DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application under 39(5)(c) of the Motor Accident Insurance Act 1994 (“the Act”) for leave to bring a proceeding in the District Court for damages based on a motor vehicle accident claim.  The first applicant^[1] claims that he was injured in a motor vehicle accident on 19 May 1999.  No notice of claim was given to the insurer against which the action was to be brought within nine months of the accident or the first appearance of symptoms of the injury.  A notice in purported compliance with s 37 was given on 20 December 2002,^[2] but the solicitors for the respondents alleged that in various respects the requirements of the Act had not been complied with, and a further notice was given on 14 February 2003.^[3]  On 20 February 2003 the respondents’ solicitors, in compliance with s 39(1)(b), gave notice that there had not been compliance with Division 3 Part 4 of the Act because the notice of claim was not given within nine months of the motor vehicle accident or the first appearance of symptoms (which is not disputed), and because the explanation for the delay in lodging the claim form was not accepted.^[4]  The solicitors also advised that the second respondent did not waive compliance with the requirements of the Division.  Accordingly unless leave is given on this application the applicants will be unable to sue for damages for any injury suffered because of the accident.

2. [2]
   The application was filed on 10 May 2002, within the three year limitation period, and accordingly was “made” before the end of the limitation period for the purposes of s 57(1) of the Act.^[5]  If leave is granted proceedings may be brought within six months after the date on which leave is granted, notwithstanding that the limitation period has now expired:  s 57(2).  Because of the difficulties associated with the Act and in particular s 57^[6] this was an appropriate course, and it was not suggested that any particular significance was attached to the delay in having the application heard after it had been filed.  A good deal of the time spent since then has been devoted by both sides to gathering relevant material, a large volume of which was put before me on the hearing of the application.^[7]

3. [3]
   The Act does not indicate directly what criteria are to be applied by the court in deciding whether to give leave under s 39(5)(c), or what factors are relevant. Presumably the decision is to be made bearing in mind the objects of the Act. These are set out in s 3; the relevant one is paragraph (c): “To encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.” This involves a wider interest than solely that of the person wishing to bring such a claim, in the present case the applicants.^[8]  Nevertheless, it has been said that where the limitation period will expire before the expiration of the six months referred to in s 39(5)(a)(i) of the Act, which was the situation in the present case, a court will be slow to prevent a person litigating a claim that may not settle when there are no clear indications in the legislation that that result is intended:  Re Tonks [1999] 2 Qd R 671 at 677.

4. [4]
   In that case her Honour also identified as a relevant consideration the question of the explanation for the delay, that is, the reason why the notice was given outside the nine month period required by s 37(2): Ibid p. 677. The same approach was adopted by McMurdo P in Thomas v Trans Pacific Industries Pty Ltd [2003] 1Qd R 328 at 335, and it appears to follow from what was said by Davies JA at p. 339 and p. 340 that whether and how the delay was explained were both relevant to the exercise of the discretion.  I note that in both of these cases the discussion is about the “explanation” for the delay.  That followed the use of that word in s 37(4) of the Act.  Section 37 has subsequently^[9] been amended, and the provision in what is now subsection (3) refers to an obligation to provide “a reasonable excuse for the delay”.  There is clearly a difference between an explanation and an excuse, and any obligation to provide an explanation, even a reasonable one, may well be satisfied by providing information which would not amount to a reasonable excuse.^[10]  The authorities to which I have referred indicate that the provision of an explanation, and no doubt its content, are relevant considerations but not determinative of the application.  A reasonable explanation is not a prerequisite to the granting of leave.

5. [5]
   Other matters which have been said to be relevant considerations in relation to the granting of leave are:

1. (a)
   The strength or otherwise of the apparent case on liability against the respondent.^[11]

2. (b)
   All that has occurred since the time the nine month period expired.^[12]

3. (c)
   That refusal of the application would shut out the applicant from any cause of action against the respondent forever.^[13]

4. (d)
   Whether any failure to attend to the obligations under the Act was caused by the applicant’s solicitors rather than the applicant personally.^[14]

5. (e)
   Whether there has been prejudice or risk of prejudice to the respondent as a result of the delay.^[15]

6. [6]
   This is not necessarily an exhaustive list, although the argument before me and the material relied on did focus on these matters.

