum. This measured 16 millimetres. There was another ossified body in the olecranon fossa measuring 6 x 9 millimetres and another ossification measuring 5 millimetres distal to the medial epicondyle which may reflect prior soft tissue injury.
100. There were degenerative changes in the elbow joint, with severe joint base narrowing in the medial aspect of the humeroradial compartment. Bony irregularity in the humeral head in keeping with old trauma. Osteophytes arise from the olecranon process of the ulna, but no joint space narrowing of the humeroradial compartment.
101. The ultrasound was reported to show a small joint effusion. There was shadowing foci in the anterior and posterior elbow, corresponding to the x-ray findings of intraarticular loose bodies.
102. In the pelvic x-ray, there was deformity in the pubic bones in keeping with old trauma. There were degenerative subchondral cysts in the superolateral left acetabulum.
103. In March 2018, Dr Adler organised left shoulder investigations which were reported to show mild subacromial bursitis and impingement.

Mr Michael Dooley, orthopaedic surgeon

104. Mr Dooley wrote to Dr Alder on 13 April 2018. He advised he did not have access to his old records.
105. The plaintiff had suffered a fracture of her pelvis and an injury to her right elbow, which most likely involved a fracture of the olecranon process.
106. Fortunately, the pelvic injury did not involve the hip joints, it was managed conservatively and, overall, there had been no major ongoing problems in this regard.
107. The plaintiff said that, over the last few years, she had noticed increasing pain in her right elbow and an inability to fully extend it.
108. On examination, there was a 10-degree fixed flexion deformity of the right elbow, but the plaintiff was able to flex it to around 130 degrees. Pronation and supination were full. X-rays show an enlocated elbow joint with a large loose body anteriorly. There was some narrowing of the joint but, overall, Mr Dooley thought that there was no major arthritic change.
109. He explained to the plaintiff that in time, she had developed some degeneration of her right elbow joint. She did have a loose body anteriorly. He explained that she could not fully extend her right elbow because of the arthritic change. Potentially, a loose body can cause locking and catching, but the plaintiff did not describe these symptoms, so there would be no indication to remove the loose body. He explained to her that removal of the loose body, in its own right, would not allow her to regain full extension of the elbow.
110. He told her that arthritic change in upper limb joints is tolerated to a far greater degree than arthritic change in lower limb joints. At present, he thought they should adopt an expectant approach. He told her, if she developed catching or locking, then it would be reasonable to consider removing the loose body.
111. Mr Dooley reported to the plaintiff’s solicitors in February 2023.
112. He confirmed that he was the orthopaedic surgeon on call at the time of the accident. He carried out right elbow surgery in the form of open reduction and internal fixation of the olecranon process and the plaintiff was then transferred to Bethesda Hospital for rehabilitation.
113. He last saw the plaintiff in April 2018, when she was referred by a local doctor in relation to pain and restriction of movement in her right elbow.
114. He confirmed the plaintiff’s history that over the last few years prior to the consultation, she had noted increasing pain in the right elbow and an inability to flex it.
115. He had read the plaintiff’s June 2022 affidavit.
116. In the accident, the plaintiff suffered a fracture of the olecranon process, which may have involved some damage to the articular surfaces of the elbow joint. Over twenty-five years or so, post-traumatic degenerative change had developed within the plaintiff’s right elbow, In association with this, loose body formation had occurred.
117. The most common form of presentation of degenerative arthritis of an elbow was inability to fully extend it. In the main, a good range of flexion was usually retained, and rotation of the forearm was retained.
118. Patients with this condition note some intermittent aching and some difficulty with a lot of heavy physical activity, including lifting. One can consider simple analgesics and inflammatory medication as required. Rarely is operative treatment required.
119. If loose body caused catching or locking, arthroscopy and removal of the loose bone could be considered. Rarely would one consider a procedure such as elbow joint replacement.
120. Mr Dooley also commented on the pelvic injury and the left shoulder condition.
121. In relation to the orthopaedic injuries, one would advise the plaintiff to remain generally active and to undertake low impact exercise. She would be limited in her ability to engage in active leisure and recreational pursuits. At times, she would note some difficulty with heavy domestic activity. Clearly, it was important that her depression and anxiety were treated appropriately.
122. From an orthopaedic viewpoint, the plaintiff would have a physical capacity to carry out clerical-type work and some light physical work, but not able to carry out heavy physical work.

Pain management

123. There was an ambulatory pain management services report from Eastern Health in May 2018 to Dr Alder in which the pain registrar advised that the plaintiff presented to the clinic, accompanied by her mother.
124. The plaintiff’s complaints were pain, chronic right elbow, left shoulder and back pain since the accident. Comorbidity POCD, substance abuse, anxiety and depression.
125. It was recommended the plaintiff cease Panadeine Forte and commence a patch, and that she be referred to a psychologist to see whether she would be suitable for pain management.
126. The plaintiff described her right elbow as a constant ache, sharp pain on movement, although she had full range of movement. She had left shoulder pain, which was exacerbated lying on her left and weightbearing.
127. The pain registrar discharged the plaintiff to her general practitioner.
128. The plaintiff was involved with the Ambulatory Pain Management Service at Eastern Health from 1 August to 4 September 2019.

Dr Louisa Soh, rehabilitation physician

129. Dr Soh from the Eastern Health Pain Service wrote to the plaintiff’s general practitioner, Dr Badir, in December 2021, having spoken on the phone with the plaintiff that day.
130. The plaintiff had been referred by the general practitioner with chronic right elbow, left shoulder and back pain since the accident, and had last been seen in the pain clinic in May 2018 by the registrar.
131. The plaintiff was interested in a pain program and agreeable to reducing codeine, but anxious. She had not attempted to do this previously.
132. The impression was chronic pain following multi-trauma accident. There were some suggestions about reducing Panadeine Forte and recommending regular exercise. On 21 January 2022, the plaintiff was placed on the waitlist for allied health training then a pain management program.

Eastern Health pain management

133. Eastern Health pain management service prepared a care plan in May 2022 to improve the plaintiff’s quality and quantity of sleep, and explore additional strategies to assist with pain management.
134. The plaintiff’s main pain issues were chronic pelvic, left shoulder and right elbow pain on the background of the accident.
135. On 21 June 2022, Dr Soh, having spoken to the plaintiff by phone, advised Dr Badir of her progress, noting she was due to start pain management in July. At that stage, the plaintiff described her right elbow pain as a constant ache with sharp pain on movement.

Medico-legal examiners

Mr Ash Chehata, orthopaedic surgeon

136. Mr Chehata first saw the plaintiff on 7 October 2020 for the purposes of an AMA assessment.
137. Following a pedestrian v car accident in which the plaintiff suffered a severe fracture of her right elbow, she reported noticing, over the years, ongoing issues of pain in her right elbow, with loss of extension and, over time, that had been worsening, restricting her ability to extend her dominant arm.
138. On examination, he had no doubt the plaintiff had severe restriction of right elbow movement.
139. The severe fracture of the right elbow had now progressed to significant degenerative change. The prognosis was for progressive degenerative disease in the right elbow with bone-on-bone changes in the right elbow, as well as coccyx style pain from the coccyx fracture and pubic rami fracture.
140. There was clearly a relationship between the accident and the underlying degenerative change in the plaintiff’s right elbow.
141. He did not believe surgery was ideal, due to the multiple medical comorbidities and significant likely change with such severe bone-on-bone arthritic change and the large anterior loose body, which was essentially in the anterior compartment, and would not need to be removed unless her pain levels spiral out of control which would, again, need to be very carefully considered given the potential complications of operative intervention and her poor coping mechanisms.
142. The plaintiff’s level of incapacity in relation to her personal, domestic and recreational pursuits was significant considering the ongoing severe pain, ache and inability to use her dominant right arm in an unrestricted fashion.
143. Clearly, her current capacity and long-term capacity has been hampered, not only by the arthritic changes in her right elbow, but also severe mental health issues, as well as concurrent comorbidities and her medical history of a psychiatric injury and drug use.
144. Her prognosis was undoubtedly poor.
145. On re-examination in June 2022, right elbow movement was still restricted. There was audible and palpable crepitus, and the plaintiff had a bony block, all consistent with a severe bone-on-bone arthritic progressive change from a post-traumatic injury from 1991.
146. She also had widespread and diffuse back pain situated around the coccyx and she struggled to bend, stretch or mobilise in an unrestricted fashion.
147. Her sciatic nerves were bilaterally intact, and she was able to heel raise and toe raise. There was diffuse widespread pain in a non-anatomical distribution.
148. The history was being involved as a pedestrian in a motor vehicle accident and suffering a severe fractured elbow, which had now progressively changed to a degenerative component. She also had progressive lower back symptoms secondary to the coccyx fracture and public rami fracture.
149. He confirmed there was a clear relationship between the injury to the elbow and the accident.
150. This intraarticular fracture, which was almost thirty years on, could certainly progressively change to a degenerative component, which the plaintiff now had, which was bone-on-bone, and that certainly correlated with the traumatic injury in the accident. She may require an elbow arthroscopy.
151. The plaintiff’s level of incapacity was, unfortunately, severe, noting she was now on a disability support pension for significant mental health issues and anxiety, but that had been compounded by a lack of ability for her to utilise her dominant right arm or load through it. She could no longer lift, push or pull in a regular fashion, which had affected all her home cooking, chores, lifting or cleaning, as well as mopping, sweeping or gardening.
152. The plaintiff’s current capacity for employment was more likely related to the severity of other chequered and tumultuous history. Her prognosis was ultimately poor.

Mr Jason Harvey, orthopaedic surgeon

153. Mr Harvey examined the plaintiff in July 2022.
154. The plaintiff then described constant aching in the elbow with numbness in the fingertips with a non-dermatomal distribution. This subjective feeling of numbness had no exacerbating or relieving factors. She felt no strength when lifting, and had difficulty loading the elbow with the forearm pronated. Any circular motions were difficult when requiring force. The elbow felt bruised.
155. There were no significant night symptoms and no night numbness. She could not sleep on her left shoulder due to shoulder pain. The elbow gave way and felt unstable due to pain. She was not able to load at the point of the elbow at the location of the open reduction and fixation wound.
156. There was aching in the left shoulder.
157. She also reported aching in the pelvic region, with trouble standing on a hard surface for long periods of time.
158. The plaintiff described difficulty with housework and had assistance from her brother or partner to help with shopping. She enjoyed watching television, cooking and reading.
159. She was then taking mirtazapine, an antidepressant; Seroquel, an antipsychotic medication; Panadol Forte, Valium, and Somac for stomach problems.
160. On examination of her right elbow, there was 135 degrees flexion, 15 degrees extension, 85 degrees pronation and 60 degrees supination. Irritability at end range flexion and extension, both actively and passively was noted. Sensory testing of the hand revealed subjective altered sensation distally in a non-dermatomal pattern.
161. There was normal power in all groups. There was maximum tenderness to palpation at the radio capitellar joint and no crepitus. There was no elbow instability.
162. Mr Harvey diagnosed a right open olecranon fracture with development of post-traumatic arthritis of the elbow and a flexion contracture at 15 degrees. There was a fractured right acetabulum treated with skin traction and a left acromioclavicular disc location treated on operatively.
163. The right elbow, post-traumatic arthritis and contracture was a direct result of the accident.
164. The plaintiff sustained an open fracture requiring internal fixation. The mechanism of injury, the intra-articular nature of the fracture and energy required to cause the injury would cause damage to the cartilage surfaces of the elbow. This would not necessarily be appreciated immediately. When the cartilage subsequently degenerates, it leads to loss of joint space, synovitis and peripheral osteophyte formation, with subsequent loss of motion, predominantly in extension, but also flexion.
165. The earlier symptoms of this involved end range impingement between the olecranon and the humerus and the corrinoid and the humerus. The current radiographs are entirely consistent with the sequelae of an open olecranon fracture. They show narrow joint space between the radial head and the capitellum, and early osteophyte formation. The olecranon has mild deformity consistent with the healed fractures.
166. He recommended ongoing participation in a pain management program to improve coping mechanisms and optimising medication management. He currently did not recommend surgery, but if the plaintiff deteriorated, she may be a candidate for an elbow arthroscopy and osteo-capsular release.
167. He thought the plaintiff had a significant incapacity with regards to domestic activities. She did not participate in any recreational activities that are impaired by her elbow. She does not have a capacity for employment. He expected her arthritis to gradually progress over time, with an increase in the development of peripheral osteophytes and, subsequently, a gradual loss of flexion and extension range of motion that would be accompanied by impingement symptoms which would manifest as pain at the end of flexion/extension range. She was also likely to have progression of aching like pain in the joint throughout range, including at night.

Mr Arshad Barmare, consultant orthopaedic surgeon

168. Mr Barmare examined the plaintiff on behalf of the defendant in February 2023.
169. The plaintiff described an ache in her elbow. She could not lift more than 5 kilograms and there was restricted extension. There were clinks and clunks and she had difficulty writing.
170. On examination, there was a fixed flexion deformity of 10 degrees.
171. The plaintiff had symptoms of pain in the right elbow affecting her activities of daily living, work and lifting of more than 5 kilograms. There were also restrictions in relation to left shoulder pain and lower back pain.
172. The alleged physical injuries were consistent with the accident circumstances.
173. The progressive degenerative changes of post-traumatic arthritis in the right elbow as well as pain in the AC joint of the left shoulder were still persistent. The sacroiliac joint may be a cause related to the post-trauma of the pelvis.
174. He did not think the plaintiff’s present condition was as a result of the skateboard fall which resulted in a chipped fracture of the olecranon documented in the records of Eastern Health in November 2006. It was a result of the transport accident.
175. The plaintiff had anxiety which stops her from doing quite a few things in day-to-day life, apart from these orthopaedic injuries which stop her from activities of daily living.
176. Her prognosis, especially the elbow, was quite guarded.
177. The plaintiff’s physical injuries interfered with her domestic activities, and she had modified them. She could not do them for a long time and needed help at times, which she struggled to find.
178. She was a very social person who used to play softball and netball and had stopped these after the accident.
179. The plaintiff’s physical injuries, specifically the right elbow, interfered with her ability to write, which was required being in the insurance industry, and also doing computer work which required the elbow to be moved, which she said had impacted her capacity to work.

Associate Professor (“AP”)Paoletti, psychiatrist

180. AP Paoletti examined the plaintiff on Zoom on 27 October 2020.
181. From a psychiatric point of view, he thought she suffered from an anxiety disorder with generalised component, a traffic phobic component with avoidance, including total avoidance of driving and attenuated features of PTSD, to which he collectively applied the code “unspecified anxiety disorder”.
182. He also thought she suffered a Chronic Adjustment Disorder with Depressed Mood. At various times in her life, she had been dependent on substances.
183. He noted she had a number of unrelated events in her life, including broken relationships with the fathers of her children, ectopic pregnancies, physical abuse in 2016 by a violent partner, substance abuse and the impact of COVID, particularly on her depression.
184. The accident occurred when she was twenty-three and it may have modified her capacity to handle some of her life events. Prior to the accident, she had a stable work history.
185. He thought, given the frightening circumstances of the accident and the seriousness of her injuries, the accident remained the most salient contributing factor to the current psychiatric problems.
186. It was difficult to separate her relationship issues from the impact of the accident, which occurred before she had children. She had become socially withdrawn and there had been an impact on recreational activity and, overall, there appeared to have been a pervasive impact in her quality of life.
187. From a psychiatric point of view, he thought, in terms of work capacity, the plaintiff would have problems due to her anxiety level which is far too high, problems with memory and concentration which may be related to anxiety, current prescribed medication, possible neuropsychological deficits from past and present substance use. She is deconditioned and she may have some geographical limitations due to her avoidance of driving.

The Defendant’s medico-legal evidence

Mr Garry Speck, orthopaedic surgeon

188. Mr Speck examined the plaintiff on 18 October 2022.
189. In his forty-page report, he provided detailed analysis of treating reports and medico-legal evidence to date.
190. He noted the original injury and subsequent surgery and the removal of the wires about eighteen months after the accident.
191. The plaintiff advised that there was a constant ache in her right elbow. She cannot do a lot with it, and she can get short, sharp pains in the elbow. Intermittently, she had difficulty with movement of the elbow but had a good range of movement that day save for a small loss of extension.
192. He thought the plaintiff had suffered contracture of the right elbow, internally fixed with residual loss of extension, but otherwise good flexion and pronation, and supination, and intermittent symptoms of restriction.
193. The fractured pelvis was treated non-operatively, with healing on imaging. There were soft tissue injuries to the kidney, liver and left shoulder, which settled, and required further treatment. The plaintiff was noted to have had pre-existing back pain and also addiction issues.
194. He thought her bony injuries from the accident were stable. He did not believe any operative treatment was required for ongoing right elbow symptoms or her pelvis pain. Engagement with appropriate pain management and mental health support would be appropriate.
195. He thought the difficulty with use of the right upper extremity could be overcome with attention to manual handling, and the use of the left upper extremity. He noted she undertook a moderately physically demanding job at Box Hill, with handling records and electronically copying and filing them. He believed her chronic pain behaviour or Somatic Symptom Disorder conjunct with her mental health issues were the significant cause of further restriction in her domestic activities.
196. Limitations to her work capacity to have been likely to have occurred until removal of the wires about eighteen months after the accident, with a partial incapacity in the twelve months prior to that.
197. Mr Speck also reported in February 2023, having been asked to look at the Eastern Health records in November 2006 when the plaintiff fell off a skateboard and injured her right elbow, and an x-ray of 16 November 2006.
198. In his view, other than the information provided from the Emergency Department, there was no indication of significant deterioration in the plaintiff’s level of function at that time. The radiologic description was one of an already established degenerative osteoarthritic pattern and no further fracture is identified on the x‑rays. Therefore, he did not see an acceleration or persisting aggravation from that fall.
199. He was asked about Mr Chehata and Mr Harvey’s view in their 2022 reports that the plaintiff had progressive degenerative disease in the right elbow. Mr Harvey also thought the plaintiff would have a gradual loss of motion most likely in extension.
200. Mr Speck noted that it was already over thirty years since the accident and loss of extension was the only significant loss of elbow movement. It has been recorded as 15-30 degrees, but otherwise her functional retention of flexion and pronation and supination were normal. He was unable to explain why Mr Harvey believed there was certainty about loss of extension of the elbow. He would expect the degenerative process most likely to have already played out.
201. He saw the trauma to the right elbow at the time of the accident as the whole cause of the degenerative condition of the right elbow. Although she may have had an aggravation of the already present arthritis in 2006 for example, the arthritis was recorded radiologically and modest restriction of movement he expected was already evident.
202. He would agree with Mr Chehata in his assessment of the plaintiff’s work capacity as being due to the severity of her other chequered and tumultuous history. Her mental health and Somatic Symptom Disorder – Chronic Pain Syndrome, was a significant aspect, as well as her substance use. For three years, from 2012 to 2015, she had been unable to undertake full-time work and ceased because of mental health issues, not physical ones.

