14 AUSTRALIAN ADVOCACY INSTITUTE BELINDA FROST

14 AUSTRALIAN ADVOCACY INSTITUTE BELINDA FROST
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1 FURTHER INFORMATION ON SOUTH AUSTRALIAN ELECTRICITY TRANSMISSION REVENUE
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14 A SURVEY OF KOHA IN AUSTRALIAN SPECIAL LIBRARIES

Belinda Frost

- 14 -

AUSTRALIAN ADVOCACY INSTITUTE

Belinda Frost (Plaintiff)

Jack Frost (First Defendant)

and

Transport Accident Commission

(Second Defendant)

Australian Advocacy Institute

These case study materials are copyright. Subject to the Copyright Act 1968, they and any part of them may not be reproduced in any material form, performed in public, broadcast, transmitted by subscription, cable service, or adapted without the prior written permission of the Australian Advocacy Institute.

Prepared by Elizabeth Brimer, January 2004

Formatted SW Nov 2003

A ustralian Advocacy Institute

INSTRUCTIONS

The participants should consider these applications from the point of view of both the plaintiff and the defendants.
Specific roles to present the applications for the plaintiff or the defendants are allocated in the timetable.
Participants should consider the relevant statutory provisions.
The defendants contest that the injury is permanent within the meaning of the Act.
Participants may be assisted by reference to the following cases:

A ustralian Advocacy Institute

BACKGROUND

APPLICATION PURSUANT TO SECTION 93(4) OF THE TRANSPORT ACCIDENT ACT 1986 AND AN APPLICATION PURSUANT TO SECTION 23A OF THE LIMITATION OF ACTIONS ACT 1958

Belinda Frost was born on 26 November 1965. She was injured as a passenger in a transport accident on 30 June 1994. The car in which she was a passenger was being driven by her husband, Jack Frost. There was another passenger in the vehicle, a friend of the couple, Mr Panda McQueen. He was seated in the rear of the car. At the time of the accident Belinda was asleep. She recalls nothing of the accident circumstances.

Belinda Frost sustained a fractured orbit, a fractured jaw and cuts from what was suspected to be windshield glass to her face and arms. She had maxillofacial surgery and plastic surgery to stitch and repair her facial lacerations. The plastic surgeon at the Royal Brunswick Hospital, where she was ultimately taken for surgery, had done an excellent job and her facial fractures and her scars, with one exception, had healed very well.

The vehicle in which the party were traveling was Victorian registered. The registration had been paid.

The motor vehicle accident was a single vehicle accident. The car left the road and hit a tree. Jack Frost died as a result of head injuries sustained in the motor vehicle accident.

Panda McQueen was injured in the accident but had recovered well from his injuries. According to a statement he gave to police, he remembered the accident circumstances. He recalled that the accident occurred early on the morning of 30 June 1994. He and the Frosts were travelling home from a barbecue in the country. They had elected not to stay overnight as suggested by the hosts, Jill and Bill Hamilton. Jack and Belinda, both nurses, were rostered on for duty at the Royal Brunswick Hospital the following day. He recalls the car drifting to the left of the road and when he called out to Jack he saw that he appeared to have fallen asleep. He said that his recollection was that Belinda Frost was not wearing a seat belt at the time of the collision. He recalled that she had been tired and had laid her seat back to sleep and had taken off her seat belt to get comfortable.

Jack Frost’s autopsy results confirmed that he had died as a result of head injuries sustained in the motor vehicle accident. A blood analysis revealed that he had a blood alcohol reading the equivalent of 0.04.

The accident scene was attended by members of the Accident Investigation Squad. An inspection of the car showed that there was a head print on the front seat passenger and driver’s sides of the vehicle.

A police statement was taken from Belinda Frost. She said she did not recall what happened as she was asleep at the time of the accident. She said she was wearing a seatbelt.

In December 2001 Belinda Frost requested a serious injury certificate pursuant to Section 93(17)(b) of the Transport Accident Act 1986. The certificate was denied on the basis of the opinion from her treating plastic surgeon Mr Buckley. Mr Buckley, the eminent plastic surgeon who had treated Belinda at the Royal Brunswick Hospital, had provided a report to the Commission at a time at which he had requested permission to undertake further corrective surgery to a scar on Belinda Frost’s nose. He felt that a new laser abrasion technique and some cell grafting could yield an excellent result to the only remaining visible scar on Belinda’s face. The Transport Accident Commission had agreed to pay for the reasonable costs of the surgery however Belinda had declined to proceed with the procedure. The reasons she gave were that she had had enough surgery and a good result could not be guaranteed.

Belinda Frost’s lawyers issued an Originating Motion out of the County Court of Victoria seeking leave to issue damages proceedings on the basis that Ms Frost had a “permanent serious disfigurement” to her face as a result of the scar on her nose. She also sought an extension of time to issue proceedings given the limitation period had expired.

At the date of the request for the serious injury certificate and at the date the Originating Motion was to be heard, Panda McQueen could not be contacted. He was, according to his father who lived in Melbourne, somewhere in India. He had traveled to India to seek spiritual guidance from a yogi and had not been in contact with his family for some years. No one knew how to contact him.

In support of her application for leave to bring damages proceedings Belinda Frost filed and served an affidavit.

The defendant, the Transport Accident Commission, did not waive the limitations period defence on the basis that it was prejudiced by virtue of the fact that a key witness relevant to negligence and contributory negligence could not be located. At the time of the hearing of the Originating Motion it still considered that the serious injury threshold pursuant to Section 93(17)(b) had not been met because the relevant disfigurement is not permanent.

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

No. CC 34799ZP

BETWEEN:

BELINDA FROST

Plaintiff

and

TRANSPORT ACCIDENT COMMISSION

Defendant

AFFIDAVIT OF BELINDA FROST

Date of document:

Filed on behalf of: The Plaintiff

Solicitor’s Code: 1HG887

Prepared by: DX: 0998

S and W Lawyers Tel: 9225 3409

234 Collins Street Fax: 9225 7788

Melbourne VIC 3000 Ref: MN.890098

This is the exhibit marked “BJF1” produced and shown to BELINDA JEMIMA FROST at the time of swearing her Affidavit on the day of 2003.

Before me: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exhibit “BJF1”

True copy of medical report of Mr Donald Buckley

MEDICAL REPORT FROM MR DONALD BUCKLEY (PLASTIC AND RECONSTRUCTIVE SURGEON)

Belinda Frost was my patient and was admitted to my care at the Royal Brunswick Hospital on the morning of 30 June 1994. I knew Belinda as she also worked at the hospital.

She was treated by a colleague of mine for fractures that she had sustained to her face. I worked with him in theatre to repair some deep facial and upper body lacerations.

Having reviewed my operation notes I can confirm that I removed pieces of glass from the lacerations to her face and upper arms. This was glass from the windscreen or windows of the car. It is not uncommon for me to have to remove glass of this kind from patient’s skin after a motor vehicle accident.

I debrided the wounds and placed sutures of minimal depth to avoid additional scarring.

Over the next six months I prescribed treatment for the scaring being a topical application of silicone gel and also undertook periodically, very light laser abrasion to ensure maximum healing.

We were able to achieve an excellent result with only one scar still being visible at the time I reviewed Belinda in November 2001.

Belinda originally came to see me on referral from her general practitioner. A history was given to me that she had become concerned about the scar on her nose after someone had commented on it at a party. She came to see me because she was very pleased with the treatment I had given her previously and wondered if there was anything else that could be done for the scar on her nose to improve it. I suggested to her that we try a new laser technique which would seek to correct the scar and also do some cell grafting to re-heal the scar tissue.

I expect a good result from this procedure and I would ask that the Transport Accident Commission please consider the funding of the procedure.

I look forward to hearing from you.

Yours faithfully

Mr Donald Buckley

Plastic and Reconstructive Surgeon

29 November 2001

cc Belinda Frost

Police Statement of Senior Sergeant Crabtree

I attended the scene of a motor vehicle accident on the morning of 30 June 1994.

I attended the scene on the Ballarat highway just north of Ballarat at approximately 4.00 am.

On arrival, ambulance officers were retrieving the body of a deceased man, Mr Jack Frost, from the driver’s side of a vehicle.

Ambulance officers were also attending to two injured passengers, Mr Panda McQueen and Ms Belinda Frost.

Examination of the vehicle revealed that there were two head prints on the windscreen of the vehicle indicating that the front seat occupants had hit the windscreen.

Examination of the seatbelts revealed no striation marks indicating that these were not being worn by either of the front seat occupants at the time of the accident.

In interviewed Panda McQueen on 3 July 1994. I produce his statement.

Apart from being an operational member of the Victoria Police Force, a hold a bachelor of engineering from Monash University and a masters degree in accident investigation and reconstruction from that same university.

For the last 15 years I have been a member of the accident investigation squad of the Victoria Police.

Signed

Senior Sergeant Rodney Crabtree

30 June 1994

Police Statement of Panda McQueen

I was a passenger in a vehicle driven by Jack Frost on the morning of 30 June 1994. I was sitting in the back seat. The other person in the car was Belinda Frost, Jack Frost’s wife and my friend. We had been at a barbecue at the home of Jill and Bill Hamilton.

The accident occurred early on the morning of 30 June 1994. It occurred at approximately 2.00am. We had left the Hamiltons at around 1.00am.

I remember that just before the accident we had started to slow down and drift a bit to the left of the road. At that point I thought that Jack was nodding off. When I called out to him I noticed that he was appeared be asleep. We then hit a tree. It impacted on the front passenger’s side of the car.

Belinda was asleep at the time of the collision. She had taken her seat belt off and had laid her seat back to get comfortable. I think she was asleep when we hit the tree. She hit the windscreen when the car hit the tree. I remember seeing Belinda hit the windscreen. I remember this because I was concerned about her because I could see that it was her side of the vehicle that was heading towards the tree. Therefore as I watched in that direction I saw everything that happened.

With the benefit of hindsight we probably should have stayed at Jill and Bill’s overnight. Jack was tired and I remember we all discussed whether it was sensible to drive home at this early hour as we went to leave. Jack thought he would be okay but I remember Belinda and I had our doubts. In the end the reason we did not stay was because Belinda and Jack had to work the next day at the Royal Brunswick Hospital. They are both nurses.

None of us had had much to drink. I remember that Jack had had a few light beers but was conscious of the fact that he may need to drive home and was being careful with what he had to drink all evening.

I was wearing my seatbelt.

Signed

Panda McQueen

3 July 1994

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

No. CC 34799ZP

BETWEEN:

BELINDA FROST

Plaintiff

and

TRANSPORT ACCIDENT COMMISSION

Defendant

AFFIDAVIT OF PURPLE ORCHID

Date of document:

Filed on behalf of: the Defendant

Solicitor’s Code: 15260

Prepared by: DX: 34

TAC Law Pty Ltd Tel: 9664 5555

222 Exhibition Street Fax: 9656 9900

Melbourne VIC 3000 Ref: PO: 94/0090987

DEPONENT: PURPLE ORCHID

SWORN:

I, Purple Orchid, of 222 Exhibition Street, Melbourne in the State of Victoria, solicitor, make oath and say as follows:

1. I am a solicitor is the sole and permanent employ of TAC Law Pty Ltd and have the care and conduct of this proceeding on behalf of the Defendant.

I am instructed that Ms Belinda Frost made a request via her solicitors, for a serious injury certificate on 18 December 2001.

A review of the Defendant’s claims file reveals that at the time this request was made attempts had been made to locate Mr Panda McQueen, a rear seat passenger in the vehicle driven by the deceased Mr Jack Frost, the motor vehicle in which Ms Frost was also a passenger on the date of the subject accident.

On 23 December 2001 Mr McQueen’s family were located. His father Mr Bruce McQueen advised the Defendant’s representative that neither he not his wife had been in contact with their son since March of 1998 when he travelled to India to seek spiritual guidance from a yogi. They did not know how to contact their son.

On 23 December 2002 I contacted Mr Bruce McQueen again to see if their son had been in contact with him or anyone else in the McQueen family. I was advised by Mr McQueen that there had been no further contact from his son and he still had no knowledge of how he might be contacted.

Contact was again made with Mr Bruce McQueen via telephone on 5 June 2003. Mr McQueen advised me that he had no knowledge of the whereabouts of his son, other than he had travelled to India in 1998.

When the originating motion was served I contacted Sergeant Crabtree. He was discharged from the police force in January 2000. He has been under treatment for severe alcoholism and his memory has been significantly affected. He has a vague recollection of the accident but has no recollection of any of the details of the accident.

Sworn at in the )

State of Victoria this day of )

2021. )

Before me: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

S/janeb/aff-dummy

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