Keskenidis v McKenzie [2004] NSWCA 203

New South Wales Court of Appeal

CITATION : Keskenidis v McKenzie [2004] NSWCA 203 HEARING DATE(S) : 11/06/2004 JUDGMENT DATE : 11 June 2004

JUDGMENT OF : Handley JA at 1; Cripps AJA at 23 DECISION : (1) Leave to appeal granted.; (2) The claimant to file a notice of appeal within fourteen days.; (3) Appeal allowed.; (4) Set aside the decision of the District Court and in lieu order that the Notice of Motion of 11 November 2002 be dismissed with costs.; (5) No order as to the costs in this Court.

CATCHWORDS : LIMITATION OF ACTIONS - extension of limitation period - Motor Accidents Act - application for extension seven years out of time - defendant prejudiced on medical issues - extension refused - no question of principle - ND LEGISLATION CITED : Motor Accidents Act 1998 PARTIES : George Keskenidis (Claimant) Robyn Dorothy Anne McKenzie (Opponent) FILE NUMBER(S) : CA 40555/03 COUNSEL : D Campbell SC/S C Finnane (Claimant) P Dooley (Opponent) SOLICITORS : Creagh & Creagh (Claimant) Low Doherty & Stratford (Opponent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 936/02 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40555/03

HANDLEY JA CRIPPS AJA

11 June 2004 GEORGE KESKENIDIS v ROBYN DOROTHY McKENZIE Judgment 1 HANDLEY JA: The application before the Court involves a summons by George Keskenidis, represented by his compulsory third party insurer, for leave to appeal from a decision of Delaney DCJ given on 6 June 2003. His Honour granted an application for an extension of time to commence proceedings under s 52(4) of the Motor Accidents Act 1998 in the form which it took at the time of the subject accident in April 1992. 2 The application was lodged on 11 November 2002 by the opponent's present solicitors who acted with commendable dispatch. However, the accident in question occurred on 5 April 1992 and the limitation period, effectively three years and six months, under the Act as it then stood expired on 5 October 1995. The application was over seven years out of time and was made ten and a half years after the accident. 3 The accident occurred in daylight on a fine day and involved the claimant running into the back of a stationary vehicle waiting to make a right hand turn into a service station. The opponent says that she had her trafficator lights on indicating her intention to make a right hand turn and she had been stopped for approximately a minute before she was hit from behind. The claimant was charged by the police with negligent driving. There was no reason to suppose that the claimant has been prejudiced on the question of liability despite the very serious delay that has occurred. 4 The question of damages, however, is another matter. The evidence before the primary judge consisted of an affidavit by the applicant, an affidavit by her former solicitor and an affidavit by her current solicitor. 5 The claimant suffered a neck injury as a result of the accident. The P4 form indicates that she suffered a whiplash injury and she was taken by ambulance to Blacktown Hospital. It appears that both vehicles were written off as a result of the accident and she remained in hospital for eight days after her admission. 6 She consulted her original solicitors the day after her discharge and it is apparent that the unfortunate history of delay until the opponent's present solicitors were retained in January 2002 is, so far as one can tell, solely the responsibility of her original solicitors. 7 A claim form under the Act was obtained by those solicitors but not until 1995, a few months before the limitation period expired. The solicitors also obtained a medical certificate from Dr Irani, who treated the applicant at Blacktown Hospital, and he certified on 23 September 1992 that she suffered a cervical strain as a result of the accident. 8 The plaintiff's claim form, which was eventually submitted to the insurer in 1995, alleged that she suffered a fracture of the neck, bruising and swelling of the left thigh, bruising of the right ankle and an aggravation of an old injury to her back and that her continuing symptoms were headaches, dizziness, pain in the neck radiating to the left elbow, a clicking noise in the back of the neck, back pain and upper back pain. 9 At a later stage in 1996 she complained to Dr Ellis, who was qualified to give a medico-legal report on her behalf by her original solicitors, that she also suffered a knee injury as a result of the accident. There was no evidence or suggestion of this at the time and the first suggestion that she injured her left knee in the accident appears in the report of Dr Ellis of 10 July 1996, over four years later. The suggestion that the opponent has a credible claim for injury to her left knee is unsustainable and I note in her favour that she did not make that claim in the affidavit which she filed in the District Court. 10 Following the receipt of the claim form, the insurance company wrote to the then solicitors for the opponent on 8 May 1995 in which they sought certain information and copies of various documents. The information sought included names and addresses of all treating practitioners and particulars of out of pocket expenses. The material before the Court includes a draft reply to that letter prepared by the opponent's former solicitor which identifies Dr Irani as one of the treating practitioners, a physiotherapist Van Kessel, and the Pacific Medical Centre. It also appears from the statement of the out of pocket expenses that an amount of $176 had been incurred to the Western Sydney Area Health Service for a CT scan. Inferentially, the opponent's complaints of pain in her neck on admission to the hospital led to a diagnosis of a suspected fracture of the neck which was resolved when a CT scan was taken. This enabled Dr Irani to certify that she was only suffering from a cervical strain. 