Significant CTP cases of 2021: Victoria

22 November 2021

Damages claims arising from motor vehicle accidents occurring in Victoria fall under the Transport Accident Act 1986 (Vic) (TAA).

Despite the interruptions caused in our jurisdiction due to ongoing COVID-19 restrictions over the last 18 months, there have been a number of significant (or at the very least interesting) decisions handed down in Victorian courts in common law claims brought under the TAA.

The following is a snapshot of some of the more notable decisions.

RBK v Montague & TAC [2021] VSC 336

RBK v Montague & TAC [2021] VSC 336 involved a 19 year-old woman who suffered catastrophic injuries after she was given heroin and left unconscious in a vehicle. The plaintiff in this case sought a declaration from the court that the TAC indemnify the driver of the vehicle she was left in under section 94 of the TAA on the basis that her injuries arose out of the use of a motor vehicle.

The court in this case accepted the plaintiff was injected with heroin when she was sitting in a stationary vehicle and, as a result of being injected, she became unconscious. She remained unconscious and immobile in the vehicle for over two days. When she was discovered in the vehicle, the plaintiff was noted to have suffered various injuries. The agreed facts did not establish exactly when or how her injuries were caused.

Relevantly, the court noted there was no collision. The court surmised that the plaintiff was injured because she was unconscious and immobile inside the vehicle which had been used as the receptacle in which she was injected with heroin. She remained in the vehicle because she was abandoned by the first defendant and otherwise unconscious. The court concluded the plaintiff’s injuries did not arise out of the use of a motor vehicle on the basis that the relationship between the first defendant driving the vehicle to and parking it at the location and the plaintiff’s injuries was merely coincidental.

Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78 (25 February 2021)

Acciarito v Anthony Parcel Services Pty Ltd [2021] VSC 78 (25 February 2021) dealt with the question of whether a duty of care was owed by a principal to a delivery driver, performing work for an independent contractor. The plaintiff in this case worked as a delivery driver for the defendant, performing deliveries for Australia Post.

When he was making a delivery to a residence, the plaintiff was standing at the open passenger door of his parked vehicle when it unexpectedly moved backwards, down an incline, trapping him between the vehicle and the door and causing him injury. The plaintiff alleged his injuries occurred as a result of the negligence and/or breach of statutory duty on the part of the defendant.

Relevantly, the defendant issued what was referred to as a ‘safety alert’ to remind drivers of delivery vans of the risks associated with not applying the handbrake in vehicles. Evidence was tendered during the trial which indicated the plaintiff acknowledged he had received and understood the handbrake reminder by signing an information document.

The court concluded the defendant was entitled to rely on the fact that the plaintiff, an experienced delivery driver, had received and understood the handbrake reminder and knew that his means of securing the vehicle safely when parked were limited to the position in which he parked and application of the handbrake.

The court did not accept the plaintiff’s submission that his failure to properly apply the handbrake amounted to no more than mere inadvertence on his part. Rather, the court found the incident was caused by the plaintiff’s failure to properly apply the handbrake, combined with the choice of where he parked.

The court concluded the defendant did not breach either the statutory duty or the common law duty it owed the plaintiff.

McDonald v National Express Group Australia (Bayside Trains) Pty Ltd [2021] VCC 926

In McDonald v National Express Group Australia (Bayside Trains) Pty Ltd [2021] VCC 926, the plaintiff alleged he suffered injuries when he was alighting a train. The circumstances of the incident were the cause of some controversy. The plaintiff alleged that when he attempted to alight the train through an open door, the train started moving. However, the defendant submitted that it was more likely the plaintiff forced open the door of the train and attempted to disembark while it was beginning to move.

The court considered the most likely scenario was the plaintiff forcefully opened the door (which was closed) and was “able to break the pneumatic seal – using the force needed to push away a recalcitrant sibling or push a shopping trolley up an escalator – well within capacity of a strong man like the plaintiff”.

The court concluded, the defendant was negligent because it had a system whereby train doors were able to be opened when the train was starting to move or was moving. That system allowed the plaintiff to egress from the train when it was unsafe and hazardous for him to do so, exposing him to the risk of injury. However, the Court applied a discount of 70% for contributory negligence on the basis that the plaintiff had, by and large, been the author of his own misfortune.

Implications for you

McDonald and Acciarito highlight the fact that Courts remain prepared to hold plaintiffs to account when their actions fall below the standard that is expected of the ‘reasonable person’ and discount their damages accordingly.

Devenish v Mattiacci [2021] VCC 1416

In Devenish v Mattiacci [2021] VCC 1416, the County Court dealt with a plaintiff’s application to extend time to bring proceedings for recovery of damages.

Briefly, the Limitation of Actions Act 1958 (Vic) (LAA) provides that the limitation period for bringing a claim for common law damages in respect of a transport accident injury is six years from the date the cause of action accrued. However, Section 23A of the LAA, affords the court with the power to extend these limitation periods provided it is 'just and reasonable' to do so.

This case concerned a transport accident that occurred on 4 May 2000 for which the plaintiff did not take steps to obtain legal advice about until 16 years had passed. The defendant opposed the application and asserted that due to the passage of time, he suffered both general and specific prejudice, such that a fair trial was no longer available to him.

The court accepted the significance of the plaintiff’s injury did not become apparent until he suffered a rapid deterioration in approximately September 2016. Before then, there was no suggestion that, apart from intermittent left wrist pain, he was unable to get on
with his life.

The court allowed the application to extend time but acknowledged there were valid points to be made, both for and against a decision to extend the limitation period. However, it appears to have been swayed by the fact that the circumstances of the accident were not complicated and an acceptance that the plaintiff had not acted unreasonably by failing to obtain legal advice.

The court concluded the general and specific prejudice was not such that a fair trial was unavailable to the defendant and, as such, the circumstances in favour of granting the extension of time outweighed those against.

Hassan v Noa (No 2) [2021] VSC 339

Hassan v Noa (No 2) [2021] VSC 339 also dealt with an application to extend time. However, this time, in the Supreme Court. The plaintiff in this case had suffered from homelessness, illness and addiction issues. The plaintiff was injured in a transport accident in 2005. She did not take any steps to obtain legal advice until almost nine years later. The defendant opposed the application, on the basis that he had been prejudiced by the plaintiff’s delay in bringing her application.

The court acknowledged there had been a significant delay and general prejudice caused by the effluxion of time. The court also acknowledged there had been specific prejudice due to the non-availability of police records and some witnesses. However, this was considered to have been negated by the fact that there was other documentary evidence available relating to the accident and the plaintiff’s injuries, and the plaintiff was available to give evidence.

The court concluded the prejudice to the defendant was not such that a fair trial could not be held and that the circumstances in favour of granting the extension of time outweighed those against. The factors taken into account by the court included the reasons for the delay, the plaintiff’s serious injury and the prompt action taken by the plaintiff to place the TAC on notice and initiate proceedings once solicitors were retained. Accordingly, the court considered it was just and reasonable to extend time.

Implications for you

The decisions of Devenish and Hassan highlight the difficulties defendants face when attempting to defend applications to extend time in Victoria and re-iterate that it is critical for a defendant to demonstrate some form of specific prejudice which will impact its ability to defend the claim, over and above the mere effluxion of several years.

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