Submissions

203. There were limited submissions made by counsel in relation to the serious injury application, with the parties focussing largely on the extension of time application.
204. Having indicated my preliminary view that there was some support for a serious right elbow injury,^[34] counsel for the defendant “accepted without doubt” that the tenor of the medical evidence was that as a result of the accident the plaintiff had developed post-traumatic degenerative change.^[35]
205. Counsel for the defendant was cognisant of the state of the medical evidence and the defendant’s focus was on the s23A application.^[36]
206. When asked to comment further on seriousness, counsel for the defendant raised the issue of disentanglement of non-related health issues as the Court directed in Peak – such as the plaintiff’s drug problem with Mr Chehata and AP Paoletti of the view the plaintiff was not working due to drug and mental health issues.
207. It was submitted Mr Dooley described the plaintiff’s condition as “minor arthritic” and there were varying examination findings of the plaintiff’s level of elbow movement.^[37]
208. Not surprisingly, counsel for the plaintiff made more detailed submissions in support of the serious injury application.
209. It was submitted the plaintiff’s serious injury application, concerning the impairment to her right upper extremity, was very strong and had always been so.
210. Since the accident, she has been beset by pain for most of her adult life. She developed a longstanding dependency on pain medication as well as marijuana, which she said assisted her in dealing with her pain.
211. She had raised two children largely on her own and had attempted to return to the workforce unsuccessfully on more than one occasion.
212. The medical evidence was of the development of post-traumatic degenerative change in the elbow, resulting in increasing pain and restricted movement and use of the right upper limb.
213. The Bethesda Discharge Summary in 1991 and the findings on the 2018 x-ray and ultrasound of the right elbow were relied upon.
214. As a result of the elbow impairment, as specialist upper limb and elbow surgeon, Mr Chehata, stated, the plaintiff’s incapacity was severe and impacted upon her dominant arm and ability to lift, push or pull in a regular fashion, which had affected all her home and cooking chores, lifting and cleaning, as well as mopping, sweeping and gardening. He thought the prognosis was poor. Mr Harvey, orthopaedic surgeon, shared a similar view, as did Mr Bramare, who examined the plaintiff on the defendant’s behalf.
215. While Mr Speck thought the plaintiff could simply use her non-dominant hand to overcome her difficulties, he did note in his November 2022 report, the problems which she encountered day to day using her right arm.

Overview

216. There is no issue that the plaintiff suffered injury to her right elbow in the accident, most likely involving a fracture of the olecranon process, which was treated surgically by Mr Dooley at Box Hill Hospital.
217. During cross-examination, the plaintiff’s evidence of her level of pain and restriction was not challenged, save for her evidence about “stabilisation” and the timing of any worsening of her elbow condition.^[38]
218. The main attack on the plaintiff’s credit in the submissions by counsel for the defendant related to her evidence about the accident, not her level of disability.
219. Counsel for the plaintiff submitted that any attack on the plaintiff’s credit had a scant basis when regard was had not only to the substance of her evidence but also the manner in which she gave it.
220. I found the plaintiff to be a credible witness when describing her accident injuries and their effect on her life and, in my view, she did not overstate her level of disability. However, her evidence as to the accident circumstances was unreliable and unsatisfactory in a number of respects as I will discuss further when considering the LAA application.
221. In Haden, at paragraph 11, President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise the following:
     

     (a) what the plaintiff says about the pain (both in Court and to doctors);(b) what the plaintiff does about the pain (for example medication, rest, seeking medical treatment);

     (c) what doctors say about the extent and the intensity of the plaintiff’s pain; and

     (d) what the objective evidence shows about the disabling effect of the pain.

(a) what the Plaintiff says about the pain

222. The plaintiff suffers constant right elbow pain which increases with activity. Weightbearing and extension/flexion is limited.
223. Elbow pain worsened over the last five or ten years. The pain is an ache but can sometimes be a bit sharper. Sometimes, she has numbness down her right arm towards her hand. She cannot straighten her elbow fully, at least not without pain. She finds it much harder to control a pen.
224. The plaintiff has recently described her chronic elbow pain to examiners in similar terms. There is a constant ache and, at times, sharp pain. Sometimes, she is limited in what she can do with her right elbow, and it feels weak. Extension is limited. She has difficulty writing.
225. The pain has worsened since 2015 and moreso from March 2018, requiring further referral to Mr Dooley in March 2018 and ongoing pain management programs since that time.

(b) what the Plaintiff does about the pain

226. The plaintiff was initially hospitalised at Box Hill Hospital for two weeks. During that time, Mr Dooley carried out right elbow surgery in the form of open reduction and internal fixation of the olecranon process.
227. The plaintiff was then transferred to Bethesda Hospital for rehabilitation. She was an inpatient from 9 October until 12 November 1991.
228. She had counselling at Eastern Access Counselling from 1994 for twelve years.
229. She thought that, over the years, she never stopped taking painkillers like Panadeine Forte and Valium. Otherwise, she self medicated. In September 2003, she was an inpatient for five days at Western Hospital for polysubstance abuse.
230. She has received treatment from a number of general practitioners, most recently from Dr Adler in Croydon from 2015, and Dr Badir, at Main Road Medical, from February 2019.
231. She was referred back to Mr Dooley in March 2018 by Dr Adler.
232. She had various periods of pain management at Eastern Health, where she was referred by Dr Adler in May 2018. As at June 2022, Eastern Health was prescribing Pregabalin and Panadeine Forte for pain relief.
233. Further surgery has not been suggested but ongoing analgesia and pain management have been advised.
     

     (c) What doctors say about the extent and the intensity of the Plaintiff’s pain

234. As counsel for the plaintiff submitted, with the exception of Mr Speck, the medical consensus was that of a plaintiff with a seriously injured right elbow and arm which had deteriorated significantly in recent years, and which had a loose body. Her right elbow been the source of pain and limitation for the course of her adult life. It will not improve and may deteriorate even further.
     

     (d) What the objective evidence shows about the disabling effect of the pain

235. Since the accident, the plaintiff has been restricted in activities involving her right dominant hand. She had particular problems when her two children were young. She has had ongoing problems with heavier household tasks requiring use of her dominant right arm.
236. Counsel for the plaintiff did not strongly submit that the plaintiff had no ability for sustained employment because of her elbow. While I accept that her absence from the workforce in early days post-accident, when she was recovering from surgery, was due to her accident injuries, later on, as Mr Chehata, AP Paoletti and Mr Speck opined, the plaintiff’s incapacity was more to do with her mental state and drug use.^[39]
237. In my view, this application is relatively strong, with medico-legal experts and the operating surgeon, Mr Dooley, finding post-traumatic degenerative changes and linking ongoing degeneration and increased problems with the elbow with the accident. As counsel for the defendant agreed, “that was the tenor of those opinions without doubt”.^[40]
238. The plaintiff does, however, have a range of other health issues that do not form part of this application – mental health, lower back, left shoulder and pelvis. Her mental state and pelvis have been ongoing issues of some significance. Any problems she has relating to these issues must be excluded when considering her right elbow impairment and I must be satisfied that the consequences of the elbow impairment itself are “serious”.^[41]
239. Taking into account all the evidence and excluding consequences of conditions unrelated to this application, I am satisfied the plaintiff has a serious impairment of her right elbow as a result of her ongoing pain, and need for regular opioid-based analgesia, restricted elbow movement and interference with activities involving the use of her right upper limb.
240. As her right elbow pain and restrictions have continued for nearly thirty-two years with no improvement and all the medical evidence suggests that her elbow is now worse,^[42] I am satisfied the impairment is permanent.
241. Accordingly, I grant leave to bring proceedings for damages in relation to the accident.

Extension of time

242. Having satisfied the requirement of s93 of the Act, the plaintiff now has an action for damages in relation to which an extension of time can be sought under the LAA.
243. The plaintiff’s second affidavit sworn on 14 February 2023 largely addressed the extension of time issues. Paragraphs 47, 48 and 55 of this judgment set out the relevant parts of the plaintiff’s first affidavit in relation to this issue.
244. At the time of the accident, the plaintiff was with her then boyfriend, Jamie. She had not spoken to him for a long time, but her solicitors located him and took a statement about his recollection of the accident. That was consistent with what she could remember, but she could not remember much after the car coming towards her.
245. She understood that the defendant had located and spoken to the driver in the accident, Julio Rubina.
246. When she got out of hospital in November 1991 and completed her rehabilitation, she tried her best to go back to work and thought her elbow surgery and injuries would get better over time. However, her physical pain, as well as her anxiety, prevented her from keeping on working. She was overwhelmed by the physical pain and nervousness of someone knocking her and further injuring herself.
247. In the years following the accident, she started to rely more and more on painkillers and probably had a habit of depending on them as she did not have a lot of support at that time.
248. As far as she could remember, she did not speak with a lawyer at the time about bringing a claim for her accident injuries and did not receive specific advice about it until she first spoke to her current solicitors in 2018. As she had worked at a law firm and for an insurance company, she did know there were time limits in relation to claims like this. She thought at some point she had just assumed it was too late to bring a claim and did not realise that she could apply for an extension.
249. She was a single mother raising her first child, Laura, in 1993, and then Jack in 2001. That occupied her time and attention, and she learnt to cope with her physical and psychological restrictions, but they never left. Certainly by Jack’s birth, she assumed it was too late to bring a claim.
250. She was proud of how she had brought up her children.
251. From even before Jack was born, she had become pretty heavily reliant on painkillers and sedatives, as well as marijuana, to get her through the day, but she thought she had stopped using marijuana when she raised her children.
252. The painkillers and sedatives like Valium helped with her physical pain and also anxiety that she had not had before the accident. In hindsight, for a time, they probably formed a dependence on these drugs, and they helped her to deal with the pain, and it was probably the reason she did not pursue treatment. It had a Band Aid-effect.
253. From time to time over the years, she was also in relationships which were abusive and violent and probably over-relied on medications like Valium to deal with the added stress.
254. After Jack had grown up a bit, she tried a return to work at Box Hill Hospital, which ultimately overwhelmed her. Her physical pain, particularly her right elbow, was increasing and really would have started to deteriorate in about 2015.
255. She thought she might have mentioned this to her general practitioner in Croydon in late 2015. It could have been Dr Adler. She continued to discuss this with her over the next few years.
256. During 2016 and 2017, she was pursuing a claim for aggravation of stress and anxiety while working at Box Hill Hospital and did not consult her lawyers about the accident, but Dr Adler was helping her with medical materials. She had a conciliation with WorkCover but did not pursue the matter further.
257. From memory, in about 2018, Dr Adler arranged for her to see Mr Dooley, who had operated after the accident, and she also suggested that the plaintiff speak to her current solicitors and gave her their contact details.
258. It was only when she spoke to them that she learnt that she might be able to ask the Court to give her an extension to bring this claim, even though it was a long time ago. From when she found out that she could ask for an extension, she had done whatever she could to bring the application as quickly as possible.
259. She decided to pursue the application mainly because, since about 2015, her right elbow particularly had really started to get worse. Although over the years she might have bumped or knocked it from time to time, she knows that it is related to the accident and the surgery she had to have afterwards, and she is worried that it might continue to worsen as she gets older.

Cross-examination

The Plaintiff’s legal background/knowledge

260. The plaintiff was a claims agent at WCS Insurance (“WCS”) representing the employer and dealing with claims based on what had been lodged. She arranged medical appointments but did not consult with solicitors for the employer. When she worked at WCS she had no knowledge of limitation periods.^[43]
261. WCS took over from Mercantile Mutual, where the plaintiff was doing similar duties. She was possibly in those jobs for about two years. She then got a job with Slater and Gordon in Little Bourke Street as a law clerk. She used her experience as a claims agent in that role and did not have particular training. She was there for about two years. She ran files under the supervision or her partner or a solicitor. She frequently went to court and the work all involved worker’s compensation. She had never seen a s23A because all she was dealing with was statutory entitlements. She did not do common law when she worked at Slater and Gordon. It was her understanding, when she worked there, that there was a limitation period of seven years.^[44]
262. She agreed she enjoyed her work and was very good at it. She worked there from 1989 to 1990 and then went to FAI insurance, where she was a senior claims officer doing worker’s compensation. She did not have anything to do with the Court. She was working at FAI at the time of the accident.^[45]

Alcohol and drugs on the said date

263. The plaintiff was asked about her memory of her level of drinking and drug use on the day of the accident. She had been drinking since lunchtime, but she had not been drinking very quickly; she had been drinking slowly. That is what she meant by “a bit”.^[46]
264. She could not remember taking two Serepax, as recorded by Box Hill Hospital.^[47] She would not have taken a half Rohypnol, because she took that at night to go to sleep. She had smoked marijuana that day.^[48]
265. She would have been affected by drugs and alcohol, but she would not say badly. The accident was about eight o’clock at night.^[49]

The accident

266. She confirmed the taxi was coming from her left on the other side of the road.^[50] The car that struck her was coming from her right. She had revisited the scene on Springvale Road a few years ago. The configuration has changed.^[51]
267. She then did a drawing of the accident scene. ^[52] There was a median strip in the middle of Springvale Road with three lanes in each direction. The car that hit her was in the lane near her, coming from her right. The taxi was on the other side, way over. She started off in in the parking lane, out the front of Winlaton.^[53]
268. She confirmed she agreed with Jamie’s statement about the accident circumstances.^[54]
269. After she left the fence where she and Janie had been sitting, she walked to an area where it was lighter to wave down the taxi. She was not making this up, she is sure, but “the taxi did not see us”.^[55]
270. She did not know why Jamie said the taxi was coming from her right. There could have been another taxi behind the driver, she did not know. She was focusing on the taxi on the other side of the lane.^[56] There was a place for it to do a U-turn, it could have done, she did not know.^[57]
271. When the inconsistencies with Jamie’s statement were again put to her, she said “we were both looking at two different things”.^[58] What she saw was the taxi on the other side (of the median strip) coming that way – “what Jamie saw was when [she] got hit. He saw that. He saw what he saw.” There were a lot of other cars on the road as well, maybe that is what Jamie was talking about.^[59]
272. She was taken to the part of her affidavit where she referred to the driver who hit her being an off-duty policeman. She denied she was having an argument with Jamie that night. They locked Jamie up “… because the driver of the car that ran me over told police that attended the scene that Jamie had pushed me in front of the car and he hadn’t”. He was locked up overnight and police came and interviewed her later that night and asked her about the circumstances of the accident, and if Jamie pushed her in front of the car or not, and she told them he did not.^[60]
273. She knew the driver was an off-duty policeman because her mother got the badge numbers of the police who attended the scene, and they also gave her his badge number. He was the one who told police who attended that Jamie had pushed her in front of the car and that he was on the footpath. Jamie was nowhere near her.^[61]
274. When taken to the Police Incident Report, she confirmed she was standing.^[62] Before she stepped out onto the road, she looked, and there was nothing on the road coming towards her, that is why she was flagging down the taxi. When the taxi went past, she turned around, and there was a car coming downhill, and it was coming very fast, and she froze. She did not know which way to go to get out of the way.^[63]
275. She later said she thought she was in the second lane, not the first. She had put herself in the next lane along, closer to the car that hit her.^[64]

“I can remember waiting for a taxi. I remember stepping out – seeing the taxi coming. I remember stepping out onto the road. The taxi kept going passed and I turned around to go back to the footpath but as I turned around I saw a car coming towards me so fast I didn’t know which way to go to get out of the way and I froze. I remember that distinctly … I stepped into the parking lane.” ^[65]

276. In re-examination, the plaintiff said she may have stepped from the parking lane into the left lane that the driver was in. She may have but does not remember.^[66]

Reasons for delay

277. She agreed she was using heroin more than once or twice during the period 1991 to 1992.^[67]
278. She knew she could make a claim for compensation in 1991 and 1992. She was told she could not make a claim until her injuries had finalised. She did not do common law she only dealt with weekly wages. She was taking drugs due to pain and was told she could not make a claim until her injuries had stabilised and they had not.^[68]
279. She did not talk to the counsellor about legal issues.^[69] She had a stress claim, having worked at Box Hill from 2011 to 2016, and that was not accepted. She looked after herself in terms of conciliation and did not have any legal representation.^[70]
280. She confirmed, in 2015, her elbow started to hurt more and at times she was taking Panadeine Forte and Endone.^[71] She did not do anything about her legal rights. She did not know she had any rights until she first saw Henry Carus, after Dr Alder had suggested she see him.^[72] A doctor told her a long time ago about stabilisation.^[73]
281. She may have spoken to someone when she was out of time, because her dad kept telling her she needed to do it. She may have spoken to someone for about half and hour, and they said it is out of time and she could not do it, so she just did not bother, but she was not even exactly sure if she did that. She confirmed she just assumed it was too late to bring a claim and did not realise she could apply for an extension of time. ^[74]
282. She agreed she had symptoms both physically and psychologically from day one. She did not know it could last all her life.^[75]
283. She could not explain why Henry Carus did nothing from March 2018 until December 2019.^[76]
284. She confirmed that she was worried if she got money, she would take drugs and would not be around for her children. She was just trying to deal with day-to-day issues and pain and living.^[77]

Lay evidence

Jamie Castellan

285. Jamie Castellan made a statement dated 3 November 2022 exhibited to his affidavit affirmed on 1 March 2023.
286. He is presently aged fifty-seven. He met the plaintiff about six months before the accident. They were in a relationship prior to the night of the accident.
287. That night they had been to the Manhattan Hotel and played some pool and then went back to a friend’s house in Forest Hill.
288. He thought they were at the house for about an hour and then they decided to leave. They walked out to the front of the house to wait for a taxi that friends had called.
289. He had had a few beers that night, but he did not even think the plaintiff had had a drink while they were there. He had a couple of beers from his friend, and they left. They sat out the front of the house on the fence waiting for the taxi, he thought for about 10 minutes. It was very dark and there were no streetlights. The road had a rise to the right that the taxi would have been coming from. The plaintiff observed the taxi coming over the rise and it appeared to be in the middle lane.
290. The plaintiff had just stepped off the kerb onto the road to flag down the taxi and then all of a sudden, another vehicle had come up beside the taxi on the left side and hit her. The car hit her at a fair pace. He could remember at the time thinking he was going quick as he was going a lot faster than the taxi.
291. The other driver braked as he struck her, and the impact threw her at least 2 metres forward and she landed in the middle lane where the taxi was. She landed on her back with her head facing towards the direction the car and taxi had come from. He ran over to her and did not notice where the car that struck her stopped.
292. The plaintiff was conscious but in a lot of pain and he could remember some people standing above him, but he did not know who they were or which car they were driving. He could not remember any conversation with the driver or anyone really after that, as it was a bit blurry. He thought his friends came out and called the ambulance to attend.
293. They did not move her from where she was on the road and then the ambulance arrived quite quickly. The plaintiff was complaining about her shoulder, pelvis and elbow at the time, and saying she was unable to move. He did not see any bleeding and thought it was more internal damage and broken bones and some small cuts.
294. While he remembered it being very dark, he did not recall it being wet and did not think it had been raining. They had been waiting outside for about 10 minutes so. He remained in a relationship with the plaintiff for five years after the accident and she never really fully recovered from the injuries.
295. Prior to the accident, the plaintiff was very happy and an easygoing type of person who enjoyed her social activities and was fun to be around. Thereafter, she changed quite a lot. She was always in pain, which restricted her with what she was able to do.

Mr Dino Beslagic, the Plaintiff’s solicitor

296. Mr Beslagic, solicitor from Henry Carus, swore an affidavit on 1 March 2022.
297. The defendant’s solicitor, Natalie Attard was wrong when she deposed in December 2022 that the first originating motion was served on 30 June 2021. It was filed on 17 March that year and not served. The amended originating motion filed on 1 March 2022 was served on 3 March 2022.
298. The amended originating motion dated 1 March 2022 was amended pursuant to the County Court Civil Procedure Rules 2008 (“the Rules”). It was amended to delete reference to s23 of the LAA.
299. The reason for deletion was due to a previous case in this Court of Ward v Transport Accident Commission,^[78] which also had a limitation point raised, along with a serious injury application.
300. In that case, his Honour Judge Purcell commented:

“I have a view there is no limitation point unless you issue the Writ and someone takes the point, but others seem to have a different view about that.”

301. The principal of Henry Carus read this comment and believed it to be in line with his understanding of when an application for extension should be brought. For those reasons, they were asked to proceed with the serious injury applications on their own.
302. Noting the originating motion filed 17 March 2021 was not served on the defendant, the plaintiff took the opportunity, as allowed by the Rules, to amend it and proceed with the serious injury application on its own.
303. To the best of his knowledge, the defendant was at all times aware that this originating motion was confined to a serious injury application.
304. On the morning of 6 December 2022, at about 9.00am, was the first he had heard of the defendant having an issue with this kind of application.
305. Mr Beslagic swore a further affidavit on 23 February 2023, having read Ms Attard’s further affidavit in which she stated, “I’m informed and believe that the police officer, Ms Leanne Hughes, is no longer with Victoria Police and her whereabouts is not known”.
306. On 24 February 2023, he instructed investigators to try and find her.
307. On 25 February 2023, investigators located Leanne Hughes, who confirmed that she was in the Victoria Police Force in the early 1990s. She is no longer in the force and has not been for some time but has been located as a witness. She is now fifty-eight and currently resides in Queensland.
308. He understood that the plaintiff, her then boyfriend, Jamie Castellan, the defendant driver and Ms Hughes are all available to give evidence in the proceeding.

The Defendant’s evidence

Natalie Attard, the Defendant’s solicitor

309. Natalie Attard swore an affidavit on 6 December 2022 and swore two supplementary affidavits.
310. In her first affidavit, she deposed as follows:
     • On 30 June 2021, the defendant was served with an originating motion in this proceeding; ^[79]
     • This proceeding was commenced by originating motion filed in the Court on 1 March 2022;
     • On 3 March 2022, the defendant was served with an amended originating motion;
     • On 17 June 2022, the defendant issued a subpoena to Epworth Healthcare for the plaintiff’s records. On 1 July 2022, Epworth Healthcare advised the defendant via email that they did not have any documentation relating to the plaintiff and were not able to comply with the subpoena;
     • On 17 June 2022, the defendant issued a subpoena for the plaintiff’s Medicare history. On 8 September 2022, the defendant obtained a copy of the Medicare history, which set out the plaintiff had attended Pakenham Super Clinic, Blackburn Clinic and East Burwood Clinic after the accident between 1994 and 2000. On 8 September 2022, the defendant made enquiries with these clinics to ascertain whether they had any records, and all confirmed they did not;
     • On 20 June 2022, the defendant wrote to Ambulance Victoria requesting their records relating to the accident. On 6 July 2022, Ambulance Victoria advised they were unable to locate any record;
     • On 18 October 2022, the plaintiff’s solicitors issued a subpoena for Victoria Police. On 24 October 2022, she understood that Victoria Police advised the Court that “no evidence found by the addressee”. This was noted on Court Connect;
     • On 4 November 2022, a pre-hearing conference was held via Zoom;
     • On 5 December 2022, she contacted the driver of the vehicle, Mr Julio Rubina. He advised that he is ninety-one and has no memory of the accident.
311. The defendant relied on s1, s7, s16, s17, s18, s19 and s20 of the CPA.
312. In a further affidavit sworn in February 2023, Ms Attard deposed:
     • On 18 October 1991, a claim for compensation was lodged. The claim was accepted in November 1991;
     • Between 18 October 1991 and 5 February 1993, there were various interactions between the defendant, the plaintiff and her treating doctors in relation to medical and like expenses et cetera;
     • On 19 October 1992, the defendant wrote to the plaintiff advising of her entitlement to loss of earning capacity and impairment benefits, the process and appeal rights, and requested a response by 14 January 1993, otherwise it would be assumed there was no interest in pursuing a claim. The defendant did not receive a response;
     • On 13 November 1992, the plaintiff’s employer advised the defendant that the plaintiff had had a further transport accident on 10 November 1992. On 16 November 1992, the defendant wrote to the plaintiff and stated that it regretted to learn of her involvement in that accident and sent her a further claim form;
     • On 16 December 1992, a file note on the electronic file stated CLMT lost five days regarding the second accident and had two or three check up visits that week. Everything else was related to the first accident. Bethesda Hospital have advised that the claimant is making the most of the situation.
     • She believed there was no contact between the defendant and plaintiff from 16 November 1992 to 14 March 2018, or anyone on her behalf from 12 February 1993 until 14 March 2018;
     • Henry Carus advised on 14 March 2018 that it acted on the plaintiff’s behalf and all correspondence be sent to it. It also requested copies of all documents on the file pursuant to the Freedom of Information Act. On 9 May 2018, the defendant provided the requested documents.
     • The first indication given to the TAC by the plaintiff of her intention to lodge a common law claim in respect of the accident was by letter of 9 December 2019 from Henry Carus. It requested a serious injury certificate and asked whether the TAC required an explanation on the basis for an extension of time. That was more than twenty-eight years since the accident and more than twenty-two years since the cause of action became statute barred.
     • By letter dated 16 December 2019, the TAC denied the waiver request and advised it considered the claim to be statute barred;
     • On 25 February 2020, the defendant requested the plaintiff provide further clarification as to her injuries and medical material in support of the application. On 19 November 2020, Henry Carus served the report of Mr Chehata of October 2020. On 26 November 2020, Henry Carus served the clinical records of Eastern Health, Croydon Medical Centre, North Blackburn Square and East Ringwood;
     • On 15 March 2021, the defendant advised Henry Carus that it denied a request for a serious injury certificate.

Reasons for delay

313. The first time the plaintiff offered any explanation for the delay was the affidavit sworn in June 2022. In February this year, Henry Carus served the defendant with the plaintiff’s affidavit of 14 February 2023, which offered further explanation.
314. In terms of documents and records, prior to the plaintiff serving the originating motion on 1 March 2022, the only documents the TAC had in its possession relevant to the accident were a Claim Form dated 18 October 1991, the police accident report, parts of the hospital and ambulance records (as seen in Eastern Health records) and a copy of the Claim Form.
315. Documents and records are no longer available from:
     • Ambulance Victoria
     • Victoria Police
     • Bethesda Hospital
     • Epworth Healthcare
     • Pakenham Super Clinic
     • Blackburn Clinic
     • East Burwood Clinic.
316. The driver, Mr Julio Rubina, is ninety-one years old and says he has no memory of the accident.
317. She was informed and verily believed that the police officer, Leanne Hughes, was no longer with Victoria Police and her whereabouts were not known.
318. In light of the above, she believed the defendant’s ability to litigate issues of negligence and contributing negligence in its ability to assess issues of quantum were irremediably affected by the unavailability of witnesses and the destruction of documents.
319. In a further affidavit sworn on 1 March 2023, Ms Attard mentioned a further transport accident the plaintiff was involved in on 29 December 1992.
320. In relation to the current proceeding, she was informed and believed the attending paramedics were no longer with Ambulance Victoria and their whereabouts were not known.
321. She was informed and believed any recordings, and recordings including the triple zero call regarding the accident, were no longer available.
322. Dr Ross McDonald at East Ringwood Clinic, who treated the plaintiff from December 1999 to December 2003, is no longer at the clinic and his whereabouts are unknown.

Julio Rubino

323. Mr Rubino swore an affidavit on 23 February 2023. He is currently aged ninety-one.
324. He was asked by Ms Attard whether he recalled being involved in the accident where he was a driver who hit a pedestrian.
325. He had no memory of being involved in any transport accident in his life and, in particular, an accident on 29 September 1991.

Legislation

326. Section 23A of the LAA provides:

“23A  Personal injuries 

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

327. Section 23A(2) of the LAA empowers a court to extend the limitation period within which an action for  personal injury  may be brought. The court must be satisfied that it is “just and reasonable to do so”.
328. In determining whether it is so satisfied, s23A(3) of the LAA requires that the court shall have regard to all the circumstances of the case, including:

“(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.”

Legal principles

329. Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.^[80]
330. In Brisbane South Regional Health Authority v Taylor,^[81] McHugh J described the reasons for the limitation regime:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. … .”

331. The onus is on the plaintiff to satisfy the Court that it is “just and reasonable” to extend the period. As McHugh J stated in Brisbane South:^[82]

“A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

332. In Prince Alfred College Inc v ADC,^[83] the High Court identified two fundamental propositions established by its decision in Brisbane South which guide the exercise of the Court’s discretion on an application for an extension of time:

“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.

Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”^[84]

(citations omitted)

333. In Brisbane South, McHugh J also said:

“The justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced.

… The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. … .”^[85]

334. In Welsh v Adecco Industrial Pty Ltd & Ors,^[86] T Forrest J conveniently set out the applicable legal principles in extension of time applications.

“The principles that apply to this application are uncontroversial:

(a) The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.^[87](b) Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.

(c) The considerations referred to in s 23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to ‘synthesise’ the competing considerations ‘in arriving at a conclusion that account of them all’.

(d) The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.

(e) Relevant prejudice to a defendant is that which actually occurred by reason of the delay, 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.

(f) The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.”

335. In Tsiadis v Patterson,^[88] Buchanan JA, with whom Ormiston and Callaway JJA, agreed, said:

“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”

336. The consequences to an applicant in not being able to bring a proceeding for a time barred cause of action are thus relevant – albeit that they must be weighed in the synthesis with any consequences to a respondent in permitting a time barred claim to proceed.^[89]
337. In consideration of the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited,^[90] J Forrest J stated:

“… 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’. … .”

Opening addresses

Plaintiff

338. Counsel for the plaintiff relied on the plaintiff’s affidavit evidence explaining the delay. The plaintiff managed her pain herself, largely self medicating until about 2015-2018 when her pain increased, and she sought further medical attention. She had not seen a solicitor about a common law claim, because she was under the assumption that a seven-year period applied and had expired.^[91]
339. While it was conceded the delay in this case was enormous, that was not in its own right determinative, but what was important is how the Court approached this issue.^[92]
340. It was submitted the Court was not confined by (a) to (f) of s23A. The Court was required to undertake a legal calculus of looking at all the factors involved in reaching its conclusion as to whether, in its discretion, it was just and reasonable to give an extension of time.^[93]
341. It was submitted that, when all the evidence was considered together with the effect of the plaintiff’s injuries, “the time at which it really started to play havoc with the plaintiff’s life was 2018”.^[94]
342. It was submitted that the inability of the ninety-one-year-old driver to remember the accident did not materially disadvantage the defendant because, at the end of the day, even on his evidence as to what it could be at its highest, it would not make any difference to what the evidence already is in the case.^[95]
343. Counsel acknowledged that the focus of the Court would be on prejudice. While McHugh J’s comments in Brisbane South about the rationale for the legislation assist the defendant’s case, once the evidence had been given and looked at carefully, it was submitted the prejudice cannot be as great as the defendant claims, simply by the mere unavailability of a witness.^[96]

Defendant

344. Counsel for the defendant was cognisant of the state of the medical evidence and the defendant’s focus was on the s23A application.^[97]
345. It was submitted this was “perhaps one of the most hopeless cases seen” because of the failure of the plaintiff and the solicitor involved in addressing sub-paragraphs (a) to (f), such that the defendant had even considered not cross-examining the plaintiff on the s23A because of the lack of material addressing the issues.^[98]
346. It was also inconsistent that the plaintiff said that there was a late realisation about the seriousness of her elbow condition when she said, on numerous occasions, she has had ongoing problems since the date of the accident.^[99]
347. It was submitted there is no accord between the plaintiff’s various statements and Jamie’s statement and liability being “red hot”, that is a major prejudice given the ninety-one-year-old Mr Rubina.”^[100]

Closing addresses

Defendant

348. There had been a ruling on 6 December last year as a result of which the limitations issue was now before the Court. For whatever reason, the plaintiff’s solicitors relied on a throwaway remark contrary to the authority of Hayes,^[101] which was mentioned at the earlier hearing.^[102]
349. Hayes is a binding authority, in which it was accepted that the trial judge correctly recognised it was common practice for serious injury applications and extension applications to be initiated at the same time and heard together.^[103]
350. If this issue was proposed to be litigated, there should have been a case stated to the Court of Appeal.^[104]
351. In terms of the evidence relating to the accident circumstances, there is conflict about the direction of the car and the travel. The plaintiff was on record at the time saying she had no recollection of the accident circumstances, and her affidavits are riddled with “from memory” and “I can’t remember”. Her version conflicts with Jamie’s account of the accident. The driver is ninety-one years old and has no memory of the accident.^[105]
352. The underlying rationale of the LAA legislation as stated in Brisbane South, and also Beach J’s comments in Van Gerven v Amaca Pty Ltd,^[106] followed in Tsiadis v Patterson, were relied upon,^[107] namely that where there is delay the whole quality of justice deteriorates.^[108]
353. In Lovejoy v Carp,^[109] the Court described 10 years as being an inordinate delay. In the present case, the cause of action arose on 29 September 1991, and it is not until 2022 that the amended originating motion was served.^[110]
354. It was submitted, because of her legal and claims background, the plaintiff was aware of limitation periods so she would know she could access solicitors and determine whether her rights had expired. It was not enough for her to “assume” the limitation period had expired.^[111] “It beggared belief” the plaintiff would be articulating the “stabilisation” point without some prompting from some source, when it is not mentioned in her affidavit.^[112]
355. At the very least, the plaintiff is unreliable, and it might even be found she has been deliberately supporting a case in an evasive and unhelpful way, “which was the next step up”.^[113]
356. Inordinate delay may be taken to be evidence of prejudice itself.^[114]
357. There were numerous delays in this matter, whether by the plaintiff or her solicitors.^[115]
358. For the first time, I was advised that the first originating motion issued in 2021 had not been served.^[116] The amended originating motion relating only to serious injury was served in March 2022.^[117]
359. It was submitted the affidavits do not contain any explanation for the delays by the solicitors.^[118]
360. While contact had been made with the policewoman, Ms Hughes, there is no detail as to whether she has any memory of the accident or not. She would have had attended hundreds of accidents.^[119]
361. The road configuration at the accident scene has altered and there was the doubt that comes about the position of the road, the footpath, the parking lane that came from the plaintiff’s diagram. In any event, the plaintiff wanted to change her diagram.
362. The ambulance and police records are no longer in existence. Paramedics are no longer with the ambulance service. There is no triple zero recording. While there are records from Box Hill Hospital, they are deficient, as they have no reference to any of the plaintiff’s alcohol or drug readings.^[120]
363. There is the conflict between the plaintiff’s and Jamie’s versions, in addition to a ninety-one-year-old driver who cannot remember the accident.^[121]
364. Further, the defendant has been deprived of a timely analysis and to be able to see the relevance of the fall after the plaintiff left hospital and her fall from a skateboard.^[122]
365. The defendant has not been able to explore what impact unrelated incidents had on any aggravation of the elbow injury. There are no general practitioner notes at the time, as they are no longer available, and there is nothing in the TAC file.^[123] In addition, there was a big gap from the “initial flurry” of medical treatment until 2018.^[124]
366. Most significantly, the plaintiff’s counsel failed to address, in any meaningful way, or at all, the components of s23A(3). The plaintiff has had ongoing right elbow problems from the time of the accident, as she acknowledged,^[125] rather than just from 2015 or 2018, and there was no proper explanation why she did not do anything earlier about her condition.^[126]
367. The defendant relied on the CPA, s7(9)(i) and s7(9)(ii); s10 and s16, and arguably s18(d).^[127]
368. In this case, it would be thirty years, five months and three days from the date of the accident until service of the originating motion on 3 March 2022, the first originating motion not having been served.^[128]
369. It was submitted the application fails because the plaintiff and Mr Castellan are in conflict as to the accident circumstances. They were affected by drug and alcohol in an accident thirty years ago. The plaintiff admits she stepped on the roadway and had not seen the car until she turned after the taxi passed her by and she froze. The defendant driver is ninety-one and does not even know of the existence of the accident and the extent of the police officer’s memory is unknown.^[129]
370. Counsel for the defendant conceded, as the Court was not seized of an originating motion per se in respect of a s23A application, although it was a matter for the Court, there should be one filed.^[130]

Plaintiff

371. Counsel for the plaintiff then adopted counsel for the defendant’s position that, fundamentally, there was no s23A before the Court and one should be filed.^[131]
372. The plaintiff’s submission became one of “form of process,” there having been no originating motion that had been served which included the LAA application.^[132]
373. I confirmed, even though I made no order, it was obvious from the earlier hearing in December 2022 that I wanted both matters heard together. A formal order to this effect was not required.^[133] Counsel did concede however, a direction to that effect had been given at the earlier hearing.^[134]
374. It was submitted while the Court in Hayes allowed both applications to be heard together, it did not address the statutory interpretation point relating to “an action for damages”.^[135]
375. It was submitted that, until a written statement of claim bringing an action for damages was issued, an extension of time application was premature.^[136] It was submitted the case of Millard^[137] was, in fact, relevant and confirmatory of having to determine the serious injury first. Unlike in the present case, in Millard, there was the correct form of process.^[138]
376. It was submitted the Court could make a direction or an order that the plaintiff file a summons seeking an extension of time or the proceedings could be commenced expeditiously in the form of a written statement of claim.^[139] The latter was a better and a safer approach based on the language of the section.^[140]
377. Millard was relevant, because there was already a written statemen of claim and the process had been followed.^[141] In that case, Mandie AJA noted the plaintiff had no cause of action until he satisfied the gateway requirements, therefore the application to extend the limitation period would have been futile unless and until the appropriate act was identified and its gateway requirements were satisfied in one way or another.^[142]
378. While the Court in Hayes found it appropriate to hear the matters together, an action for damages had to be on foot. The two applications could be heard together in the right order but there had to be the correct form of process.^[143]
379. The wording of s93 of the Act was relied on. The only way to damages was via a leave application.^[144] The LAA referred consistently to an action for damages.^[145]
380. Two alternatives were suggested as to the future conduct of this matter: first, to direct the filing of a summons on the originating motion and deal with it after the serious injury application has been decided; second, on a proper reading of the LAA, to adjourn what had happened so far. If leave was granted, then appropriate directions be made that the matter come back expeditiously before me for a determination of the limitation point.^[146]

The LAA application

381. Counsel for the plaintiff accepted this was a hard case on the merits and it was not shied away from. The plaintiff openly said she had made a conscious decision because of drug issues and a significant illness, and that was her explanation for delay^[147] – “A little bit of knowledge can be a dangerous thing in terms of she knows of the limitation period, but assumes it is finished and does nothing”.^[148]
382. It was submitted that it was not a hard and fast rule how long a solicitor should take to do things, and that an eighteen-month initial delay could be explained by what the solicitors needed to do to prepare a serious injury application.^[149]
383. It was accepted that the driver, Mr Rubina, was unlikely to give any meaningful evidence at trial if the matter proceeded and if he had been asked to give evidence much earlier, say 20 to 25 years ago, he would have had a much better chance of recalling the accident circumstances.^[150]
384. It was submitted that Mr Castellan might have been in a better position to see the accident than the plaintiff.^[151] It was conceded the Incident Report did not seem to be of assistance.^[152] Also, the police report did not have the benefit of a diagram or the layout.^[153]
385. In terms of subparagraph (d), it was submitted the nature and duration of the plaintiff’s disability was a very big factor that had to be taken not account.^[154]

Reply

386. In reply, counsel for the defendant said the statutory interpretation point was never opened, it came later in the day after the break.^[155] While there was not a formal order at the previous hearing, directions were given, which resulted in the LAA application being before the Court, with supporting affidavits.^[156]
387. Counsel also continued to rely on the decision in Hayes in relation to the plaintiff’s “action for damages” submission.^[157]
388. Counsel also relied on s9(1) of the CPA, which provides:

“Court’s powers to further the overarching purpose

(1) in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects –

(a) the just determination of the civil proceeding;(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for –

(i) the fair and just determination f the real issues in dispute; and(ii) the preparation of the care for trial … .”

389. Counsel for the defendant then supported the proposition that the plaintiff be directed to file a summons seeking relief for s23A and the Court could then proceed to determine both matters.^[158]
390. Section 2(1) of the civil proceeding Common Law Division Practice Note was also relied upon, which provides:

“The aim of the County Court in civil litigation is to list, hear and determine cases quickly and cost-effectively, consistent with the demands of justice and, in particular, with the requirements of the Civil Procedure Act.”

391. Counsel for the plaintiff again submitted the most expeditious way would be to direct the plaintiff to issue a statement of claim and summons seeking an extension of time. It was not contemplated there would be further submissions.^[159]
392. Counsel for the plaintiff also submitted the CPA does not allow the Court to ignore the specific directions under applicable statutes just so matters are dealt with expeditiously.^[160]
393. Counsel for the plaintiff provided written submissions elaborating on these points with further submissions in support the serious injury question application.

Overview

Statutory interpretation

394. Section 23A of LAA provides:

“23A  Personal injuries 

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

395. I accept that this Section means that until there is an action for damages (in this case, for negligence), an application for extension of time under the LAA cannot be made. Until leave is granted, there is only the potential action in damages.
396. On that basis, the plaintiff’s solicitor was required to obtain leave under s93 before making an application for an extension of time under the LAA.
397. While the Court of Appeal in Hayes^[161] thought it was appropriate for the trial judge to have heard both applications together, leave had already been granted by the trial judge in 2008 when the limitation application was determined a year later.
398. In Millard, Mandie AJA said an extension of time application would be futile until the gateway requirements were satisfied.^[162] There was already a written statement of claim and the process had been followed in that case.^[163]
399. As is set out earlier in this judgment, the plaintiff has satisfied the gateway requirements of s93.

Form of process

400. While I accept the “action for damages” submission, the plaintiff relied on a further “form of process” argument as a result of which it was submitted the LAA application was not properly before the Court.
401. The first originating motion issued in 2021 which included the LAA was never served, only the amened originating motion which related to the s93 application.
402. In those circumstances, it was submitted the Court should resist dealing with the merits of the LAA application that day and, if it did, there had to be some form of process to enable the Court to do so.^[164]
403. Looking back to the first day of hearing of this matter, I directed that the two applications be heard together. Accordingly, the hearing of both applications was adjourned to 2 March 2023 and further affidavits relating to the LAA application were filed by both parties.
404. The form of process argument was not raised until after the plaintiff’s evidence had been completed, when it became apparent the first originating motion which included the LAA application had never been served.
405. Counsel for the plaintiff submitted the Court could deal with issue in two ways – it could make a direction or an order that the plaintiff file a summons seeking an extension of time or the proceedings could be commenced expeditiously in the form of a written statement of claim.^[165] The latter was a better and a safer approach based on the language of the Section.^[166]
406. As I indicated during the hearing, in my view, it is not necessary to take either course.^[167]
407. The LAA application is properly before the Court following my direction on 6 December 2022 that the two applications be heard together.
408. Acting on that direction, both parties served a number of further affidavits addressing the merits of the LAA application. The hearing proceeded in relation to both applications and the plaintiff was cross-examined in relation to both.
409. In those circumstances, it was appropriate the Court deal with the merits of the LAA, and submissions were made by both counsel in relation thereto. Counsel for the plaintiff indicated there were no further submissions to be made.^[168] The hearing of the LAA application is therefore complete.
410. To take the course suggested by counsel for the plaintiff would only result in further unnecessary costs being incurred.
411. As the Common Law Division Practice Note provides:

“The aim of the County Court in civil litigation is to list, hear and determine cases quickly and cost effectively, consistent with the demands of justice and, in particular, with the requirements of the Civil Procedure Act.”

412. Section 9(1) of the CPA is in similar terms.
413. Accordingly, I make the following ruling on the LAA application.

Is it just and reasonable to extend time?

414. Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.^[169]
415. The plaintiff bears the onus of establishing it is just and reasonable to order that the limitation period be extended.^[170]
416. The plaintiff has “the positive burden of demonstrating that the justice of the case requires the extension”.^[171]
417. The considerations referred to in s23A of the LAA are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that takes account of them all.^[172]
     

     (a) The length and reasons for the delay

418. The relevant delay is the delay “between the accrual of the cause of action and the making of an application for an extension of time”.^[173]
419. The cause of action arose on 29 September 1991, and it was not until 2022 that the amended originating motion was served.^[174]
420. Counsel for the plaintiff conceded this delay was enormous, but not determinative of the application.^[175]
421. There was no contact between the defendant and the plaintiff from 16 November 1992 to 14 March 2018 or anyone on her behalf from 12 February 1993 to 14 March 2018.^[176]
422. Essentially, the plaintiff had three explanations for delay which she detailed very briefly.
423. First, having worked in a law firm in statutory benefits and as a claims officer, she had some knowledge of the limitation period but thought it expired after seven years (by 1998) and did not realise she could apply for an extension.
424. In my view, it is not enough that she just assumed the period had run out, and she should have made enquiries as to whether there could be an extension of time or her to bring a claim.
425. The onset of increased pain from 2015 and, more particularly, from 2018, was said to be another reason for her delay.
426. However, this explanation is inconsistent with the plaintiff’s own evidence as to the progress of her pain. As counsel for the defendant submitted, the plaintiff has had ongoing right elbow problems all the way through^[177] – as she deposed her elbow never really settled and her related physical restrictions never left – rather than just from 2015 or 2018. There was no proper explanation why she did not do anything earlier about her elbow condition.^[178]
427. She also deposed she knew she could probably apply to someone for some compensation, but it was easier to put it out of her mind because she was worried if she got money, she would spend it on drugs and would not be around for her children.^[179]
428. However, this explanation involves a concession she knew she could probably apply to someone for compensation, but she did not take any action in that regard.
429. On this limited evidence, the plaintiff has failed to explain why she did not seek legal advice until 2018, having openly said she made a conscious decision not to pursue her possible entitlements.
430. Further, as counsel for the defendant submitted, there was no real attempt by the plaintiff’s solicitors to address in any meaningful way, sub-paragraphs (a) to (f).^[180]
431. There was no attempt by those solicitors to explain any delay after engaged on the plaintiff’s behalf in 2018.
     

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

432. When delay is inordinate, as in the present case, that may be taken to be evidence of prejudice in itself.^[181]
433. Further, as in this case, there may be actual prejudice.
434. Understandably, counsel for the plaintiff had little to say on the plaintiff’s behalf in terms of this issue. In summary, he submitted Mr Rubina’s unavailability is not a major issue in this case and that Mr Castellan is in a better position than the plaintiff to give evidence as to the accident circumstances.
435. Having acknowledged the focus of the Court would be on prejudice and conceded McHugh J’s comments in Brisbane South about the rationale for the legislation assist the defendant’s case, counsel for the plaintiff submitted once the evidence had been given and looked at carefully, the prejudice cannot be as great as the defendant claims, simply by the mere unavailability of a witness.^[182]
436. While there is no dispute there was an accident and obviously the plaintiff was hurt, there is little evidence how and why the accident occurred.^[183]
437. There are numerous examples of specific prejudice in this case.
438. Firstly, the plaintiff’s recollection of the accident is confused, contradictory and totally at odds with the version given by Mr Castellan who was present with her when the accident occurred.
439. On the plaintiff’s own admission, she had been drinking “a bit” that day. The accident occurred about 8.00pm. She had had been drinking since lunchtime, but she had not been drinking very quickly, she had been drinking slowly.^[184]
440. Save for deposing she had stepped out onto the road to hail a taxi when she saw a car coming at her from the other direction, it was terrifying and she could not get out of the way, she did not remember much about it beyond that, except lying on the road after she was run over, and an ambulance attending and taking her to the Box Hill Hospital.
441. The Box Hill Hospital records on the said date set out that, according to the ambulance notes, there was a query regarding loss of consciousness. The plaintiff was unable to recall the nature of the accident. She was reported to have said she had been drinking alcohol all day and “also took 2 x serepax / ? ½ Rohypnol & smoking marijuana”.
442. While she could not recall taking two Serepax and would not have then taken Rohypnol, because she took that at night to go to sleep, she had smoked marijuana that day.^[185] She would have been affected by drugs and alcohol, but she would not say badly.^[186]
443. In court, the plaintiff drew a diagram showing the direction in which Mr Rubina’s car was travelling and also the direction in which the taxi was travelling. She placed the taxi on the far side of the median strip in Springvale Road travelling from her left. She was hit by Mr Rubina’s car from her right in the lane closest to the footpath on the other side of the median strip from the taxi.
444. This version was totally at odds with Mr Castellan’s description of the accident. He thought the taxi was on the other side of the median strip, closer to where he and the plaintiff had been standing. He thought the taxi was travelling in the opposite direction to that described by the plaintiff and was in the lane next to Mr Rubina’s car.
445. These conflicting accounts describe two different accidents with the taxi in a totally different place on the other side of the median strip on a six-lane carriageway. I do not accept that Mr Castellan’s account overcomes the plaintiff’s lack of memory and the absence of Mr Rubina.
446. On any view, this is not a simple rear-end collision. There are major liability issues, also involving contributory negligence, to be determined in circumstances where the plaintiff has a very limited memory of the accident, Mr Castellan’s version differs significantly from hers, and the driver, Mr Rubina, has no recollection of the accident.^[187]
447. Significantly, Mr Rubina is now aged ninety-one, and not only can he not remember being involved in this accident, but cannot remember having been involved in any accident. I totally reject the submission by counsel for the plaintiff that his absence makes no difference to this case.
448. There are also a number of other witnesses who are unavailable – Ambulance Victoria, Victoria Police – and medical records that no longer exist. These are described in detail in the affidavits of Ms Attard, solicitor, and include, inter alia, records from Bethesda Hospital, Epworth Healthcare, Pakenham Super Clinic, Blackburn Clinic and East Burwood Clinic.
449. While the police officer, Leanne Hughes, has been located, she is no longer in the force and has not been for some time, and there were no details of any knowledge she had of this particular accident.
450. Counsel for the defendant also submitted there was prejudice, as it cannot consider role played by other events such as the plaintiff’s fall after leaving hospital, the skateboard fall and another transport accident in November 1992 when the medical records are not available.
451. The defendant had also lost the opportunity to have the plaintiff medically examined from 1991 to 2019.
452. While there is potential prejudice in relation to medical issues, the major prejudice relates to the state of the evidence as to the accident circumstances.^[188]
453. Sub-paragraph (c) was not relevant to this application.
     

     (d) the duration of any disability of the Plaintiff arising on or after the accrual of the cause of action

454. Counsel for the plaintiff submitted the nature and duration of the plaintiff’s disability was a very big factor that had to be taken into account.^[189]
455. However, as Beach J stated in Van Gerven,^[190] it appeared to have been authoritatively stated that this paragraph dealt with legal as opposed to physical or mental disability.
456. Therefore, this subsection has no relevance to the present case, as no question of legal capacity arose.
     

     (e) The extent to which the Plaintiff acted promptly and reasonably once she knew of 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 on the part of the Plaintiff

457. This issue was addressed by the defendant in its written submissions. It was submitted it was blatantly apparent that the plaintiff did not act promptly between the accident date and instructing solicitors, despite the ongoing elbow condition continuing to impact on her life, admitting having had worked in worker’s compensation and accepted she knew of time limits. She was also sent a letter by the defendant dated 19 October 1992 advising her of her statutory entitlements and appeal rights, to which no response was received.^[191]
     

     (f) The steps, if any, taken by the Plaintiff to obtain medical, legal of other advice and the nature of any such advice she may have received

458. In written submissions, counsel for the defendant dealt with this issue briefly. It was submitted that the plaintiff has not satisfactorily explained this delay. If she could raise two children, albeit having drug issues, she had the requisite capacity to seek and engage legal advice.

Findings

459. Synthesising all the matters required to be taken into account by s23A of the LAA and having regard to the relevant circumstances of the case, I have formed the view that it is not just and reasonable to extend the limitation period.
460. There is no satisfactory explanation for the inordinate delay of more than thirty years.
461. Taking into account the present state of the evidence about the accident circumstances, the unavailability of witness and the destruction of documents, in my view, the defendant cannot, in 2023, achieve a trial that is acceptably fair.^[192]
462. The application is dismissed.