The accident

7. [7]
   In order to assess the significance of these various factors, it is necessary to say something about the circumstances of the accident, and other matters relevant to the applicant’s background. The available evidence indicates that the applicant was heading in an easterly direction along Beams Road through an intersection on 19 May 1999 when the first respondent, who was heading in a westerly direction along Beams Road towards the same intersection, collided with the rear of another vehicle which had been heading west along Beams Road, but was waiting at the intersection to turn right.  As a result of that collision the other vehicle was forced into the path of the applicant’s vehicle, which collided with it.  That the accident occurred in this way is confirmed by a police report.^[16]

8. [8]
   Shortly after the accident the applicant was aware of pain and discomfort in his neck, across his chest and in his lumbar spine.^[17]  In time the discomfort in the neck and chest resolved but the pain in the lumbar region has continued, and it became significantly worse over time.  Following the accident he went to the St Andrews Hospital Emergency Centre, where he was referred for x-rays and admitted overnight.^[18]  I am not certain however just what x-rays were taken, and in particular whether they were taken of the lumbar spine.  If they were not however it remains the case that the plaintiff has had large numbers of x-rays taken of his lumbar spine over the years, because he has a considerable history of problems with the spine of one kind or another. 

Prior medical history

9. [9]
   The plaintiff who is now 52 had evidently significant back problems by the mid 1970’s, because there is material available suggesting that he had a laminectomy at the L4-5 level in about 1975.^[19]  Presumably the applicant had had back problems of some significance prior to that time, and the report of Dr Swaney suggested that that operation was initially successful, but the applicant was hospitalised for 19 days in October 1979 apparently for a further lumbar laminectomy.^[20]  He apparently returned to hospital in December 1980 for a lumbar rhizolysis, and he was admitted again on 7 July 1982 following a motor vehicle accident of some significance;  the applicant says that he swerved to miss children on bicycles and collided with a bridge.^[21]  The applicant suffered a variety of injuries from this, including having his back stirred up, but he continued to work.  He received compensation in respect of this accident under the Victorian statutory scheme. 

10. [10]
    The applicant was treated conservatively until 1984 when Dr Swaney performed postero-lateral fusion of L4-L5 and L5-S1,^[22] which was not particularly successful in relieving pain.  In October 1984 there was an operation to remove the acrylic cement, but the pain continued and on 1 August 1985 Dr Swaney revised the lumbar graft, and after further pain in the right calf the acrylic cement was again removed in December 1985.  The applicant found that he was much better after that;  he did not have constant pain, although he had some pain on some movements.  In July 1986 he was seen by Dr Swaney after a fall with some tenderness in the cervical spine, and across his back.  Dr Swaney doubted if his graft was completely sound.  At that point Dr Swaney seems to have dropped out of the picture.

11. [11]
    The applicant kept reasonably well until November 1989, when he developed problems although not involving pain radiating into the limbs or neurological symptoms. He consulted Dr Ryan, an orthopaedic surgeon, who thought there was some instability of the L3-4 level and as a result he fused that level and inserted pedicle screws on 5 March 1990.^[23] 

12. [12]
    About 1990 the applicant moved to Brisbane where he worked as a gasfitter. Apparently in October 1990 there was a further injury to his back, as a result of which he was admitted to the Holy Spirit Hospital in March 1991, when a supplementary fusion was carried out and Harrington rods were inserted.^[24]  Unfortunately a deep wound infection occurred and the rods were removed some ten weeks later.  There were other complications, but he eventually settled, although he was still suffering considerable back problems.  On 16 October 1991 exploratory surgery was conducted by Dr Jones, when some loose pieces of graft were removed, although the main part of the graft was found to be completely intact and stable from the sacrum up to L4 level.  After this surgery the wound healed up satisfactorily and the back became more comfortable.  The applicant was discharged with instructions to avoid heavy use of the back.  Revision of the scar tissue was undertaken by a plastic surgeon on 23 April 1992, and apparently all went well.^[25]  The applicant considered taking legal action in relation to the post-operative complications, but apparently that was not pursued.

13. [13]
    The applicant was involved in a motor vehicle accident in Maroochydore in 1993, when his vehicle was struck from behind, but he was not injured.^[26]    He retained a solicitor to pursue a property damage claim, which was ultimately successful, but there was never any claim in respect of any personal injury.^[27]  He did not suffer any.  The applicant said that over the years after the surgery in the early 90’s his back progressively deteriorated,^[28] and in 1997 he was referred to Dr Atkinson, who in January 1998 inserted a dorsal column stimulator.^[29]  That operation was not immediately successful, and there was a further operation on 23 January 1998 when the laminectomy was explored and the stimulator repositioned.^[30]  The applicant said that after this operation he noticed a dramatic improvement in his low back pain, and he was working unrestricted up until the motor vehicle accident on 19 May 1999.^[31] 

Post accident medical history

14. [14]
    After the accident the applicant was, as mentioned earlier, briefly hospitalised, and later consulted his general practitioner on 25 May 1999, and on 23 August 1999 he was referred back to Dr Atkinson.^[32]  This was because the back pain had been becoming progressively worse, much like it had been before the dorsal column stimulator had been successfully inserted.  He saw Dr Atkinson on 16 December 1999,^[33] and after x-rays were taken and further consultations on 22 December 1999 and 16 February 2000^[34] and 23 February 2000, and a CT scan was performed, there was surgery on 29 February 2000 when the former stimulator was removed and a new stimulator inserted.^[35]  This was not immediately successful, and there was a further operation to alter slightly the placing of the stimulator on 4 March 2000.^[36] 

15. [15]
    The applicant saw Dr Coyne, neurosurgeon, in October 2001 complaining about continuing problems in the lower back and leg.^[37]  At that stage the applicant reported that the dorsal column stimulator had worked for six months after the last revision (presumably in March 2000) but had then ceased working.  The pain was becoming unbearable and it was increasingly difficult to work.^[38]  He was also complaining about neck pain which was described by Dr Coyne as a recent exacerbation.  This led to consideration of further surgery in relation to the dorsal column stimulator.

16. [16]
    In April 2002 there was a revision of the stimulator,^[39] which was initially successful but shortly afterwards something had moved slightly and it was no longer working.  It was tested by a representative of the manufacturer of the device on 18 April 2002, to whom it appeared that the lead was not in a good position, and he suggested that a different lead be inserted, and that some x-rays be taken.^[40]  On 1 May 2002 a further operation took place, when Dr Coyne removed the existing lead and inserted a new dual channel lead.^[41]  The lead was working well at the time of discharge from hospital.^[42]  He remained happy with the operation with the stimulator as at October 2002,^[43] although he says it is not as effective as it had been prior to May 1999.^[44]   

17. [17]
    The applicant in 2001 had developed a recurrence of pain in the neck on the left side, radiating to the head and also to the left arm, with associated headaches. Physiotherapy seemed to aggravate the symptoms, and he saw Dr Coyne again in October 2002 about this.^[45]  A CT scan of the cervical spine indicated some degenerative changes particularly at the C5-6 level where there was a broad based posterior disc bulge, but no obvious neurological compromise.  There were no particular problems at the C6-7 level which would have been consistent with the arm pain.  Dr Coyne suggested that he see a pain anaesthetist.  It is not clear whether this was taken any further. 

18. [18]
    That appears to be the limit to the applicant’s medical history relevant to his spine. He apparently underwent a gall bladder operation in February this year, but that is not relevant to the matters presently in issue. At the time of the accident therefore it is clear that the applicant had significant long term problems with his lower back, which was permanently painful, the pain being controlled by a dorsal column stimulator provided that that device was properly positioned and working effectively, but not otherwise. It is not entirely clear whether as a result of the accident in 1999 there was any actual physical damage suffered by the applicant’s spine, but in circumstances where the spine had been explored surgically in connection with the dorsal column stimulator both before and after the accident, whether or not this is the case should be easily ascertainable. Indeed, it occurs to me that I have never heard of a plaintiff whose spine, both before and after the relevant accident, had been subject to such a level of investigation. I would expect that as a consequence more would be known about the impact of the accident on this person’s spine than would be known in the ordinary case, where the spine was not actually dissected open both before and after the accident.

19. [19]
    Apart from the question of whether there was any actual physical injury to the spine, his condition could have been made worse as a result of some interference in the operation of his dorsal column stimulator. It does appear from his history that it is a device which requires quite precise placement in order to ensure that it works effectively, and his recurrent back pain after the accident may well have been due to some displacement of it in the accident.^[46] 

Reason for the delay

20. [20]
    It was submitted on behalf of the respondents that the applicant had not provided a reasonable explanation for the delay, and that the explanation given is a factor which favours the exercise of discretion adverse to the applicant. It is therefore necessary to summarise what happened in the pursuit of any claim.

21. [21]
    The applicant said that by March 2000 he was struggling to cope with his duties as a gasfitter, and accordingly he considered making a claim on an income protection policy which he had taken out in about 1995 with (or through) the Westpac Bank.^[47]  He had made some enquiry and was advised that there was an exclusion in relation to lower back pain in the policy.^[48]  He was unhappy about that response because he believed that there should be no such exclusion in relation to pain associated with an accident after the policy commenced, and as a result in April 2000 he consulted a solicitor who had previously performed some conveyancing work for him.^[49]  On the applicant’s instructions the solicitor wrote to Westpac, and received a response denying liability under the policy, which the applicant accepted at that time.^[50] 

22. [22]
    He said that at that stage it did not occur to him to enquire of the solicitor about claiming damages in respect of his personal injury, and that as far as he could recall there was no discussion with the solicitor about that, or even as to how the motor vehicle accident in May 1999 had occurred.^[51]  It follows (and I infer) that he was not told anything about any time limits or other requirements of the Motor Accident Insurance Act in relation to any claim for damages about that accident.  By this time of course the nine month period had already expired.

23. [23]
    Following the surgery performed by Dr Coyne in May 2002, the applicant had a discussion with him about returning to work as a gasfitter. At that time he was advised, in effect, that because of the surgery that had been performed on the spine and the risk of further problems and the difficulty of further surgery in the future he should not return to work at all.^[52]  At this point he became concerned about his future, and again consulted the solicitor about making a claim under a different part of the income protection policy, what appeared to be separate “trauma” insurance.  The solicitor did not recommend pursuit of that line, but at this point (apparently in early May 2002) he first suggested the possibility of bringing a claim for damages under the Act.^[53]  The applicant said that this came as a surprise to him as he had not previously considered this.  The solicitor then advised that he did not practice in relation to that area, but referred him to the applicant’s present solicitors, who contacted him on about 7 May 2002.  The application as I have indicated was filed only three days later.  A notice under s 34 of the Act was given on 20 May 2002.^[54]

24. [24]
    The applicant also asserts that, until the issue was raised by the solicitor in May 2002, he had believed that, because he had previously made a claim in relation to his back following the motor vehicle accident in Victoria in 1982, he was not entitled to make another claim in respect of a back injury.^[55]  It may be that this was a result of his understanding of the way in which the system of traffic accident compensation operates in Victoria.  He said that it was because of this assumption that he had arranged the income protection insurance in 1995, in case there was some other accident in which he suffered an injury which interfered with his ability to work.

25. [25]
    It appears therefore that in practical terms the reasons why the applicants did not give any notice within the nine months period, or earlier than they did, were:

1. (a)
   The applicant was unaware of the requirements for Queensland legislation, and did not consult a lawyer during that period.

2. (b)
   Symptoms which seemed more significant immediately after the accident eased reasonably quickly, and the development of more lower back pain was something that occurred progressively over the following six months.  The problems in the other areas only became significant again in October 2001.

3. (c)
   It was only in April 2002 that he was told that he ought to give up work permanently;  until then he had been generally working normally despite the back problems, because most of the time they were reasonably controlled by the dorsal column stimulator, or he believed that that situation would return.

4. (d)
   When he consulted the solicitor in April 2000 he did not seek, and was not given, any advice about the possibility of making a claim against the respondents in respect of any injury suffered by him in the motor vehicle accident.  That possibility was not raised with him until May 2002.

5. (e)
   He had believed prior to May 2002 that there was an impediment to his claiming compensation in respect of the motor vehicle accident, because he had earlier been involved in a motor vehicle accident which caused injury to his lower back.

6. (f)
   Once the need for a notice became apparent, there was such a mass of information to be gathered in order to comply with the requirements of the Act that it took until February 2003 to comply with those requirements (except for the requirement that the notice be given within nine months).  In view of the volume of material to be collected, this was reasonable.

26. [26]
    In my opinion on the basis of this material the failure of the applicant to give the notice within the nine month period, and subsequently earlier than he did, has been explained. As to whether it was a reasonable explanation, in my opinion the more important features are that it took some months after the accident before he realised, and before he was in a position to realise, that there was likely to be any significant adverse effect to him of the accident, and even thereafter it was not until April 2002 that he realised for the first time that, as a result of the condition of his back, he ought not to work again. I accept that prior to that time he believed that he would be able to continue working notwithstanding any consequences to him of the accident in May 1999, because the problems which had developed in his lower back would ultimately be dealt with by further surgery. It was only when he was told that notwithstanding the further surgery he should stop working that he realised that he faced the possibility of significant economic loss in the future, and was confronted with the necessity to consider whether he could claim that that loss had been caused by the actions of the first respondent.

27. [27]
    This is not a case where the onset of symptoms was delayed, because there were some symptoms immediately after the accident, but it is a situation where there is some similarity to that, in that it was some time before the full significance of the injury suffered in May 1999 reasonably became apparent to the applicant, and in particular it was some time before he realised that he was facing the prospect of not being able to work generally in the future, or at least be severely curtailed in the extent to which he could do physical work in his business himself.

28. [28]
    It was submitted on behalf of the respondents that the applicant had contacted Westpac regarding making a claim as early as 13 July 1999. There had been some loss of income at that stage, but nothing very serious, and the applicant still expected that in time he would be again working normally. But it was really only in 2002 that he was confronted with the need to give up work permanently. Insofar as the delay was attributable to the applicant’s ignorance of the law, that may not be an excuse but it may be, or be part of, a reasonable explanation. Insofar as his failure to act sooner was due to any inadequacy in the legal advice given to him in April 2000, that was the responsibility of his then solicitor rather than the applicant, and as noted earlier that appears to be a consideration favouring rather than opposing the exercise of the discretion.

Prejudice

29. [29]
    It was submitted that the respondents had suffered prejudice, particularly in three respects:

1. (a)
   Records had been lost or destroyed.

2. (b)
   There had been a loss of the opportunity to better disentangle.

3. (c)
   There had been a loss of the opportunity to intervene medically and also to rehabilitate. 

As to the former, there was certainly evidence that various records relating to matters which occurred a long time ago had subsequently been lost.  There is evidence that the file of the Traffic Accident Commission relating to the accident which occurred in 1982 was destroyed in September 2002.^[56]  The respondents were not in a position to seek to obtain that material prior to that date, although would have been had the notice been given within the nine month period, so that investigations had commenced at that time. 

30. [30]
    It is true that this file has been lost, but it is difficult to see that any practical disadvantage will follow as a result of that loss. What matters in terms of an action now against the respondents is what (if anything) happened to the applicant’s back in the accident in 1999. It is known that prior to that accident he had various problems with his back, and the situation with his back at that time was quite different from the situation in the immediate aftermath of the 1982 accident, and well known as a result of extensive surgical procedures conducted recently prior to 1999. Because of this quite a lot is known about the applicant’s back at that time, and in those circumstances I cannot see any rational basis upon which details of what happened to the applicant’s back 20 years ago can be of any real significance in the resolution of the matters which would be properly in issue in an action to be commenced in respect of this claim.

31. [31]
    The same considerations apply to the fact that the file of Dr Ryan, the orthopaedic surgeon who saw the applicant in the early 1990’s, has been destroyed,^[57] and that several reports of Dr Swaney who treated the applicant even earlier have been lost or destroyed.^[58]  Quite a lot has happened to the plaintiff’s back since those doctors were involved, and what matters is not so much the detailed history, but what the actual state of the back was immediately before the 1999 accident.  I cannot see that more material from Dr Ryan or Dr Swaney would be able to throw much light on that issue.

32. [32]
    The file of the solicitors who had been engaged to advise on the possible claim against the Holy Spirit Hospital for negligent treatment in October 1991 was destroyed between 1999 and November 2002.^[59]  It is not immediately apparent what the significance of that file would have been, if it had not been destroyed.  Presumably it would have been directed to issues relevant to the treatment received in 1991, rather than the state of the plaintiff’s back in 1999.  I would expect that much of the material on the file would have been subject to legal professional privilege, and would not have been available to the respondent anyway.^[60]  Again I cannot see any particular relevance in the unavailability of this material.

33. [33]
    A solicitor was retained to pursue what the applicant said was a property damage claim in relation to a traffic accident in 1992 or 1993. His file was destroyed in or about the year 2000,^[61] but again it is difficult to see that anything in that file would have been either relevant or indeed available to the respondents.  The applicant said, and there is nothing in any of the material that I have seen to cause me to doubt this proposition, that he was not injured in that accident.  In those circumstances, it is highly unlikely that there was anything on this file to provide any information which would be of any relevance in assessing the state of his back in 1999.  This is particularly the case because in 1998 there was the two operations on the applicant’s spine, which ascertained exactly what the situation was with it, and took action which had the effect, at least in the short term, of controlling the pain from his spine problems.  What matters is the state of the applicant’s spine after those operations, and nothing on the file of the solicitor engaged in 1993 in relation to a property damage claim in respect of a motor vehicle accident that year is likely to throw any light on that issue.

34. [34]
    The respondents also complain about the uncertainty as to what documentation exists in relation to the claim for economic loss on the part of the applicant. Whether or not there are difficulties with documenting that claim (and it is commonplace that claims by small businessmen are seen in circumstances where the documentation in relation to their economic loss is sketchy or defective) there is no reason to think the position is any worse than it would have been if notice had been given promptly. In any case, to the extent that there are deficiencies in this area one would expect them to rebound on the applicants rather than on the respondents.

35. [35]
    Overall it does not seem to me that there is any substance in the complaints of prejudice arising on the basis of lost or destroyed records. Rather than making it more difficult to resolve the issues, the removal of this essentially irrelevant material will prevent any trial from being complicated unnecessarily, which might have distracted from the importance of focusing on the relevant issues.

36. [36]
    With regard to the question of disentangling, the respondents submitted that they were placed in an almost impossible position seeking to show to what extent it could be said that any problems now suffered by the applicant are attributable to the motor vehicle accident rather than the underlying condition, or in seeking to show that in the future the underlying condition would have been likely to be as serious anyway (or at least that there is some real possibility of that). Reference was made to the opinion of Dr Morgan, an orthopaedic surgeon, who has been supplied with the material which is available since 1999, including the operation reports of Dr Atkinson from 1998 and 2000 and of Dr Coyne from 2002.^[62]  Dr Morgan was of the opinion that it would have been advantageous for independent medical examinations to be conducted shortly after the accident, and before the two surgical procedures had been performed.  It seem to me this opinion must necessarily be based on the assumption that Dr Atkinson’s opinion as to the state of the applicant’s back as revealed in those two operations might not be reliable. 

37. [37]
    Unless the independent doctor was proposing to dissect the applicant’s spine, that doctor would necessarily not find out as much about the true situation as Dr Atkinson found out in his operation in February 2000. The same applies to the consideration that it would now be difficult to determine following the latest surgery what the applicant’s condition was as a result of the accident. Again that seems to be based on the proposition that one has to ignore the information available to Dr Atkinson (and indeed the information available to Dr Coyne who has also opened up and examined the applicant’s spine). It is unhelpful to note the obvious proposition that the applicant had significant problems with the lumbar spine prior to the accident. It is hardly going to be necessary for the defendant to call expert medical evidence to prove that.

38. [38]
    Dr Morris also expressed the opinion that it would be difficult to disentangle his current condition from his previous condition. With respect I doubt that that is the situation in this case as much as it would be in the ordinary case where there is some evidence of pre-existing problems. That is a situation not uncommonly dealt with, and one where courts frequently have the disadvantage that not very much is known about the pre-accident condition of the applicant except that there were some problems which pre-dated the relevant accident. In the present case the real significance of the position is not that there is a shortage or absence of medical evidence, but that there is rather more and better medical evidence available about this applicant’s spine than is commonly the case. That is not a reason to think it will be more difficult to arrive at the truth of the matter; if anything it should be much easier to arrive at the truth of this case.

39. [39]
    That may not necessarily be a particularly helpful situation from the point of view of the applicants. There seem to be two possible consequences of this accident to the lumbar spine of the applicant: either there was some physical damage suffered by it (which may well include soft tissue injury), or the accident in some way dislodged the dorsal column stimulator. I would expect that Dr Atkinson would be in an excellent position to comment authoritatively on both of these questions. The fact that the particular advantage enjoyed by Dr Atkinson may make it in practical terms impossible for the respondents to obtain other expert medical evidence which might cast any doubt on that assessment is not a reason to include that the respondents are prejudiced by the situation. I would have thought that, whether or not there was an independent medical examination between the accident and the subsequent operations performed by Dr Atkinson, any judge would have been bound to recognise the enormous advantage which Dr Atkinson had in relation to any pronouncement as to the condition of the applicant’s back, and the true effect on the applicant of the motor vehicle accident.^[63] 

40. [40]
    In my opinion therefore the respondents have not lost anything of any real importance because they have lost the opportunity to have the applicant independently examined. I strongly suspect that, given the complex state of the applicant’s spine at that time, it is highly unlikely that any doctor who did no more than look at the outside of the applicant’s back at that point of time would be able to contribute anything of any real value to the resolution of the real issues in any such action. The risk of prejudice arises because of the risk of the respondents’ not being able to make out what would have been a good defence, or a matter which would have tended to reduce the damages payable. It is not the mere opportunity to gather evidence of a particular kind which is significant, but whether the evidence might have had such an effect.

41. [41]
    The third ground relied on was the lost opportunity to intervene medically and to rehabilitate. I cannot take very seriously the suggestion that, if the respondents had been notified about this accident earlier, they would have been able to do better in terms of treating the applicant’s condition than Dr Atkinson and Dr Coyne did. It is not the situation that the applicant’s condition was neglected for an extended period because of the absence of the tender ministrations of the licensed insurer. The same applies to rehabilitation; it assumes that the second respondent is aware of something helpful for the applicant’s back of which both Dr Atkinson and Dr Coyne would be expected to be ignorant, a possibility that I do not take seriously.

42. [42]
    In my opinion when one focuses on the matters which ought properly to be in issue in a claim of this nature, it is apparent that the protestations of prejudice by the respondents are unjustified. It may well be that in this case the effect of the accident in 1999 will have been, one way or the other, to change the applicant from somebody who had a serious problem with his lumbar spine, which he was able to cope with by the use of a dorsal column stimulator to limit his pain so that he was still largely able to work, to someone who is unable to work indefinitely. If so, there could well have been significant economic loss suffered as a result of this accident. On the other hand, the only adverse consequence to the applicant may have been that his dorsal column stimulator electrodes were displaced, something which was rectified in due course by surgery, and something which could well have happened anyway even if the accident had not occurred, and that Dr Coyne’s advice that the applicant should no longer be working could well have been given even prior to the date of the accident. In other words, the applicant was on borrowed time anyway so far as his job was concerned. If that be the appropriate analysis, the applicants’ damages may well be minimal.

43. [43]
    I mention these matters not to suggest that either is necessarily a correct analysis, but merely to emphasise that at this stage it is not possible to know what the final outcome of the litigation of the applicant’s claim may be, and to emphasise that I am not expressing any opinion on that subject myself. It is sufficient to say that there may well be a significant claim for damages, and I think it likely that there will be at least some damages associated with the effect on the applicant’s lumbar spine. There could well also be some damages associated with the effect on the neck, in respect of which the various arguments in relation to prejudice do not apply anyway. One way or another therefore the applicants do seem to have some claim for damages, and possibly a significant claim.

44. [44]
    It also appears that the applicant has a clear case on liability; there is nothing in the material to suggest that the accident might be the fault of anyone other than the first respondent, and nothing to suggest that the respondents’ ability to litigate on the issue of liability has been in any way prejudiced by any delay. The apparent strength of the applicant’s case on liability is a relevant factor, as is the circumstance that refusing the application would shut out the applicants from any cause of action (which may be for substantial damages) against the respondents forever. Both of these considerations in my view favour the exercise of discretion in favour of the applicants.

45. [45]
    In other respects, there has been a reasonable explanation for the delay, to some extent the failure to give the notice more promptly after the expiration of the nine month period was attributable to a failure to advise on the part of the solicitor who was consulted in March 2000, and there has been in my opinion no substantial prejudice to the respondents as a result of the delay, because of the particular and unusual circumstances of this case. Bearing in mind the attitude expressed by White J in Re Tonks (supra) at 677, in my opinion in all the circumstances the discretion should be exercise in favour of the applicants.

46. [46]
    I therefore order that the applicants have leave to bring a proceeding in the District Court against the respondents for damages based on the claim arising out of a motor vehicle accident to the first applicant on 19 May 1999 notwithstanding non-compliance with the requirements of Division 3 of Part 4 of the Motor Accident Insurance Act 1994.