11 The solicitors for the applicant failed to respond to the request for information from the insurance company in its letter of 8 May, despite two reminders and eventually in 1996 they closed their file and the matter remained dormant until the application was made on 11 November 2002 for an extension of the limitation period. 12 The critical issue in this case is necessarily that of prejudice in relation to the issue of damages in the light of the very substantial delay that has occurred. 13 Delaney DCJ found that the claimant had suffered some prejudice but held that the insurer had not been deprived of an opportunity to have the opponent medically examined after it received the motor vehicle claim form in April 1995. In those circumstances his Honour was not persuaded that the insurer had suffered such prejudice as would prevent a fair trial of the action. He went on to say that the medical evidence in the applicant's case was less than satisfactory. 14 With respect, the insurer was under no obligation following receipt of the claim form to take any steps to have the opponent medically examined until a full and satisfactory explanation for the delay had been provided. No such explanation was provided prior to the commencement of the proceedings. In those circumstances the insurer was not obliged to incur expense or take any steps to investigate the claim. In my view the learned primary judge fell into error in taking a different view. 15 Apart from that, I have been persuaded that the claimant would suffer serious prejudice if it had now to contest this claim on its merits, so far as damages are concerned. 16 The opponent fairly disclosed in her affidavit of 15 October 2002 that she was injured in two road accidents in 1980. In the first, she suffered a neck injury and consulted Dr Mortar of Abbotsford and was off work for four to six weeks. Shortly afterwards, she was involved in another car accident when she was hit head on and suffered further injury to her neck and was admitted to Royal North Shore Hospital. She did not make any claims for compensation arising out of those accidents. She said she made a complete recovery from the first accident but disclosed that since the second she had continued to suffer neck pain from time to time. 17 She suffered a further injury at work in 1985 when she fell and injured her lower back, pelvis and coccyx. She brought proceedings against her then employer which were compromised. A draft reply to the insurance company in the file of her former solicitors disclosed that proceedings under the Workers Compensation Act and at common law arising out of her 1985 accident were settled on 9 April 1990 for a sum of approximately $34,000 inclusive of costs. There were available extensive medical records, including from the Prince Alfred Hospital, Dr Benanzio, Dr Razanyacam, Dr Teychenne and Dr Gleeson. Apart from Dr Mortar, who the plaintiff consulted in 1980 after her first motor vehicle accident, it does not appear that there is any medical material available to either the opponent or the claimant about the condition of her neck between 1980 and 1992. 18 In 1996 Dr Ellis found physical symptoms on examination which supported the plaintiff's complaint of a neck injury and said that his impression was that she had suffered a musculo-ligamentous contusion and aggravation of degenerative changes in her neck with associated pain and disability. It does not appear that he had available a copy of the CT scan but he does refer to it as establishing that no fractures were found on admission to the hospital. 19 Details of the applicant's medical history since late 1992 are scanty. Apart from the medico-legal report of Dr Ellis, there are references to consulting general practitioners at the Pacific Medical Centre who are not identified and a Dr Castleman at Seven Hills who was consulted for arthritis in November 1996. The first reference to arthritis in the material before the Court is in February 1996 and she was seeing Dr Castleman later that year with complaints of arthritis throughout her body, neck, back, hands and feet. 20 A cervical strain may not involve a substantial claim but if it aggravates pre-existing asymptomatic degenerative changes leading to arthritis the claim can become a substantial one. There is no evidence before the Court that the CT scan taken at the hospital in April 1992 is still in existence and there is no evidence that the radiographer's report is available. Inferentially, Dr Irani would have seen that CT scan and the report but evidence has not been placed before the Court to establish whether his clinical notes contain any relevant information about the state of the plaintiff's neck as shown by the CT scan. It is conceivable that degenerative changes and evidence of arthritis was discernible on the CT scan as a result of the plaintiff's head and neck injuries in 1980. This could have been of vital importance in enabling the claimant to keep this claim within modest levels, attributing the bulk of the plaintiff's neck symptoms and arthritis to her condition prior to this accident. 21 In these circumstances the claimant has established a strong case of prejudice, not only the prejudice which would be inferred from delay of this length but actual prejudice in relation to medical evidence which is no longer available and the loss of the opportunity to have the plaintiff medically and radiologically examined at an early stage before there were any significant changes in the condition of her neck following this accident. 22 In these circumstances, I would propose that the following orders be made: