IN THE COUNTY COURT OF VICTORIA Revised AT … · TRANSPORT ACCIDENT COMMISSION Defendant ---...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

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SERIOUS INJURY LIST Case No. CI-14-04285

NURIJA DAIC Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant

--- JUDGE: HER HONOUR JUDGE K L BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 20, 21 and 22 October 2015

DATE OF JUDGMENT: 14 December 2015

CASE MAY BE CITED AS: Daic v Transport Accident Commission

MEDIUM NEUTRAL CITATION: [2015] VCC 1817

REASONS FOR JUDGMENT

--- Subject: TRANSPORT ACCIDENT Catchwords: Damages – transport accident – serious injury – injury to the left upper

limb – Limitation of Actions Act 1958, s23A extension of time application

Legislation Cited: Transport Accident Act 1986, s93(4)(d); Limitation of Actions Act 1958, s23A

Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Dordev v Cowan & Ors [2006] VSCA 254; Peak Engineering v McKenzie [2014] VSCA 67; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Millard v Victoria [2006] VSCA 29; Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Delai v Western District Health Service & Anor [2009] VSC 151

Judgment: Applications dismissed. ---

APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr P G Nash QC with Mr C B Thomson

Hymans Solicitors

For the Defendant Mr J P Gorton QC with

Ms J Frederico Solicitor to the Transport Accident Commission

VCC:DC/LP/AS 1 JUDGMENT

Daic v Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff

applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986

(“the Act”) to bring proceedings to recover damages for injuries suffered by

him arising out of a transport accident (“the accident”) which occurred on

31 December 2005 (“the said date”).

2 Section 93(6) of the Act provides:

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

3 The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long-term impairment or loss of a body function”.

4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is

the left upper limb.

5 The enquiry under subparagraph (a) of the definition 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.

6 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, be fairly

described as at least “very considerable” and more that “significant” or

“marked”? – see Humphries & Anor v Poljak.1

7 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

1 [1992] 2 VR 129 at 140-1



not recognise is that the mental disorder can, of itself, constitute or be the

producer of the impairment of a body function: see Richards v Wylie.2

8 There was also an application for an extension of time pursuant to s23A of the

Limitation of Actions Act 1958.

9 The plaintiff swore four affidavits and was cross-examined. He also relied on

an affidavit sworn by his daughter, Amira on 25 September 2015. The

defendant relied on an affidavit sworn by its solicitor Simone Leith on 6 August

2015 and also an affidavit sworn by Michelle Castle, lump sum co-ordinator,

on 20 October 2015. Both parties relied on medical reports and other material

which was tendered in evidence.

The Plaintiff’s evidence

10 The plaintiff is presently aged seventy-four, having been born in September

1941 in Bosnia.

11 Having worked in Bosnia as a builder’s labourer, the plaintiff migrated to

Austria aged nineteen, where he continued similar work, and then came to

Australia with his wife and child.

12 The plaintiff’s work history since the 1960 in Australia has included work on

the railways, sugar fields, tobacco farms and operating his own roadhouse.

13 Having settled in Victoria permanently in 1972, the plaintiff worked at

Yallourn W power station as a truck driver for about a year-and-a-half before

moving to APM Mill, where he worked for two years as a carpenter. Whilst in

that employ in 1987, the plaintiff injured his back lifting boards (“the work

injury”).3

2 (2000) 1 VR 79 3 Transcript (“T”) 18



14 Simon Parsons acted for the plaintiff in relation to his work injury claim. The

claim settled for $9,000.4

15 In 1987, the plaintiff stopped work and then worked for a short time with

James Hardie. He left that job because he thought he had asbestosis.

16 The plaintiff went on a disability support pension because of his back

condition. He has been on that pension because he cannot work anymore.5

17 The plaintiff deposed that from 1987 until the accident, he carried out no

physical work whatsoever and the only minor problem from which the plaintiff

occasionally suffered was back pain.

18 The plaintiff did not think pre accident there was anything else. He was able to

dig the garden and clean. He stopped gardening straight after the accident.6

19 The plaintiff confirmed he had had back pain since the eighties that was

enough to stop him working.7 The pain was worsening.8

20 On the said date, whilst driving his motor vehicle along Point Nepean Road,

the plaintiff was involved in a collision with a vehicle that crossed onto his side

of the road, striking his vehicle heavily on the right pillar which separated the

driver’s door from the back passenger door (“the accident”).

21 On impact, the plaintiff’s vehicle started to spin and the plaintiff swung the

steering wheel to the right.9

22 Initially, the plaintiff felt severe low back pain and also pain in his shoulders,

head and chest. He was attended to by an ambulance at the scene and then

taken to Rosebud Hospital, where he was discharged later that day. He then

had pain in both shoulders and chest, which he found out later was a fractured

4 T25 5 T20 6 T129 7 T128 8 T20 9 T56



rib. He had low back pain, headaches and head pain across his chest where

he had been bruised by his seatbelt.

23 The plaintiff recalled he told the ambulance and hospital that he had

significant pain in both shoulders.10

24 The plaintiff could remember having pain in his shoulders in the week after the

accident.11

25 On 3 January 2006, the plaintiff attended Dr Won at Southern Cross Medical

Centre in Hampton Park (“the Medical Centre”). The plaintiff was then having

quite severe chest pain and bilateral shoulder pain. He was having difficulty

breathing, and certainly difficulty sleeping.

26 The plaintiff recalled telling Dr Won about right-sided low back pain, pain in

both shoulders, right-side headache pain and bruising to the chest.

27 In the plaintiff’s Claim for Compensation dated 23 January 2006, injuries were

listed in answer to Question 26, as:

“Fractured ribs, right side, low back pain, shoulder pain – left side, shoulder pain – right side, headache, bruise or bruising caused by seat belt.”

28 The plaintiff could not recall the circumstances in which the Claim Form was

completed. He did not complete the form or put ticks or crosses in the boxes

indicating he had never had a work-related injury and had not made a

worker’s compensation claim previously.12

29 Dr Voon at the Medical Centre has also treated the plaintiff for his accident

injuries since 2006. The plaintiff told him about his left shoulder problems all

the time.13

10 T59, T126 – Plaintiff’s counsel conceded there was no mention of the left shoulder in the ambulance

report 11 T61 12 T62 13 T86



30 Eventually, the plaintiff was referred to Dr Thomas at the Victorian

Rehabilitation Centre (“VRC”). The plaintiff had physiotherapy, hydrotherapy,

occupational therapy and psychological treatment at the VRC.

31 Maybe the physiotherapist did not record the plaintiff’s left shoulder

complaints, but the plaintiff definitely told him.14 He also told Dr Thomas

about left shoulder pain.15

32 The plaintiff deposed that by May 2006, the neck pain which he had

constantly been complaining about had improved with physiotherapy. In

cross-examination however, he disagreed that there had been an

improvement, as Dr Voon noted.16

33 The plaintiff was referred to Dr Lee, a pain specialist at the VRC. The plaintiff

was then still having mid to low back pain, some neck pain, and also difficulty

with Post-Traumatic Stress Disorder (“PTSD”) due to the fact that he could not

sit in a car and travel as he became nervous and upset.

34 At the VRC, the plaintiff had exercises and hydrotherapy for his left shoulder.

He had left shoulder pain at that time; not as much as now, but the pain was

there.17

35 By October 2006, the plaintiff’s general practitioner, Dr Voon referred him to

Mr Khan, orthopaedic surgeon, who arranged x-rays of his thoracic spine and

both shoulders and a nuclear bone scan in November 2006.

36 The plaintiff was then still complaining quite regularly of pain to both shoulders

and in the back. He knew the back pain was an aggravation of his work

injury, but the pain in both shoulders was a new one, and even though he was

taking regular medication, it was not improving.

14 T65 15 T66 16 T66 17 T68



37 The plaintiff told Mr Khan he had pain in both shoulders. This appointment

was arranged by the plaintiff’s solicitor Mr Bektas to seek Mr Khan’s opinion

about surgery.18 The plaintiff did not believe that when he saw Mr Khan in

November 2006, that he was able to move his left arm without pain.19

38 Eventually, the plaintiff was referred by Mr Khan back to Dr Thomas at the

VRC for further exercises and treatment.

39 By 2 June 2009, the plaintiff was still complaining of left shoulder pain, and

Dr Voon referred him for an ultrasound. Following that investigation, the

plaintiff finally discovered he had a full thickness tear of the left shoulder. Dr

Voon thought that injury was a result of the accident.

40 The plaintiff had problems with his left shoulder from the first day after the

accident. He could not tell how long after the accident he was sent for that

test. He was not surprised to hear he had a tear, because he had pain.20

41 The plaintiff denied that after the ultrasound, he attended Monash Medical

Centre, rather than ask the defendant to pay for him to see a specialist,

because he thought the shoulder tear had nothing to do with the accident.21

42 By that stage, the plaintiff was having difficulty carrying out any domestic work

or working in the garden. He was having trouble driving his car, but that was

due to glaucoma in both eyes.

43 The plaintiff confirmed he had complained about bilateral shoulder pain to his

doctor in 2012.22

44 By July 2013, the plaintiff had had heart surgery, undergoing a quadruple

bypass.

18 T70 19 T71 20 T75 21 T86 22 T104



45 The plaintiff’s shoulder injuries, particularly the left, were causing him difficulty

sleeping, with problems when he turned on his left side. He had numbness

with pins and needles. He had to sleep flat on his back, and often would

simply lie on the couch and sleep there. His lack of sleep made him very

tired, grumpy and upset most mornings.

46 As of his first affidavit of 5 September 2014, the plaintiff still suffered quite

severe left shoulder pain. Even though he was too old to have surgery, he

was still severely restricted in many activities he used to do prior to the

accident. His social life had changed considerably. He no longer drove, but

that was due to his eyes. He was most reliant on other people to help with

activities he previously carried out without a second thought.

47 In his most recent affidavit, sworn 25 September 2015, the plaintiff noted he

had back pain prior to the accident and had taken medication, usually Panadol

or Panadeine Forte, when it was more painful. However, his back did not

cause him any major trouble getting to sleep. He could still be reasonably

active, as long as he was careful and did not overdo things. He had learnt to

cope well over the years with his back pain which was mild to moderate.

48 Since the accident, back pain had become much worse. The plaintiff also had

pain in his neck and both shoulders. The shoulder pain varied. The left was

very painful immediately after the accident, then for a time, the right shoulder

became more painful, but in the later years, the left had been the most

disabling symptom of all. He confirmed he had continuing problems with both

shoulders, but the left was the worst, and much worse now.23

49 The plaintiff demonstrated he could lift his left arm out to 90 degrees. That had

been the case since the accident.24

23 T57 24 T124



50 The plaintiff’s sleep has continued to be severely disrupted since the accident.

He is woken by nightmares of an accident or else by pain, mostly in the left

shoulder. The left shoulder is painful during the day, even when at rest.25

The right is also painful, but not usually at rest. However, the left shoulder is

painful most of the time and a constant burden to him. He cannot get rid of the

pain.

51 Pre-accident, the plaintiff enjoyed fishing from the riverbank or from the shore.

He went fishing with his children every second fortnight. He looked forward to

taking his grandchildren fishing. However, mainly because of his injury to his

shoulders, which prevents him from being able to cast and hold the rod, he

has had to give up fishing since the accident. That was a great

disappointment to him, as it was his favourite activity.

52 In re-examination however, the plaintiff said he could not recall the last time

he went fishing. It was a long time ago – before the accident.26

53 Pre-accident, the plaintiff enjoyed gardening, maintaining a very productive

vegetable garden and numerous fruit trees. He provided fruit and vegetables

for family and friends, but had been prevented from gardening activities since

the accident. He was now doing little more than poking about a bit and doing

some watering. He no longer pruned the fruit trees. He is unable to dig and

shovel because of increased pain in his back, neck and shoulders.

54 Despite his back pain pre-accident, the plaintiff could still manage well in the

garden, working within his limitations. Not being able to keep up the garden

since the accident has been extremely disappointing for him.

55 The plaintiff can no longer keep up his furniture-making and carpentry work,

which was previously a great source of pride and enjoyment, making furniture

for his own house and for his children. Pre-accident, he did a lot of repair

25 T125 26 T129



work for his family and friends. That work was enjoyable and very satisfying,

and he would now love to be able to teach his grandchildren these skills.

56 The plaintiff had a workshop in his garage with equipment and setup, but he

was no longer able to use it properly because of the pain in his body, mostly

his shoulders, but also his neck and the worsening lower back pain.

57 The plaintiff confirmed that pre-accident, he did not have any problems

sleeping, but he now has problems with nightmares and because of pain and

discomfort, mainly in his left shoulder. Lack of sleep results in irritability.

58 Pre-accident, the plaintiff was fully independent around the house, and had to

do many of the heavier household chores because his wife had a disability.

He did the washing, hung it up, chopped up her food, and assisted with heavy

activities in cooking. He did the vacuuming and maintained the garden.

59 However, since the accident, the plaintiff has had difficulty doing all those

tasks because of pain, particularly in the shoulders, but also the increased

pain in his lower back and neck. He is no longer independent domestically,

and he relies on his daughter, son and wife to attend to most household tasks,

and on his grandchildren to do the mowing. Without the assistance from his

family, the plaintiff would not be able to stay at home because of his accident-

related disability. He feels a burden on his family.

60 The plaintiff used to be able to manage all the shopping, helping his wife with

heavier tasks. He can no longer lift other than very light shopping, and has to

wheel the groceries into the house.

61 Before the accident, the plaintiff took ordinary Panadol and occasionally

Panadeine Forte if his back became particularly sore. However, since the

accident, he has had to take Panadol Osteo every day, two in the morning

and one at night, and he also takes Panadeine Forte more frequently. That

medication causes constipation, so he limits his intake. He mainly needs this



medication for his left shoulder, which is now his worst injury, followed by his

lower back.

62 The plaintiff now also suffers from pins and needles and numbness in his left

shoulder, arm and hand, which adds to the discomfort from the pain and also

to his misery.

63 In cross examination, the plaintiff was asked about an attendance with Dr

Clayton Thomas in mid 2014. The plaintiff agreed his back was then killing

him. It was his worst problem. Dr Thomas told him to come back and see him

if he needed. The plaintiff had not gone back to see him because he cannot

continue to take the Lyrica Dr Thomas prescribed because of his heart

condition. 27

64 The plaintiff recalled his left shoulder was very painful immediately after the

accident, and the other parts of his body were not really as bad, though he felt

generally sore and painful. He deposed that the ambulance report set out that

he reported pain in his left shoulder. The plaintiff’s back and neck became

worse later on as he cooled down.

65 The accident happened very suddenly, and the plaintiff found it very

frightening. He thought he was going to be killed.

66 The plaintiff had physiotherapy for some months after the accident, with

treatment for his shoulders, neck and lower back. He bought a home

massage machine.

67 In the first couple of years after the accident, both shoulders were painful, but

probably the right was worse. However, gradually the plaintiff’s left had

become much worse, and is now his dominant injury. This pain disturbs his

sleep and causes him constant pain when he is awake.

27 T115



68 Because the plaintiff’s right shoulder had been injured, he cannot use it more.

He finds he is terribly restricted in social, recreational and leisure activities.

69 The plaintiff confirmed he still has problems with the mental stress of the

accident, with traumatic nightmares causing sleep problems.

70 The plaintiff submitted he had suffered a serious injury to one or other of his

injuries, (left or right shoulder or spine) but particularly his left shoulder. The

combination of all the other aches and pains made his left shoulder so much

more difficult to cope with, because in attempting to relieve his left shoulder

pain, he causes pain in other parts of his body.

Non-accident-related conditions post accident

71 There was lengthy cross-examination about the plaintiff’s other health issues

since the accident.

72 The plaintiff explained that the reason he was slow to get into the witness box

was his lower back. His knees are not too bad.28

73 The plaintiff disagreed his neck had improved in 2006 as Dr Voon noted.

Actually, the situation with his health never improved.29

74 The plaintiff has now got pains all through his body: sore elbows, shoulders,

hips, feet pain, neck and upper back pain, not really middle lower back pain,

but more lower back.30

75 The plaintiff had problems with cholesterol, diabetes control, and some

dizziness.31

76 The plaintiff saw a neurologist at Monash in October 2007 for dizziness. The

plaintiff did not know what caused it. He agreed dizziness started a year and a

half after the accident.

28 T19 29 T77 30 T68 31 T78



77 Even now, the plaintiff has a problem when he stands up, he does not move.

When praying, sometimes he sort of falls down.32 It worries him why he is

falling over. When he wakes up, he walks like a drunk to open the curtains

and he has to hold onto the bed. That has happened regularly lately. The

plaintiff agreed this problem would make it difficult for him to do things like

woodwork or gardening.33

78 The plaintiff takes tablets for dizziness but there are side effects and problems

with his heart so he does not take them all the time. He then said he has had

this problem with dizziness problems for years, since straight after the

accident.34

79 The plaintiff told his doctors about his left shoulder when he was seen for

unrelated health issues.35

80 The plaintiff’s diabetes is up and down, but he controls it with medication, now

taking insulin all the time.36

81 The plaintiff has had problems with his breathing connected to his heart. Dr

Tran has treated him in this regard, referring him for open heart surgery.37 The

plaintiff thought he told Dr Tran of his left shoulder condition on examination in

December 2007.38

82 The plaintiff still has difficulty breathing. If he goes for a walk early in the

morning in cold weather, he has problems. There was no chance he could

now try to dig in the garden, but that was because of his shoulders.39

83 The plaintiff has ongoing problems with tinnitus in both ears. Even now, he is

like an “ocean”. From time to time, he can hear well. Other times, his hearing

32 T79 33 T80 34 T121 35 T81 36 T85 37 T81 38 T82 39 T99



just broke up.40 This condition annoys the plaintiff a lot. It makes it difficult for

him to go and meet with friends or family.41

84 The plaintiff agreed he was depressed in 2008 because of health issues. He

was worried about his lungs, scared of cancer, had back pain for many years

and he also had diabetes.42

85 The plaintiff has had problems with his bowels and had two colonoscopies

and also a gastroscopy.

86 The plaintiff was advised he had a carpal tunnel problem. His blood pressure

is all right now.43

87 The plaintiff agreed he had medical issues that were affecting many different

parts of his body. He denied when he saw Dr Tran on 1 May 2008 for chest

pain he told him he was not in pain.44

88 The plaintiff has daily problems with his feet related to diabetes. His feet sort

of get cold and then hot and are painful.45 He cannot walk very much, and

has to stop after about a kilometre and lie down. That is almost every day

lately. He agreed that would make it very difficult to even leave the house. His

feet problem would stop him doing woodwork and standing in front of a bench.

For years, the plaintiff has also had pins and needles in his feet at night.46

89 The plaintiff agreed his leg pain was bad enough that he required Panadeine

Forte in 2011. In July that year, he told Dr Hunt his feet were very painful,

particularly the left, and were keeping him awake at night. This is still the

40 T82 41 T111 42 T83 43 T83 44 T84 45 T86 46 T87



case. The plaintiff wakes two or three times or more a night because of foot

pain. This was not an exaggeration – “It was 100%.”47

90 From time to time, the muscles on the back of the plaintiff’s legs, below the

knee go numb. He gets fluid and swelling in his legs. He has to lie down and

rest when that happens, and that is a problem for him. The plaintiff agreed this

was his main problem when he saw Dr Chan in December last year.48

91 The plaintiff cannot drive because of his eyes.49 He sees people in the dark,

like in a fog. He had an operation on his eyes three weeks ago.50 The plaintiff

then said he did not drive much because of his shoulder,51 however, he

agreed he stopped driving because of his eyesight.52

92 The plaintiff had cancer in the kidneys in March 2010 and was put in a list for

removal of part of his kidneys. He agreed that was very stressful.53

93 The plaintiff agreed his heart and kidney problems scared him.54 He agreed

he told Dr Thomas since his heart operation he had lost motivation and

enthusiasm.55

94 The plaintiff could not remember in February 2011 if his left shoulder was not

a big problem when he attended Monash Medical Centre for treatment of

kidney cancer when told a list of complaints at that time did not include the left

shoulder.56

47 T100 48 T120 49 T87 50 T88 51 T112 52 T113 53 T89 54 T109 55 T115 56 T98



95 The plaintiff has also had a gall bladder infection requiring the removal of his

gall bladder in 2013.57 He had a good result from that surgery and no longer

has pain.58

96 The plaintiff does not tell doctors who examine him for unrelated conditions

that he has got a problem with his left shoulder.59

97 The plaintiff has had problems with sleeping due to his snoring. He did not tell

Dr Tran he could not sleep because of shoulder pain. Sometimes shoulder

pain stops the plaintiff sleeping if he turns on his left side.60 The plaintiff had

treatment for sleep apnoea in 2013.61 He had problems using the mask so no

longer does so.62

98 The plaintiff agreed with all the other problems with the rest of his body, they

were so much greater than his shoulder problems that it did not really matter

to him whether he could bring a case for his car accident or not. However, the

plaintiff denied that was the reason why he did not give Mr Bektas the

information he requested in his letters.63

99 The plaintiff agreed that with his diabetes, heart, breathing, foot pain and

vision problems he could not go fishing these days, or could not do a whole lot

of vegetable growing, could not make furniture, could not chop wood, dig

holes in the garden, or do the vacuuming or wash the clothes.64

Section 23A application

100 The plaintiff’s evidence in this regard, both in his affidavits and viva voce

evidence, was at times contradictory and difficult to understand.

57 T90 58 T109 59 T102 60 T103 61 T107 62 T108 63 T102 64 T128



101 In his first affidavit sworn in September 2014, the plaintiff described attending

Nowicki Carbone (“Nowickis”) in September 2006 to enquire whether he could

take any action in relation to the accident. The plaintiff saw Mr Sam Bektas,

who took instructions and told the plaintiff he would get in contact with him.

102 Despite the fact that the plaintiff contacted Mr Bektas a number of times, and

the plaintiff’s daughter made contact with that office, the plaintiff heard nothing

until 12 June 2012, when he received a letter from Mr Bektas, who was then

practising at Victorian Compensation Lawyers (“VCL”), advising him he was

no longer pursuing the plaintiff’s claim.

103 The plaintiff deposed that Mr Bektas did not advise him earlier whether he had

any common law rights, or whether he was going to investigate a claim or

about any other matters whatsoever.

104 In cross-examination, the plaintiff said Mr Bektas had told him they were going

to go ahead, and would continue with his case.65

105 The plaintiff thought Mr Bektas was going ahead.66 He did not say he was not

going to help him.67 The plaintiff asked him whether he could do anything for

his case and Mr Bektas told him –“Yes no problem.”68 Mr Bektas said he

would go on with the case.69

106 The plaintiff deposed that this was the limit of their contact. Having seen Mr

Bektas just once, the plaintiff never saw him again. Mr Bektas never asked

him to attend his office, and every time the plaintiff rang to make an

appointment, Mr Bektas was either too busy or not available to see him. The

plaintiff, being totally unaware of legal issues, left the matter totally to Mr

Bektas, who said he was an expert in the area.

65 T33 66 T46 67 T47 68 T41 69 T49



107 The plaintiff had been advised he was now outside the six-year period in

which to issue common law proceedings, but he was never advised he had

the possibility of seeking common law proceedings or that there was a six-

year limit. He left it all up to Mr Bektas, who spoke his language, and he was

totally in his hands as to how to proceed.

108 In his second affidavit, sworn on 29 July 2015, relating solely to the extension

of time application, the plaintiff exhibited a letter to him from Mr Bektas of 29

September 2006,70 enclosing clinical notes and highlighting the plaintiff’s

instructions were essential for the proper preparation of his matter for trial.

The plaintiff was asked to make written comments on the document and

contact Mr Bektas upon receipt.

109 The plaintiff confirmed after that letter, Mr Bektas advised him that he was

now starting his own firm. Mr Bektas requested that he take the plaintiff’s file

over to his new office. The plaintiff was happy to do so.

110 In this affidavit, the plaintiff noted that he consulted Mr Bektas just once, on or

about 22 November 2007. Mr Bektas never asked him to attend his office,

and every time the plaintiff rang to enquire about his matter, Mr Bektas’

assistant advised that Mr Bektas was busy or in conference. The plaintiff left

the conduct of his claim to Mr Bektas.

111 As the plaintiff was concerned about not being advised of the progress of his

claim, he asked his daughter-in-law, Amira Daic (“Amira”), to contact VCL on

his behalf to request an update, which she did on or about 30 January 2012.

112 Amira was advised by Mr Bektas he apparently had concerns regarding the

plaintiff’s matter and could not represent him “no win, no fee”. Exhibited to

that affidavit was a letter from Mr Bektas to the plaintiff of 12 June 201271

70 T130- original tendered 71 T130 – original tendered



confirming a letter of 14 February 2008 and a telephone conversation

between Amira and VCL on 30 January 2012.

113 In the 12 June 2012 letter, Mr Bektas noted having met the plaintiff without

charge on 22 November 2007 for an initial screening appointment:

“We advised you of our concerns in relation to your claim and confirmed we did not propose to act for you.

Specifically you will note we were unable to provide you with a written guarantee of your reasonable prospects of success as required for us to proceed with your matter on a no win no fee basis.

We confirm your instructions you lost a contested WorkCover matter in 2000 at the County Court and you were granted a disability support pension on 23 June 1988 due to your longstanding low back condition.

Should you have any queries please feel free to contact this office.”

114 The plaintiff deposed he had now been advised he was outside the six-year

period, but he was never advised he had the possibility of seeking common

law proceedings or that he had a six-year limit. He left it all up to Mr Bektas.

115 In his third affidavit, sworn 13 April 2015, the plaintiff deposed that at the initial

attendance with Mr Bektas in September 2006, Mr Bektas advised him that he

was happy to represent him.

116 Following that initial attendance, the plaintiff was under the impression

Mr Bektas would make contact with his treaters to obtain medical information

in support of his claim. That was confirmed by the receipt of the clinical notes

enclosed in the 29 September 2006 letter.

117 Mr Bektas took over the plaintiff’s claim from Nowickis in about November

2007; the exact date the plaintiff could not recall.

118 During the time the plaintiff’s claim was handled by Mr Bektas at VCL, the

plaintiff conferred with him on one occasion on or about 22 November 2007.

He could not recall the discussion at that time. The plaintiff was under the

impression Mr Bektas would pursue his claim, as he requested he sign a

medical authority enabling him to get medical information.



119 As the plaintiff was not receiving regular updates, or any written

correspondence, he attempted to contact Mr Bektas by phone numerous

times and left many messages for an update in respect of his matter, but

never received a call back.

120 The only correspondence was the letter of June 2012. The plaintiff did not

believe he had received a letter of 14 February 2008, referred to in the June

2012 letter, if it was sent.

121 In the February 2008 letter, an update was requested as to the plaintiff’s

current treatment, details of his treating doctor and pharmacy and his

incapacity for work as well as details of any impending medical appointments.

The plaintiff was advised if he had any further queries to contact VCL.

122 The plaintiff was not aware Mr Bektas had declined to act for him. Had the

plaintiff known in 2008 or earlier than 2012 that Mr Bektas refused to act, then

the plaintiff would promptly have sought new solicitors. Upon learning that

information, the plaintiff assumed everything was being done, and, having

engaged one solicitor to act for him, he did not consider needing to see

another.

123 The plaintiff cannot remember providing Mr Bektas with any documents.72 He

could not recall providing Mr Bektas with anything.73 It was difficult to recall

things.74

124 As the plaintiff was eager to find out about the progress of his claim, he asked

Amira to contact Mr Bektas. She left many messages for him to return her call,

which he finally did on or about 30 January 2012. Amira was advised by Mr

Bektas that he apparently had concerns regarding the plaintiff’s matter and

could not represent him on a no win no fee basis. The plaintiff then sought to

obtain a copy of his file, which he received in late 2012.

72 T42-3 73 T44 74 T45



125 On Amira’s advice, the plaintiff instructed Hymans Solicitors in relation to his

claim in or about February 2013. That firm submitted an impairment benefit

claim on or about 17 September 2013, which the plaintiff believed the

defendant was able to investigate, assess and resolve without suffering any

prejudice through delay in submission of the claim.

126 In his final affidavit of 25 September 2015 the plaintiff sought to correct

several errors in his Section 23A application.

127 The plaintiff could in fact recall seeing Mr Bektas twice in 2006, with the

second meeting a few weeks after the first. At that time ,the plaintiff was

given no specific or particular advice. Rather, the attendance was to sign

documents.

128 When asked about the 2006 dates, the plaintiff could not remember.75 He

thought he had seen Mr Bektas twice.76

129 The plaintiff had specifically sought out Mr Bektas because he could speak

Bosnian. The plaintiff can read simple written English but has difficulty

understanding more complex letters, and relies on people like Amira to

translate. Whilst it turned out Mr Bektas’ command of Bosnian was not as

good as the plaintiff may have liked, they were able to converse reasonably

well.

130 When the plaintiff first saw Mr Bektas, the plaintiff consulted a solicitor

because he believed he might be entitled to some compensation for his

accident injuries.

131 Whilst he earlier deposed he was never advised he had the possibility of

seeking common law proceedings for damages, the plaintiff confessed he did

not understand the meaning of that term, and did not understand any court

75 T31 76 T32



processes. All he sought was to explore his entitlement to his accident injury,

and Mr Bektas told him he thought he had a case for compensation.

132 The plaintiff referred to the reference to a consultation on 22 November 2007

in his second affidavit. Upon reviewing his affidavits with his advisers, the

plaintiff recognised that statement was incorrect. He did not believe he ever

saw Mr Bektas after the first two occasions in 2006, and he did not actually

ever attend at the VCL offices.

133 The plaintiff did not know how the 22 November 2007 date got in his

affidavit.77

134 When the plaintiff saw Mr Bektas in 2006 he thought they communicated

reasonably well, and he understood Mr Bektas was going to sort out his

matter and arrange for some compensation. Mr Bektas said he would take

matters on for him, and therefore the plaintiff left them in his hands. The

plaintiff does not understand how the system works, but he thought Mr Bektas

would be able to get him some compensation.

135 After a time, the plaintiff wondered why it was taking so long, but he left it to

the solicitor. The plaintiff confirmed he then attempted to ring VCL five or six

times to see how his matter was going, but Mr Bektas was never available.

136 The plaintiff could not recall the dates when he had tried to get Mr Bektas. He

nearly gave up, because each time he was told he was not available. The

plaintiff agreed it was possible that these efforts all started at the end of 2011

when he was worried about the six years running out.78

137 The phone calls were in 2011 or 2012. The plaintiff could not remember.

Mr Bektas was always busy in 2010. He did not know whether he called him

in 2008 or 2009.79

77 T35 78 T40 79 T54



138 Eventually, perhaps in about late 2011, the plaintiff needed someone else’s

help, and he asked Amira to contact Mr Bektas’ office, but Mr Bektas was too

busy to speak to her.

139 The plaintiff did not know the six years ran out at the end of 2011.80 He then

agreed by the beginning of 2012 he knew he had missed the six-year period.81

140 Eventually, the plaintiff received the letter of 12 June 2012 but he did not

understand it, and showed it to Amira and asked her to explain it. The

contents made him very surprised, as Mr Bektas had initially said he had a

case.

141 Amira told the plaintiff she would call Mr Bektas to see what could be done.

She tried to get to speak to him, but could not. She then located another

solicitor.

142 Amira finally got onto Mr Bektas.82

143 The plaintiff confirmed she told him she had spoken to Mr Bektas and he said

VCL could not do his case. He could not explain how Amira said the first she

knew of any problem with the plaintiff’s claim was the June 2012 letter.83

144 Amira has translated documents for the plaintiff. At times translations were

done very quickly. He was told to sign, and probably that is what happened.

He trusted her.84 The plaintiff “did not come to court to lie”.85

145 Having been shown the letter to him from VCL dated 14 February 2008, the

plaintiff was unsure whether he received it, but he probably did.

146 The plaintiff referred to the June 12 2012 letter to him from VCL.

80 T38 81 T47 82 T36 83 T45 84 T30 85 T31



147 The only County Court matter that the plaintiff had about that time, was

against Dr Cousins and the La Trobe Hospital in relation to a hernia operation

in about 1989.

148 Simon Parsons and Co solicitors acted on his behalf in relation to the medical

negligence claim. He attended their offices several times. There was never an

interpreter present.

149 The plaintiff has been advised that the court records showed the action

against Dr Cousins came on for hearing in February 2002. The plaintiff could

recall he was told to go to Melbourne. He met a barrister outside the court.

The plaintiff did not have an interpreter. He did not understand what was

happening, and had to answer questions as well as he could without an

interpreter.

150 The plaintiff then learned the judge had thrown out his case, but the plaintiff

did not know why. The plaintiff was ordered to pay the legal costs of the other

parties, of about $11,000. This sum came out of his DSS payments, and then

the plaintiff became bankrupt.

151 During that proceeding, the plaintiff did not understand what was going on and

he left the case to his solicitors. He did not gain an understanding that the

case had to be commenced within a limited period of time. He knew he had

lost it, but did not understand why.

152 The plaintiff deposed that he now understands that his case in respect of the

transport accident should have been commenced within six years. He did not

understand that until meeting with his current lawyers. He had given his case

to Mr Bektas, who spoke his language and was an expert in the field, and

trusted in him, and left it in his control.

153 Having had the previous experience of instructing solicitors who did not

understand his language, the plaintiff thought it essential to engage a solicitor



with whom he could communicate. Mr Bektas never told the plaintiff he had to

start his case within six years, nor did he tell him he could not conduct his

case until he sent him the 12 June 2012 letter.

154 The plaintiff was cross examined in relation to his medical negligence claim.

155 Simon Parsons to the plaintiff it was ten years since his injury in the operation.

The plaintiff asked if it was possible to go to court to sue. He was advised by

Simon Parsons that it would try.86 The plaintiff did not know he needed

permission. He could not remember if he was asked questions about why he

had taken so long to bring his court case. He could not remember having to

explain the ten years.87

156 The medical negligence case, it “went bang, finished.” The plaintiff really had

no idea about the case. It was possible his lawyers had said “You’re late so

we need an extension of time, but we will try.”88 He could remember them

talking to him about the six years. He agreed he knew the rule was you had

six years to bring a case. No one explained to him why he lost the claim

against the doctor. He really did not know himself.89

157 When taken to his affidavits, the plaintiff confirmed he knew of the six years.

What he was saying in court was the truth.90

158 People were talking about six years when the plaintiff had his work injury.91

From that, he sort of had an idea he had six years from then to bring his

case.92

159 The plaintiff confirmed when he had deposed that he did not know about the

six years, that was wrong.93

86 T23 87 T24 88 T26 89 T28 90 T27 91 T28 92 T29



160 In re-examination, the plaintiff explained he thought the six year rule was that

you could do the case in six years or after that it was too late. He did not know

what had to be done in those six years. He was waiting for his solicitor to fix it

all up.94

Lay evidence

161 The plaintiff’s daughter-in-law, Amira Daic, swore an affidavit on

25 September 2015.

162 Amira confirmed there had been drastic changes in the plaintiff’s condition

resulting from the accident, describing his problems with gardening, his

inability to do carpentry work for which he was previously skilled, and

problems with domestic duties.

163 Before the accident, it appeared the plaintiff’s back was sometimes painful,

and he would groan when picking things up. However, many days he seemed

to do well, and engage in activities with no sign of disability. That situation

had changed since the accident. The plaintiff now looks like a much older man

and a grossly disabled one.

164 Pre-accident, the plaintiff enjoyed going to the TAB with his mates and them

visiting him at home. The plaintiff is now very anxious as a driver or a

passenger and is very reluctant to go in the car. His social life is reduced to

almost zero.

165 In about mid to late 2011, the plaintiff asked her to help him progress his

claim. He told her that Mr Bektas had not communicated with him for some

years. She tried to ring the office a number of times, and each time was told

that Mr Bektas would ring back, but that had not happened.

166 Both late in 2011 and early 2012, when Ms Daic rang to speak to Mr Bektas,

she was told he was too busy but that he would ring back, but he failed to do

93 T52 94 T128



so. She was never told by anyone from VCL that it had declined to act for the

plaintiff.

167 Ultimately, in about June 2012, the plaintiff showed her a letter, which he

asked her to explain, to which the plaintiff responded, “He said there was a

case. How is that possible?”

168 Amira rang VCL and again tried to speak to Mr Bektas but he failed to return

her call. Amira then spoke to another solicitor, Mr di Donato, who agreed to

take on the plaintiff’s case. He explained to her and to the plaintiff that cases

had to be commenced within a certain time, and the plaintiff had exceeded

that time limit. He therefore needed to apply for an extension of time. Neither

she nor the plaintiff had previously been aware of that information.

169 The plaintiff regarded himself as tied to Mr Bektas for so long as he believed

he was handling his case. It was only after the June 2012 letter that she or

the plaintiff thought he should seek a second opinion, which they did as

promptly as they could.

The Plaintiff’s medical evidence

Treaters

170 Dr Voon from the Medical Centre provided two detailed reports and was also

required for cross-examination.

171 Dr Voon first saw the plaintiff on 3 February 2006 in relation to his accident

injuries. The plaintiff was earlier seen at the Medical Centre by Dr Ng on 3

January 2006. It was then noted there was some tenderness of the right

lateral aspect of the chest wall. The plaintiff was placed on Panadol, Tramal

and Diclofenac.

172 On subsequent reviews on 5, 9 and 17 January 2006, there was no mention

of left shoulder pain in Dr Voon’s report. TAC Medical Certificates were

completed on 9 and 17 January 2005 and did not refer to left shoulder pain.



173 In his reports, Dr Voon summarised the results of investigations and referrals

to a number of specialists, including Dr Thomas, Mr Khan and the VRC.

174 Dr Voon noted in 2009 the plaintiff was still complaining of left shoulder pain.

An ultrasound showed a tear which likely occurred as a result of the steering

wheel spinning in the plaintiff’s hands when he was hit by the other car.

175 Dr Voon noted the plaintiff could not afford a private specialist and was

referred to Monash Medical outpatients and was treated conservatively.

Repeat x-rays and ultrasounds of both shoulders had been ordered.

176 Dr Voon noted, in his September 2013 report, the plaintiff was still

complaining of chronic neck and bilateral shoulder pain since the accident and

was still having stiffness and soreness of both shoulders at the end ranges of

flexion, abduction and also external rotation. He had chronic neck pain and

some residual anxiety with travelling.

177 After the September 2013 x-rays and ultrasound of both shoulders, the

plaintiff was referred for a review by Dr Thomas and Mr Tran, orthopaedic

surgeon. Mr Tran reviewed the plaintiff in March 2015. He did not feel any

surgery was required for either of the plaintiff’s shoulders but suggested he be

managed by the chronic pain team headed by Dr Thomas.

178 Dr Voon noted Dr Thomas reviewed the plaintiff in May 2015 and started him

on Lyrica.

179 Dr Voon concluded the diagnosis of the plaintiff’s left shoulder injury was a

supraspinatus calcific tendinosis tendinopathy 10 x 10-millimetre anterior full

thickness tear of the left supraspinatus tendon with chronic regional pain.

180 Dr Voon believed the plaintiff’s accident was a significant contributing factor to

his left shoulder injury. He believed the plaintiff required ongoing treatment for

his shoulder in terms of analgesia and he may need ongoing reviews with

orthopaedic surgeon, Mr Tran, his pain specialist, Dr Thomas, and physical



therapies if his shoulder pain and function worsen in the future.

181 Dr Voon has seen the plaintiff since about 2002.95

182 In examination-in-chief, Dr Voon confirmed his view that the left shoulder

injury was accident related as the plaintiff had had any problems with his

shoulder before the accident.96

183 Dr Voon had no idea about the circumstances of the completion of the TAC

claim form having first seen the plaintiff in relation to his accident injuries on 3

February 2006.97

184 At an attendance on 4 October 2006, pain in both shoulders was noted. On 6

November, both shoulders were x rayed.98

185 Dr Voon thought the plaintiff’s left shoulder injury had affected his co

morbidities. The chronic pain from the his shoulders, neck and chest wall had

affected his ability to function in terms of activities of daily living and looking

after himself. He could not garden or do any housework.

186 Dr Voon thought chronic pain is a significant issue. Without the chronic pain

from his injury, the plaintiff would be able to cope with other illnesses much

better than if he had not had the accident which made things a lot worse.99

187 In cross-examination, Dr Voon explained he would try to note down the most

pressing issues on examination.100

188 The absence of references to the left shoulder was because the plaintiff had

had bilateral shoulder pain. Early on, the right was sorer, so that was mostly

focussed on. That did not exclude the fact that the plaintiff did have left

95 T136 96 T137 97 T138 98 T139 99 T141 100 T141



shoulder pain at an early time.101 This was confirmed by the referral to Mr

Khan and the November 2006 x-rays, although he conceded there was no

mention of the left shoulder in Dr Voon’s notes before October 2006.102

189 Dr Voon knew the plaintiff had bilateral shoulder pain and it had only started

after the accident. Even if it was not noted, left shoulder pain was present

with the first visits.103

190 Dr Voon agreed he would have arranged investigations of the plaintiff’s left

shoulder problems if they were severe. On the attendance before the

ultrasound, there was a note of discomfort and restriction of movement.104

191 Whilst Dr Voon did not organise an ultrasound until June 2009, the plaintiff

was having bilateral shoulder pain, worse in the right, before the ultrasound.

192 The ultrasound was organised in 2009 because that was when the plaintiff

said his shoulder was most sore.105 Dr Voon agreed in 2009 that funding for

further treatment of the left shoulder was then not sought from the defendant.

193 Dr Voon remembered the plaintiff mentioning bilateral shoulder pain.106 He

then said he had no memory of the plaintiff complaining of left shoulder

problems except for the referral to Mr Khan. Dr Voon stressed that he is

impartial and was trying to be as honest as he could in giving his evidence.107

194 Dr Voon agreed degeneration can be symptomatic but also asymptomatic. It

could be exacerbated by trauma.108 He agreed trauma was not required for a

degenerative shoulder to progress into a painful condition. However, Dr Voon

then mentioned the steering wheel spinning quite dramatically in the accident

and that is what the plaintiff described when they were looking at his left

101 T142 102 T149 103 T143 104 T161 105 T160 106 T150 107 T152 108 T153



shoulder in 2009.109

195 Dr Voon explained a jerking action can be a reason why the shoulder would

become symptomatic and progress after trauma. The onset of symptoms

would not necessarily be expected within months but probably that would be

the case. Then he went on to say, degeneration is not a cause of a tendon

tear. He denied that elderly people could have that finding in the absence of

trauma.110 Dr Voon explained that it is not the tear that is causing the

functional problem, it is the inflammation that is causing pain.111

196 Dr Voon agreed the plaintiff was not complaining of functional issues with his

left shoulder between 2006 and 2009.112 He thought it is a possibility

someone might not be able to lift their arm above 90 degrees if they had a

tear. There is a possibility you can have a tear without even knowing it.

197 Whilst there has been no other cause for the tear outside the accident, Dr

Voon agreed it was possible to have a tear without trauma.113 If there was a

tear, you would not necessarily expect immediate pain; it is definitely a

possibility.114

198 Dr Voon agreed the plaintiff was the best judge of what restrictions he has

during the day by virtue of his shoulder, neck, legs, heart, diabetes and

chest.115

199 In re-examination, Dr Voon explained for a rib fracture, significant force would

be required.116

200 Dr Voon confirmed he referred the plaintiff to Mr Khan because of bilateral

shoulder complaints. Various doctor have mentioned the plaintiff’s left

109 T154 110 T155 111 T156 112 T157 113 T158 114 T159 115 T163 116 T163



shoulder.117

201 Dr Voon believed the most likely cause of the tear was the steering wheel

spinning. Further, at a later time, the plaintiff complained of worse problem

with his left shoulder than his right because he had been overusing his left

arm because of his right shoulder pain.118

202 In a VRC orthopaedic initial assessment report of August 2006, it was noted

the plaintiff’s injuries and other diagnoses were neck and bilateral shoulder

pain, right greater than left, and right sided low back buttock pain. The

summary of problems included neck and shoulder pain and right sided low

back and buttock pain.

Medico-legal examiners

203 The plaintiff was examined by orthopaedic surgeon, Mr Peter Kudelka, in

September 2013.

204 The plaintiff told Mr Kudelka of the accident and a diagnosis at Frankston

Hospital of bruised neck, back, shoulders and chest.

205 The plaintiff described present symptoms as pain and stiffness in the neck,

pain and weakness of both shoulders, particularly the left, which the plaintiff

said was significantly affected by the accident as he twisted while wearing his

seat belt across his shoulders.

206 Mr Kudelka noted the plaintiff’s general health was fairly good but he had had

half his kidney removed for cancer in 2009 and had a full cardiac bypass. He

had also had hernia surgery. He was a diabetic on tablets and insulin. He

took blood pressure and cholesterol tablets and noted deterioration of his

vision over the years.

207 Mr Kudelka thought that in the accident the plaintiff aggravated age related

117 T164 118 T165



degenerative changes in the lumbar and cervical spine. He suffered a

supraspinatus tear of the left shoulder, aggravation of bilateral degenerative

osteophytic changes of the AC joint and aggravation of pre-existing age

related degenerative changes in the lumbar spine.

208 Mr Kudelka thought the injuries had stabilised and self-managed exercise

program and medication was appropriate in the future. He assessed the

plaintiff’s whole person impairment at 28%.

209 In a supplementary report, Mr Kudelka attributed 50 per cent of the neck, back

and shoulders impairment to the accident and the remainder to the plaintiff’s

age.

210 Dr David Elder, consultant in the specialty of occupational and environmental

medicine, examined the plaintiff on the defendant’s behalf in July 2014.

211 The plaintiff then confirmed he had had ongoing neck pain giving rise to

headaches and left shoulder pain arising out of the accident.

212 On examination, there was no wasting around the left shoulder and no

crepitus. The range of motion was diminished to below shoulder height and

other movements were also restricted. Rotator cuff functioning was collapsing

and giving way.

213 Dr Elder accepted the plaintiff suffered mechanical neck pain with no clinical

evidence of a radiculopathy and independent left shoulder dysfunction arising

out of the accident.

214 Dr Elder did not comment on any investigations of the left shoulder in his

report.

215 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in March

2015.

216 On examination of the left shoulder, there was no muscle wasting. Movements



were restricted.

217 The history was, following the accident, the plaintiff had continued to suffer

from neck, shoulder and back pain which resulted in immobility. The plaintiff

complained of ongoing left shoulder pain with reduced mobility. His back pain

limited his ability to bend.

218 The plaintiff told Mr Kossmann that had no musculoskeletal symptoms of any

note prior to the accident.

219 Mr Kossmann noted the plaintiff used to enjoy gardening and fishing and was

no longer able to do so. He had difficulty with the housework. He was

previously a carpenter and now struggled with this activity.

220 Having been provided with all investigations to date, Mr Kossmann diagnosed

pain and movement restrictions of the left shoulder on the basis of tendinosis/

tendinopathy of the supraspinatus tendon and rotator cuff tear and an

exacerbation of degenerative changes in the neck and back.

221 Mr Kossmann found a temporal relationship to the onset of shoulder

symptoms with the accident. He thought conservative care was appropriate

and that the plaintiff’s condition had stabilised. He considered the plaintiff’s

condition would gradually deteriorate.

Investigations

222 On 6 November 2006, Mr Khan organised x-rays of both shoulders. There

was no evidence of significant osteoarthritic change in either glenohumeral

joint. Degenerative changes were present in both AC joints with some material

of calcific density noted to overlay the superior margin of each AC joint.

223 On nuclear bone scan, there was a mild moderate increase in activity present

at the region of both AC joints consistent with the degenerative changes seen

on x rays. There was a slight increase in activity present in the anterolateral

aspect on the right fifth and sixth ribs, most likely due to the previous rib



trauma.

224 There was an MRI scan of the cervical spine in December 2006. There was

no spinal canal or neural exit foraminal stenosis seen.

225 On 4 June 2009, there was an ultrasound of the left shoulder which showed a

full thickness tear of the mid and anterior insertion of the supraspinatus

measuring 9 x 11 millimetres.

226 There was an x ray and ultrasound of both shoulders in September 2013. It

was reported there was bilateral supraspinatus calcific

tendinosis/tendinopathy. There was 10 x 10-millimetre anterior full thickness

tear of the left supraspinatus tendon and no tear on the right.

The Defendant’s lay evidence

227 Simone Leith, the defendant’s solicitor, swore an affidavit on 6 August 2015 in

relation to the Section 23A application. Ms Leith set out the following

chronology of relevant events.

228 A claim for compensation was submitted on 23 January 2006.

229 In August of that year, the defendant was notified by Nowickis they were

acting on the plaintiff’s behalf.

230 Funding for physiotherapy ceased from 25 August 2006 and from 1 May 2007,

general practitioner visits were no longer funded.

231 The defendant received letters from VCL dated 7 December 2007 and

6 March 2008 requesting further documentation. No further communication

was received from the plaintiff until a letter dated 6 March 2013 from Hymans

Lawyers advising they were acting on the plaintiff’s behalf.

232 The next correspondence was 17 September 2013 when Hymans requested

an impairment assessment. A serious injury certificate was requested by letter

of 2 June 2014. There was a denial by letter dated 5 August 2014.



233 An Originating Motion was issued on 2 September 2014 and amended on

5 May 2015 to include a 23A claim.

234 The claim is now barred pursuant to s5(1) of the Limitation of Actions Act

1958.

235 The plaintiff was represented by two law firms from 2006 to 2008 and neither

requested a serious injury certificate.

236 The plaintiff was aware of the six years, having instructed solicitors in relation

to a claim in the matter of Daic v Cousens & Anor, where leave was granted to

make an application pursuant to s23A by order of 24 September 2009.

237 The Court Connect printout had been obtained although attempts to locate the

file had been unsuccessful.119

238 Michelle Castle is a lump-sum coordinator employed by the defendant.

239 In her affidavit sworn 20 October 2015, Ms Castle set out that on 8 November

2013, she received a letter from the plaintiff’s solicitors with a report from

Mr Peter Kudelka of 17 September 2013 allocating an impairment rating for

the plaintiff’s left shoulder.

240 Despite Ms Castle’s concerns regarding causation, to expedite the plaintiff’s

impairment claim, she accepted Mr Kudelka’s left shoulder rating, detailing

such acceptance in a letter of 30 April 2014 referring to a whole person

impairment determination of 21 per cent.

241 In her coordinator’s comments, Ms Castle set out as follows:

“I am prepared to accept the assessments, however note that the client made little complaint regarding the left shoulder until 2009 so there may be a possible causation issue.”

242 In her letter of 30 April 2014, Ms Castle advised as follows:

“Our preference is that we are able to reach agreement about your

119 Records indicate Judge Duckett dismissed the Section 23 A application on 14 February 2000



client’s level of impairment and that is provided for in the protocols of release as signed by your client. If your client does not sign the enclosed release the TAC may elect to arrange their own assessments.”

243 Ms Castle also noted:

“Although we have not yet completed determination we propose to finalise your client’s level of impairment based on the reports listed at 21 per cent as detailed on the enclosed assessment and calculation sheet.”

The Defendant’s medical evidence

244 In a TAC medical certificate of 9 January 2006, completed by Dr Ng, the

plaintiff’s injuries and conditions noted were: “right lateral chest wall pain,

subsequently confirmed on investigations.

245 In a TAC certificate of 17 January 2006, Dr Ng’s current clinical diagnosis was

“5th right rib fracture.”

246 In November 2006, Mr Khan thanked Dr Voon for the referring the plaintiff

whom he noted suffered from diabetes mellitus, hypertension and

hyperthyroidism and had polyps in his colon.

247 Mr Khan noted the accident and that the plaintiff had headaches, pain the

back of his neck, the top of his right shoulder blade, with some pain in the

right side of his chest wall below the axilla. Movements of the cervical spine

were reasonably good and the plaintiff did not have any sign of acromion

impingement in his shoulders and he could move his shoulders satisfactorily.

248 In the VRC Allied Health discharge report dated 3 October 2006, it was noted

the plaintiff had a car accident, developed neck, right shoulder, rib and back

pain. The plaintiff attended three sessions of occupational therapy. He

reported to be independent in personal care and managed the domestic tasks

including gardening and driving. In sessions he indicated most of his concerns

were psychological and intimacy based. It was noted the plaintiff was retired,

managed home duties and was a carer for his wife.

249 Mr Khan wrote to Dr Thomas in February 2007, noting the plaintiff’s injury to



the right side of chest with fractured right rib.

250 Mr Khan advised the plaintiff complained of neck and right shoulder pain with

some limitation in the shoulder, mainly on internal rotation. He had an ache in

the front of the sternum and had pain in his right thigh.

251 Mr Khan could not detect any neurological symptoms in the upper or lower

limbs. He noted the bone scan revealed increased activity in the

acromioclavicular joint confirming degenerative changes shown on plain x-ray.

He sought Dr Thomas’s opinion and assessment with reference to any future

rehabilitation.

252 Dr Thomas wrote to Mr Khan in March 2007, stating the plaintiff’s primary

problem had been right sided upper limb pain and neck pain.

253 On examination, the plaintiff’s shoulder movements were identical on both

sides but the right was more painful to move but did not appear to be a

scapular type problem.

254 Dr Thomas advised that the right upper limb was more likely to be myofascial

than representing some form of discogenic aetiology. He would encourage the

plaintiff to continue with exercises and did not think long term use of anti

inflammatories would be in the plaintiff’s best interest.

255 Dr Voon wrote to Monash Medical Neurosurgical Outpatients in June 2007

thanking them for seeing the plaintiff who had lower back pain and got both

right and left right sided sciatica. It was noted in the history of medical

conditions that the plaintiff had a car accident with neck, right shoulder and

back sprain.

256 Counsel for the defendant provided a folder of “sample documents from the

GPs clinical file.” Given its size, I do no propose to summarise the contents of

the folder and will refer only to the notes raised during the hearing.



257 That folder contained numerous clinical notes dating from 21 February 2005

to 23 March 2015 relating to the plaintiff’s attendances with a number of

medical practitioners for a wide range of medical conditions, unrelated to his

left shoulder. The plaintiff was cross examined in relation to a number of these

entries.

258 The folder also included details of the plaintiff’s recent treatment from Dr

Thomas and Dr Tran in 2014. No medical reports from these practitioners

were relied upon by the plaintiff.

259 In his letter to Dr Voon dated 25 March 2014, Mr Tran thanked him for the

referral noting the plaintiff presented with right shoulder and neck pain. He did

not examine the plaintiff’s left shoulder. Mr Tran advised he did not think the

plaintiff needed any surgical treatment to his shoulders and thought the

plaintiff had other issues that needed to be addressed by pain management

with Dr Thomas.

260 When Dr Thomas last saw the plaintiff in July 2014, he reported to Mr Tran

that Lyrica was beneficial for the plaintiff. He still had a lot of depressive

symptoms and Dr Thomas commenced him on Pristiq.

261 Dr Thomas noted that form the pain point of view the plaintiff seems to be

coping and at that stage, he had not scheduled a review.

Medico-legal

262 The plaintiff was examined by Dr Boys, consultant orthopaedic surgeon, in

June 2015.

263 The plaintiff told him of a seat belt injury to the chest and bilateral shoulder

pain at the time of the accident, perhaps more so on the right. He related over

time, increasing difficulties with left shoulder pain.

264 The plaintiff described chronic central low back pain initiating a disability

support pension in 1987.



265 Subsequent to the accident, the plaintiff had treated hypertension,

hypothyroidism, insulin dependent diabetes, with cataracts colonic polyps and

osteoarthrosis of the knee. He had undergone a cholecystectomy and also

coronary artery bypass grafting in 2013. His general practitioner had also

assessed probable bilateral carpal tunnel syndrome.

266 In addition to central basicervical neck pain, the plaintiff complained of anterior

left shoulder pain with painful movement.

267 On examination, there was limitation of left shoulder movement and no

localised muscle wasting. Provocative tests for impingement induced

discomfort on the left.

268 Dr Boys noted the plaintiff had a history which suggested musculoligamentous

strain of the cervical spine and right shoulder and scapular region occurring as

a consequence of the accident.

269 The plaintiff had subsequently described bilateral shoulder symptoms with

radiological evidence of calcific tendinopathy of both shoulders. Most

recently, there had been deterioration of function in the left shoulder with

radiological evidence of an associated tear of the rotator cuff.

270 Dr Boys thought musculoligamentous injury to the cervical spine and right

scapulothoracic musculature would be consistent with the accident. He

considered the plaintiff currently experiences disability referable to the left

shoulder reflecting the effects of degenerative tendinopathy of the left rotator

cuff. He suffered a chronic calcific tendinosis at that articulation and had of

recent years suffered a degenerate tear of the left supraspinatus tendon.

271 There was left rotator cuff disease shown by the limited movement.

272 Dr Boys noted the plaintiff relayed limitations of left shoulder use at home and

his general activity was low commensurate with age and associated co

morbidity.



273 In a supplementary report, Dr Boys advised the accident was non contributory

to the plaintiff’s left rotator cuff tear noted in 2013. He could see no current

indication for total shoulder replacement as possibly foreshadowed by

Mr Kossmann.

274 Dr Boys concluded, given the plaintiff’s age, hypertension, diabetes, cataracts,

osteoarthritis of the knees and coronary bypass surgery, it is reasonable to

consider that co morbidities affect his capacity to perform recreational

activities such as fishing and would limit his physical capacity for heavy

gardening activities.

275 Having been shown Mr Kossmann’s report, the most recent report of Dr Voon

and Mr Kudelka’s reports, Dr Boys did not change his view.

Court documents – Case No. CI-99-01619

276 The plaintiff’s application pursuant to s23A in relation to his medical

negligence application against Dr Cousens and Anor was dismissed by Judge

Duckett on 14 February 2000.

Overview

277 The first issue for determination in this application is causation - Did the

plaintiff suffer a left shoulder injury in the accident?

278 Counsel for the defendant submitted that the plaintiff had not suffered a left

shoulder injury in the accident. It was disputed that there was an onset of left

shoulder pain following the accident120 and that most early documents do not

refer to a discrete left shoulder injury.121

279 The defendant relied on the following documents where no mention was made

of a left shoulder injury-

(a) the TAC certificates signed by Dr Ng dated 3 and 17 January 2006;

120 T13 121 T184



(b) the ambulance report122;

(c) the Rosebud Hospital notes;

(d) the VRC discharge summary dated 4 December 2006 (neck, right

shoulder, rib and back pain).

280 It was submitted that there was no evidence about the circumstances of the

completion of the claim form signed on 23 January 2006 which did include

reference to the left shoulder.

281 Further, there was no mention of a left shoulder injury in Dr Voon’s notes

under 4 October 2006. It was submitted in these circumstances, Dr Voon’s

evidence linking a left shoulder injury with the accident was a

reconstruction.123

282 Whilst an impairment benefit was paid to the plaintiff for injury to both

shoulders and spine, the payment was made notwithstanding the defendant’s

concerns as to the causation of the left shoulder injury set out in the

“Impairment Assessment Comments Sheet” completed by Ms Castle on 30

April 2014.

283 The plaintiff maintains however that he has suffered left shoulder pain since

the accident, his right shoulder being his main complaint in the early days

thereafter.

284 Consistent with this evidence is the VRC Initial Assessment report dated 7

August 2006 which includes in the plaintiff’s injuries “bilateral shoulder pain,

right greater than left.”

285 Whilst the circumstances of the completion of the claim form are unclear, the

form includes a separate, specific reference to a left shoulder injury and was

122 The plaintiff having deposed that report did contain such a reference, it was conceded by his counsel

that this was not in fact the case T 126 123 T185



signed by the plaintiff within a month of the accident. Liability was accepted

for the claim and payments were made for physiotherapy until August 2006

and for general practitioner visits until May 2007.

286 Dr Voon’s note of the attendance on 4 October 2006 set out that the plaintiff

would like to get an opinion about his neck and shoulders from Mr Khan. That

referral was made and Mr Khan organised x rays of both shoulders in

November 2006. These investigations showed degenerative changes in both

shoulders.

287 Although all medico legals accept the plaintiff’s left shoulder injury is accident

related,124 they did so on a history from the plaintiff of ongoing significant

complaint of left shoulder pain post accident.

288 On balance, whilst I accept the plaintiff did injure his left shoulder in the

accident, given the lack of significant early left shoulder complaints, I am not

satisfied the tear shown on ultrasound in 2009 is accident related.

289 Dr Boys was of this view given the relatively late onset of left shoulder

complaint. Whilst Dr Voon endeavoured to assist the plaintiff when giving his

evidence, he conceded that whilst the onset of symptoms from a tear would

not necessarily be expected within months of trauma, probably that would be

the case.125

Credit

290 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:126

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

291 Counsel for the plaintiff conceded the plaintiff was not a reliable witness but

within his limits, he was truthful. There were various inconsistencies and he

124 T204 125 T155 126 (2010) 31 VR 1 at paragraph [12]



was not able to give satisfactory histories as to a number of matters. However,

it was not disputed that the accident happened and he was injured.

292 In my view however, the plaintiff was not a truthful witness.

293 On a number of occasions, the plaintiff deposed to having no knowledge of

the six year limitation period yet in cross examination conceded he was aware

of it and had been since the work injury in the 1980s.

294 There was no explanation whatsoever of these inconsistencies in relation to

such an important issue.

295 Similarly, the plaintiff gave vastly different versions of what had been

discussed with Mr Bektas on the first attendance in September 2006.

296 In my view, the plaintiff repeatedly attempted to down play, both in his

affidavits and viva voce evidence, significant ongoing problems he has had

with his back since the work injury which forced him to leave the workforce

and apply successfully for a disability pensions, attempting to attribute

ongoing problems predominantly to his left shoulder.

297 Further, when seen by Mr Kossmann earlier this year, the plaintiff denied any

history of musculokeletal disorder.

298 It also became apparent during extensive cross examination that since the

accident, the plaintiff has suffered from a wide range of serious medical

conditions. Save for a brief reference to heart surgery in 2013, the plaintiff’s

affidavits were silent as to these other medical conditions and their

consequences. The plaintiff simply focussed on his left shoulder injury as the

source of his complaints.

Pain

299 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:127

127 (2010) 31 VR 1 at paragraph [11]



“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);

… .”

300 The plaintiff claims since the accident, on an increasing basis, he has

experienced left shoulder pain, even at rest. He also describes pins and

needles in his left arm and a restriction of left shoulder movement.

301 The plaintiff has described his condition to medico legal examiners in these

terms.

302 Whilst I accept that the plaintiff may suffer some left shoulder pain and

discomfort and associated restriction of movement, given my views as to the

unreliability of his evidence, I do not consider that any problems he may have

are at the level he describes.

303 It is also relevant when considering any claimed left sided restrictions, that the

plaintiff is right hand dominant.

Treatment

304 Whether the accident-related injury be soft tissue or a tear following the

accident, the plaintiff has not required any significant treatment in relation

thereto.

305 Dr Voon did not think it was necessary, post the November 2006 x-rays

ordered by Mr Khan, to arrange further investigations of the plaintiff’s left

shoulder until the June 2009 ultrasound. During that time, Dr Voon agreed

the plaintiff was not complaining of functional issues with his left shoulder.128

306 When he examined the plaintiff’s shoulders in November 2006, Mr Khan did

not find any evidence of subacromial impingement and the plaintiff could

move his shoulders satisfactorily.129 In his February 2007 referral letter to Dr 128 T125 129 T186



Thomas, Mr Khan mentioned the plaintiff had complained of pain in the neck

and right shoulder area only.

307 Dr Thomas, when responding to Mr Khan by letter of 21 March 2007, having

recently seen the plaintiff, noted his primary problem had been right-sided

upper limb and neck pain. Shoulder movements were identical on both sides

but the right was more painful to move.

308 In his referral to Monash Neurologoical Outpatients dated 6 June 2007, Dr

Voon noted the presenting problem at that time was essentially spinal pain.130

Under “Medical Conditions,” he noted “MVA Dec 2005 Neck right shoulder

and back sprain”.

309 There is then no mention of any left shoulder complaint until the plaintiff

attended Dr Voon in June 2009. Dr Voon then noted there was left shoulder

discomfort and restriction of movement. He ordered the ultrasound

undertaken on 4 June 2009, which was reported to show a full thickness tear

of the mid and anterior insertion of the supraspinatus measuring 9 x 11

millimetres.

310 The plaintiff himself did not know how long after the accident the ultrasound

took place, stating it could have been a couple of months or a couple of

years.131

311 Following the ultrasound, the plaintiff was referred to the Orthopaedic

Outpatients at Monash for management of the tear, as he was unable to

afford a private specialist. There was no reference in that referral letter to the

accident. Dr Voon noted that the plaintiff’s left shoulder was then causing him

much pain and decreased function.

312 Whilst Dr Voon noted the plaintiff’s left shoulder condition on many occasions

thereafter in his clinical notes, most references were to the investigations

130 T187 131 T75



carried out in 2009 and 2013. Before the September 2013 ultrasound, which

confirmed the tear shown in 2009, Dr Voon noted that investigation was to be

undertaken as the plaintiff was suffering from chronic bilateral shoulder pain.

313 Since 2013, Dr Voon has noted chronic left shoulder neck pain in

correspondence to practitioners treating the plaintiff for non-accident related

conditions.

314 Treatment after 2009 has been physiotherapy (noted in Dr Voon’s report but

there is no report from that treater).

315 Following the 2013 investigations, Dr Voon noted the plaintiff was referred to

Mr Tran and Dr Thomas. The plaintiff did not rely on reports from either

practitioner.

316 Correspondence from those practitioners tendered by the defendant and

referred to previously in this judgment, confirmed Mr Tran concentrated mainly

on the plaintiff’s right shoulder when he last examined him in March 2014. He

then advised that the plaintiff did not require surgery for either shoulder and

that pain management was appropriate with Dr Thomas.

317 The plaintiff was discharged from Dr Thomas’ care in mid 2014. At that time,

Dr Thomas thought the plaintiff seemed to be coping with his pain.

318 There is no evidence of any further treatment since that time save for Dr

Voon’s care.

Medication

319 I am not satisfied the plaintiff takes any significant medication for his left

shoulder condition alone.

320 Pre accident, the plaintiff was taking Panadol and occasionally Panadeine

Forte if his back became particularly sore. Since the accident, he has had to



take Panadol Osteo every day, two in the morning and one at night, and he

also takes Panadeine Forte more frequently.

321 I do not accept the plaintiff mainly needs this medication for his left shoulder,

which he claims is now his worst injury, followed by his lower back.

322 It is apparent from Dr Thomas’ notes that the plaintiff has been prescribed

other medications such as Pristiq and Lyrica which the plaintiff has not

mentioned directly. Further, the plaintiff also takes medication for his

dizziness, diabetes, hypertension and hypercholesterolaemia.

Other consequences

323 In his final affidavit, the plaintiff deposed to having suffered a serious injury to

his left shoulder, right shoulder and spine, yet the application relates to his left

shoulder alone.

324 The plaintiff continues to suffer from a number of other significant medical

conditions unrelated to the accident.

325 In summary, his main problems are back pain since the work injury, dizziness,

breathlessness, tinnitus, diabetes and related foot pain, sleep disorder and

problems with vision. He also has pain in his elbows and hips. Further, at

times, he has suffered from depression related to other health issues such as

cancer and kidney disease.

326 Whilst the plaintiff claims his left shoulder pain affects his ability to undertake

a range of activities and enjoy his daily life, these unrelated conditions, on his

own admission in cross-examination, interfere with his ability to undertake

daily activities.

327 In Peak Engineering & Anor v McKenzie,132 Maxwell P described the difficulty

faced when a separate injury is also producing pain and suffering

consequences for the claimant, as well as the relevant injury.

132 [2014] VSCA 67



328 In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”133

329 I am therefore bound to identify, and exclude, the continuing consequences

for the plaintiff of the various unrelated conditions and consider whether the

consequences referable to the left shoulder injury are “serious”.134

330 The plaintiff’s back pain has been significant since the work injury, forcing him

to cease work in 1987, aged forty-six. He has been unable to undertake any

physical work thereafter.

331 The plaintiff’s dizziness is sufficient is sufficient to stop his activities.135

Breathing had also caused problems with other activities,136 and tinnitus

making socialising difficult.

332 Whilst at times he maintained he could not drive because of left shoulder pain,

the plaintiff conceded he was unable to drive because of vision problems.

From the plaintiff’s own description, his vision problems are significant on a

daily basis.

333 In my view, any problems sleeping due to left shoulder pain are far

outweighed by the plaintiff’s sleep apnoea and his considerable foot pain

during the night.

334 The plaintiff’s problems with his feet are significant and require medication.

As a result, he has difficulty standing for prolonged periods.137 There are also

very significant leg pains.138

133 At 1 134 At 2 135 T171 136 T172 137 T173 138 T176



335 Heart and kidney problems have caused the plaintiff concern. He confirmed,

as Dr Thomas noted, he was lethargic following heart surgery and had lost

motivation.

336 The plaintiff claims he is unable to go fishing, do the garden, and undertake

furniture repairs and woodwork and do heavier housework because of his left

shoulder pain.

337 However, the plaintiff’s ability to undertake these activities is significantly

affected by his chronic back pain, feet problems, breathlessness, lack of

vision and leg pain.139

338 As the plaintiff conceded, with his heart, breathing, foot pain and vision

problems, he could not go fishing, make furniture, chop wood, dig holes in the

garden, vacuum or clean.140

339 I do not accept the submission that the plaintiff would be able to engage in

these activities if not for pain in his left shoulder - his non dominant arm.141

340 The plaintiff does not say he cannot cope with these co morbidities because of

his shoulder pain, as Dr Voon tried to suggest.142

341 The plaintiff’s daughter’s evidence corroborating his evidence as to the

consequences of his left shoulder injury, whilst unchallenged, makes no

reference to any of the other significant health problems from which the

plaintiff has suffered since the accident.143

342 Taking into account all the evidence, I do not accept that there are separate

issues in terms of the pain and disability for the left shoulder that meet the

Peak test.144

139 T179 140 T128 141 T208 142 T179 143 T180 144 T212



343 Taking into account all the evidence, excluding the consequences of non

related health conditions, I am not satisfied that any consequences referable

the left shoulder are “serious”.

344 Accordingly, the application is dismissed.

Section 23A application

345 I also propose to consider the application pursuant to s23A to extend the

period of time in which to bring proceedings related to the accident.

346 The limitation period expired on 31 December 2011.

Legal principles

347 The relevant legal principles relating to an application for an extension of time

were set out by the High Court in Brisbane South Regional Health Authority v

Taylor.145

348 When considering an application of this nature, the Court should properly start

with the proposition the public interest is served by proceedings being

commenced within the period provided for by the legislature, and the

proceedings brought outside that time limit are contrary to public interest.146

349 An exercise of the Court’s discretion involves the factors set out in s23A:

(a) the length of and reasons for 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

145 [1996] 186 CLR 541 146 (Supra) per McHugh J at 551-555



the accrual of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he

knew that the act or omission of the defendant;

(f) the steps, if any, taken to obtain medical or legal advice and the nature

of any such advice received.

What is the Plaintiff’s explanation for the delay?

350 In his four affidavits, the plaintiff blamed the delay on the inactivity of his

solicitor, Mr Bektas, upon whom he relied upon to look after his legal

entitlements in relation to the accident.

351 The plaintiff claimed Mr Bektas did little in relation to the claim, between first

taking instructions in September 2006 and advising the plaintiff he was

ceasing to act by letter of June 2012. During that time, he did not advise the

plaintiff of a six-year limitation period.

352 The plaintiff deposed that until he engaged his present solicitors, he was not

aware of the limitation period relating to his accident claim.

353 However, the plaintiff conceded in cross-examination he in fact knew of the six

year limitation period, having become aware of it at the time of his work injury.

354 This concession was not surprising given the plaintiff brought an unsuccessful

s23A application in relation to a medical negligence action relating to hernia

surgery in the 1990s.

355 I accept the submission the plaintiff’s evidence cannot be accepted as to his

explanation for the delay. There are inconsistencies in each of the affidavits

and, then again, with his viva voce evidence.

356 Having consistently denied being aware of the six-year period when referring

to that issue in the four affidavits, the plaintiff, in the witness box, conceded he

has known of the six years since as early as the time he had a back injury.



357 There are also inconsistencies in the plaintiff’s evidence as to what letters he

received and what, if anything, he did in response.

358 The plaintiff attended Nowickis, once, maybe twice, in September 2006.

359 What happened at the first attendance is unclear. The plaintiff initially deposed

Mr Bektas gave him no advice as to his common law rights and did not

discuss whether he was going to take on his case.

360 In his second affidavit, the plaintiff deposed Mr Bektas proceeded to take

instructions from him. The plaintiff confirmed in his viva voce evidence that Mr

Bektas had advised him he was going ahead with his claim.

361 The plaintiff has never provided Mr Bektas with any documentation or material

despite a request by Nowickis by letter dated 29 September 2006, enclosing

clinical notes and highlighting the plaintiff’s instructions were essential for the

proper preparation of his matter for trial. In that letter, the plaintiff was asked

to make written comments on the document and contact Mr Bektas upon

receipt.

362 It seems the plaintiff attended the offices of VCL after Mr Bektas moved to that

firm, having received the plaintiff’s instructions to transfer his file to that firm. A

screening appointment on 22 November 2007 was noted in VCL’s letter to the

plaintiff of 12 June 2012. However, the plaintiff having deposed to attending

on that occasion later denied this was the case.

363 The June 2012 letter also referred to a letter of 14 February 2008. The plaintiff

was unsure whether he had received it. In that February 2008 letter, the

plaintiff was requested to provide details of his current treatment, treating

doctor and pharmacy and his incapacity for work as well as details of any

impending medical appointments. He was advised if he had any further

queries to contact VCL.

364 The plaintiff did not respond to this letter.



365 Whilst he said he threw out letters from Mr Bektas, the plaintiff actually had

kept them.147

366 The letter indicates Mr Bektas intended to pursue a claim on the plaintiff’s

behalf.

367 The plaintiff maintains he left the conduct of his claim to his solicitors.

However he became concerned why it was taking so long and a number of

occasions called VCL but there was no response to his calls. Perhaps in late

2011, he asked his daughter in law, Amira to assist him. Her phone messages

left with VCL also did not receive a response.

368 In his third affidavit, the plaintiff deposed Amira was advised by Mr Bektas that

he could not represent the plaintiff. In his final affidavit, the plaintiff deposed

he became aware this was the case on receipt of the letter from VCL dated 12

June 2012.

369 Amira deposed she became aware of this situation when the plaintiff showed

her the June 2012 letter.

370 Counsel for the plaintiff submitted the plaintiff should not be held responsible

for the inaction of his solicitors.148

371 However, although there does not appear to have been much done by Mr

Bektas at either firm, the plaintiff’s conduct has to be assessed and,

depending on the circumstances of the efforts made, leaving a matter with

solicitors may or may not be an adequate explanation for the delay.149

372 It might be if the plaintiff’s evidence is accepted in this case as to Mr Bektas’

inactivity and failure to respond to numerous telephone calls and requests for

147 T209 148 T211; Millard v State of Victoria (2006) VSCA 29 149 Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 13 and Lord v Australian Safeway Stores Pty

Ltd [1996] 1 VR 614



a conference, there is likely to be such a cause of action available.150

373 However, in my view, the plaintiff showed little interest in his claim, not

providing any material requested by Mr Bektas. As counsel for the defendant

submitted the plaintiff cannot sit back and do nothing for years, not responding

or cooperating.151

374 I accept that the plaintiff did not attempt to contact Mr Bektas until around the

time the limitation period expired. This situation was consistent with a person

who had simply decided not to pursue a claim and not with someone who was

relying on his solicitor to do it on his behalf.

375 Perhaps an explanation is, as the plaintiff accepted momentarily,152 the other

medical ailments from which he suffered, and continues to suffer, were so

much greater than his shoulder that the potential claim for a transport accident

injury did not really matter to him.

376 This is not a case of lack of knowledge on the plaintiff’s part of the limitation

period. He knew of the time limits and did nothing before the expiration.

377 There were then additional delays with the engagement of the plaintiff’s new

solicitors, Hymans. That firm wrote to the defendant on 6 March 2013 advising

it was acting on the plaintiff’s behalf. The next correspondence from that firm

was by letter dated 17 September 2013 requesting an impairment

assessment. A serious injury certificate was requested by letter dated 2 June

2014. This request was denied by letter from the defendant dated 5 August

2014.

378 On 2 September 2014, this Originating Motion was filed. It was amended on 5

May 2015 adding the Section 23 A application.

379 In terms of prejudice, counsel for the defendant submitted the case may well

150 Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [26] 151 T197 152 T102



proceed as an assessment and there would be difficulty disentangling what is

accident related and what is related to the plaintiff’s other health issues.

380 There is also the issue of causation in the left shoulder, with the defendant

denying that the plaintiff suffered a left shoulder injury in the accident.

381 It was submitted it would now be more difficult to challenge the plaintiff’s

evidence as to the onset of his symptoms or to investigate the source of to

whom he allegedly made a complaint. A stark example is the completion of

the Transport Accident Commission form.

382 Counsel for the plaintiff made only one brief comment as to prejudice. He

submitted, had the claim been brought within time, various witnesses may

have had the same difficulty with their memory as they would have at the time

the matter is ultimately heard.153 However, as Counsel for the defendant

responded, it is not an answer for a plaintiff to say that whatever prejudice

there may be, it would also have existed had the proceeding commenced

within time.154

383 In my view, in light of the plaintiff’s unsatisfactory evidence generally, his

knowledge of the limitation period, the delay which appears to have resulted

more from his inactivity and lack of interest in his case than his solicitors and

to a lesser extent, the risk of both general and specific prejudice, the plaintiff

has not established that it is just and reasonable to extend the limitation

period.155

384 Accordingly, this application is also dismissed.

- - -

153 T211 154 T214; Brisbane South Regional Health Authority v Taylor (supra) per Toohey and Gummow at 548-

549 155 Bell v SPC Ltd (1989) VR 170 at 174-5

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