Agyeman-Badu v The Nominal Defendant
[2012] NSWDC 35
•13 April 2012
District Court
New South Wales
Medium Neutral Citation: Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35 Hearing dates: 29 March 2012 Decision date: 13 April 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused.
(2) Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW)) granted.
(3) Plaintiff to pay defendant's costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.
Catchwords: LIMITATION OF ACTIONS - Motor Accidents Compensation Act 1999, s 109 - plaintiff's application for leave to commence proceedings pursuant to s 109 - whether statement of claim was in fact filed in time - meaning of "issued" in s 109 - leave to commence required - defendant's claim of prejudice - whether a fair trial in all the circumstances was possible - held: application for leave dismissed - defendant's application to dismiss proceedings for failure to give a full and satisfactory explanation for delay - plaintiff unaware of the Nominal Defendant scheme - further delay by plaintiff for three months after consulting a lawyer due to uncertainty about accident site and failure of plaintiff to contact her lawyers - held: explanation neither full nor satisfactory for the three month period following the plaintiff's consultation of lawyers Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 70, 72, 73, 92(1)(a), 109 Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Commonwealth v Smith [2005] NSWCA 478
Diaz v Truong [2002] NSWCA 265
Ellis v Reko Pty Ltd [2010] NSWCA 319
Figliuzzi v Yonan [2005] NSWCA 290
GIO General Ltd v Smith [2011] NSWSC 802
Harris v Nominal Defendant [2009] NSWDC 372
Holt v Wynter (2000) 49 NSWLR 128
Laidlaw v Touma [2002] NSWCA 190
Mancini v Thompson [2002] NSWCA 38
Nominal Defendant v Harris (2011) 57 MVR 492
Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Smith v Grant (2006) 67 NSWLR 735
Russo v Aiello (2003) 215 CLR 643
Tan v Basaga [2010] NSWSC 1143
Walker v Howard (2009) 78 NSWLR 161Texts Cited: - Category: Procedural and other rulings Parties: Plaintiff: Ama Amaniampong Agyeman-Badu
Defendant: The Nominal DefendantRepresentation: Plaintiff: Mr R B Petrie
Defendant: Mr D Ronzani
Plaintiff: PK Simpsons & Co
Defendant: Moray & Agnew
File Number(s): 2011/251665 Publication restriction: None
Judgment
Introduction
The plaintiff and defendant bring notices of motion seeking the following relief:
(a) The plaintiff seeks (notice of motion filed on 2 March 2012) leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) ("the Act").
(b) The defendant seeks (notice of motion filed on 25 August 2011) orders dismissing these proceedings.
It is convenient to deal with the plaintiff's notice of motion first, as the issues of fact and law are narrow.
The plaintiff's notice of motion
The statement of claim was filed more than two months after the issuing of a Certificate of Exemption ("the certificate") by the Motor Accident Authority (31 May 2011) but less than two months after the letter enclosing this document. Which date should be relied upon for the purposes of s 109? The question of whether or not the statement of claim was filed outside the two month period referred to in s 109 turns on the narrow issue of how the word "issued" is construed.
Section 109 and how it operates
Section 109 provides as follows:
"109 Time limitations on commencement of court proceedings
(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person-the date of death,
except with the leave of the court in which the proceedings are to be taken.
(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.
(3) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.
(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.
(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
The problem is what "issued" means. The certificate issued under s 92(1)(a) of the Act exempting the claim from assessment is dated 31 May 2011. However, the covering letter sending a copy of this certificate to the solicitors for the respective parties is dated 8 June 2011 (see annexure AA to the affidavit of Michelle Cheong dated 25 November 2011). On which date was the certificate "issued"?
If the word "issued" is defined as meaning "issued" in the sense of "posted", then, the plaintiff submits, the certificate was not "issued" until it was posted to the parties a week after the certificate of 31 May 2011 is recorded.
The parties were unable to locate any decisions dealing with the question of when the date for a decision being "issued" has been determined, either in relation to this legislation or other administrative decisions of a similar nature. Mr Ronzani has drawn to my attention GIO General Ltd v Smith [2011] NSWSC 802 at [11], where the word "issued" appears to have been used to refer to the date of the certificate. However, this decision is not of much assistance because the matter has not been considered by the court.
The plaintiff's submission is that, by analogy, s 73(6) of the Act refers to a two month period as being a period which runs after the defendant is served and the insurer receives a statement of claim. It is argued that this must mean, by analogy, that the decision of the Motor Accidents Authority is not "issued" until it is sent to the parties.
The defendant submits that the Motor Accidents Authority is an administrative body which is compelled by law to report, and that the two month period is to allow for any effluxion of time from the date of the decision and the date of it being brought to the attention of the parties.
The circumstances in which a statement of claim is served on a party, and thereafter brought to the attention of the insurer, is another matter. It is not comparable to the handing down of a decision by an administrative body, in circumstances where there are remedies if the body fails to provide a decision. I also note that a two month period occurs in relation to a number of other requirements under the Act and is generally designed to give more than the usual 28 day period for the commencement of proceedings, which Mr Ronzani submits must take into account any slight delay in the posting out of the decision to the solicitors for the parties.
Conclusions concerning when the certificate was "issued"
The date upon which the certificate is issued is 31 May 2011. The date upon which that document is posted to the parties (8 June 2011) is part of the consequential internal office procedure. It is not the date which is the trigger for the decision being issued.
This means that the statement of claim has been filed outside the two month period. Leave to commence proceedings out of time is accordingly required pursuant to s 109 of the Act. The practical result of this is that the defendant may lead evidence on the issue of prejudice, which would not otherwise fall to be considered if the claim was merely a "late claim" (s 73 of the Act).
The defendant's prejudice argument
The prejudice relied upon is not merely the presumptive prejudice which a defendant may suffer (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541), but actual prejudice, arising from the difficulty of defending a claim where the circumstances of the accident, if investigated within the six month period prior to the accident, would have led to the identification of one or more of the many witnesses, who could have said if the accident had been a motor vehicle accident, or if the plaintiff had merely fallen and tripped for some other reason.
The plaintiff claims the accident on Thursday 26 November 2007 at 6.00pm occurred when she was walking across the pedestrian crossing on Liverpool Street, between Nithsdale Street and Commonwealth Street, in accordance with a green "walk" signal. She proceeded across the first and second lanes of traffic. As she was proceeding into the third lane, with cars banked up in both lines of traffic, a white van suddenly drove from its stationary position into the pedestrian crossing, even though the traffic light was red, and there were other pedestrians in the crossing. As the van was about to hit the plaintiff, she jumped backwards and "felt I think the van hit my foot which caused injury and I also sustained injury in the fall" (claim form dated 3 December 2009 received by the nominal defendant on 10 March 2010; annexure B to the affidavit of Anne-Maree Williams, Exhibit A). According to the plaintiff, this van then simply "drove off".
There were many other pedestrians and people on the sidewalk, as well as cars stopped in the three lanes on both sides of the pedestrian crossing. This was a late night shopping night, a month before Christmas. The diagram the plaintiff drew, attached to the claim form of 3 December 2009, paints a vivid picture. She said in her evidence that the crossing was blocked by about 15 minutes after her injury, and other pedestrians waited with her in the street, on the crossing, until an ambulance came.
The notation made for the St Vincent's Hospital Emergency Triage record (annexure R to Exhibit A) makes the following notation:
"crossing road, tripped over landing on ankle, when assisted by CDA a "snap" sound was heard. No head injuries sustained [details of medical observations]"
This entry is consistent with the ambulance record (G132756) which said the plaintiff "states she was crossing street when she tripped and fell onto lateral aspect of (L) ankle".
Neither of these accounts mention any vehicle being involved. The fall is described in more detail in the hospital progress notes which state:
"at approx 18.45 today, fell while crossing road
standing height
simple trip while rushing to avoid an oncoming car
denies being hit by car
landed on hands and buttock"
The orthopaedic physiotherapy discharge summary of 13 December 2007 simply noted that she "tripped and fell from shoulder height while crossing road".
A report from St Vincent's Hospital by Dr Elder to the plaintiff's general practitioner (dated 2 June 2008), which is part of Exhibit A describes the plaintiff's injury as follows:
"As you would be aware, she fractured her left tibia and fibula in November 2007 in a motor vehicle accident. This required internal fixation. It is difficult to be sure from the history how severe the injury was, but it may have been a high trauma fracture."
Dr Elder goes on to say he will carry out further investigations.
The medical certificate prepared for the purpose of the lodgement of the claim signed by the plaintiff on 3 December 2009 describes the plaintiff as having consulted her general practitioner in relation to a motor vehicle accident when she was crossing the road at a pedestrian crossing and was "hit by a van". This was the first reference I could find to "van" in a medical report, and it was prepared for the purpose of the lodging of this claim.
The plaintiff's general practitioner, in a report dated 24 February 2010, provides information of a very different kind:
"Ama stated that she has not much memory of the accident. She was walking along a median strip when a car hit her and then she remembers being in hospital."
According to Dr Giblin (10 March 2010) the plaintiff was "struck by a van" (Exhibit 2) and according to Dr Chandra (27 April 2010) she was "hit by a motor vehicle".
Counsel for the plaintiff submitted that any chance of someone making a note of the van's registration number was lost in the minutes or hours after the van drove away. It would not have been possible to locate a person within weeks, let alone six months who was able to note down the registration number of the van.
However, counsel for the defendant submits that the question was whether there was a van at all, and if so, whether the plaintiff had been crossing the road in the manner she described, was standing on a median strip or simply fallen for some unrelated reason, is simply not being able to be investigated. The fact that none of the persons who remained with the plaintiff left their phone number or other details as witnesses is, the defendant submits, arguably evidence that, in the eyes of whose persons who remained with the plaintiff until the ambulance came, there was no other party responsible for the plaintiff's fall.
The hospital progress notes make it clear that the plaintiff referred to a "car" on the night in question. The question of what role this "car", or a van, played in the accident, and whether or not it was the plaintiff's fault, is a matter which the defendant will have difficulty establishing more than 3 years after the accident.
The circumstances in which a busy city intersection was blocked for 15 minutes at peak hour while an ambulance came to the scene is an event which would have remained memorable for some time. The likelihood of finding persons who saw the accident and who can say whether or not there was a van and, if so, what the van did, is most unlikely after such a long delay. Attempts in 2010 by the plaintiff to locate any witnesses to the accident have been fruitless.
What amounts to a fair trial in all the circumstances?
The plaintiff referred to Commonwealth v Smith [2005] NSWCA 478 where the court noted that, for a trial to be fair, it need not be perfect or ideal (citing Holt v Wynter (2000) 49 NSWLR 128). The judge at first instance in Commonwealth v Smith had rejected claims that there were five categories of evidence where prejudice would occur. These related principally to the plaintiff's claims of injury and disability and his work history. The circumstances of the accident, which arose from a collision between the HMAS Melbourne and the HMAS Voyager on 16 February 1964, were very well known.
The factual situation here is very different, in that the question is whether there was an accident involving a motor vehicle at all, and whether the motor vehicle was in any way at fault. No submissions were made concerning prejudice in relation to investigation of the plaintiff's medical condition. The case of Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 is of more assistance, because the central factual problem was whether the events in question occurred at all. However, the reasons for the granting of leave included the trial judge taking a sceptical view of the prejudice by reason of there having been quite extensive investigations by the appellant (at [33]).
The likelihood of witnesses coming forward after such a lengthy period of time is agreed by both parties to be very low indeed. The plaintiff has placed advertisements in newspapers without any result.
An additional complicating factor is the very poor recollection the plaintiff herself has of the accident. Her general practitioner noted on 24 February 2010 that she had "not much memory of the accident" and that it occurred on a median strip. A considerable portion of the explanation for delay, after she first saw the solicitors on 3 December 2009, was that she was uncertain of the street in which the accident occurred. She was similarly vague in her responses to questions in cross-examination concerning her prior history, the accident and her knowledge of her rights; her explanation was that she was upset and depressed after the accident.
In Nominal Defendant v Harris (2011) 57 MVR 492 at [33] the Nominal Defendant unsuccessfully appealed the granting of an extension of time pursuant to s 109 by Sidis DCJ. The plaintiff, very late at night and in the absence of any witnesses, had suffered very severe injuries, including a head injury, which police considered (at [10]) were most probably caused by a vehicle.
In considering the issue of prejudice, Sidis DCJ (Harris v Nominal Defendant [2009] NSWDC 372 at [97]) noted the difficulty of proof where there was little independent evidence, beyond the nature of the plaintiff's injuries, to support the plaintiff. There were two main problems. First, there was the problem of determining the circumstances of the accident. Second, there was the problem of determining whether a motor vehicle had in fact been involved, and whether the respondent's injuries had been caused by a collision with a motor vehicle. The police had been notified of the accident promptly, and had obtained CCTV footage and interviewed about 20 witnesses without success. The Nominal Defendant was also informed of the accident, and had made its own inquiries at the time. What persuaded Sidis DCJ was that nature of the plaintiff's "very severe injuries, and his consistent assertion that he was struck by a motor vehicle as the cause of his injuries" (at [116]) warranted an extension of time.
Neither of those factors is present here. The plaintiff's accident could just as easily have happened without any vehicle being present, particularly if she was walking along the median strip as described by her general practitioner in 2010. The plaintiff's description of her injuries at the time, many of which do not refer to any vehicle, and at best to a "car", her poor recollection of events and inconsistent accounts about whether the car/van actually hit her, or ran over her foot, mean that there has been no consistent assertion of being struck or otherwise injured by a vehicle.
Cases such as these turn on their own facts. In the present case, the contemporaneous notes vary as to whether she was hit by a car or a van, whether she was hit by a vehicle at all or simply endeavouring to avoid it, whether she was on the median strip or not and the precise street address where she was injured. Most, if not all, possibility of any corroboration from any witness, either for the plaintiff or defendant has been lost. The prejudice is such as to make a fair trial of these proceedings, not only from the defendant's point of view, but perhaps even from the plaintiff's point of view as well, a matter for concern.
In arriving at this view, I have been careful to approach the question of the prejudice caused to the plaintiff by reason of the loss of her cause of action in the manner advised by the Court of Appeal in Nominal Defendant v Harris. Although there were clearly many witnesses to the accident at the time who could have described, if not the registration number of the vehicle, at least the mechanics of the accident, they are unavailable due to the lapse of time. It is now too late for the defendant to establish not only absence of liability, but also any claim for contributory negligence. The prejudice caused by the delay goes to all aspects of the defendant's case except quantum, where no complaint is made.
Conclusions concerning the plaintiff's application
I am satisfied that actual prejudice has been established. The application by the plaintiff to seek leave to commence proceedings is dismissed.
The defendant's application for dismissal
Notwithstanding these findings, I now consider the application by the defendant in its notice of motion for these proceedings to be dismissed by reason of the failure of the plaintiff to provide a full and satisfactory explanation of the delay in making the claim.
The statutory context of the application
The relevant provisions of the Act in relation to this accident are as follows:
(a) s 70 - the requirement to report to police;
(b) s 72 - the requirement to make a claim within 6 months after the date of the accident (i.e. 6 months after 26 November 2007);
(c) s 73 - the provision for a claim to be made more than 6 months after the relevant date ("a late claim") if the claimant provides a full and satisfactory explanation of the delay having regard to the provisions of s 66(2).
These provisions are retrospective in nature. The requirement to report the accident to the police was not a legislative provision at the time.
The chronology of events
The relevant dates are:
(a) 26 May 2008 - Expiry of 6 month period for bringing the claim;
(b) "some time in late 2009" (plaintiff's statutory declaration of 2 December 2010) - The plaintiff becomes aware that she may be entitled to make a claim following discussions with the godfather of her daughter, a man named Andrew;
(c) 3 December 2009 - The plaintiff attends the offices of PK Simpson & Co and fills out a claim form; a medical certificate is obtained from the plaintiff's general practitioner on the following day;
(d) 14 January 2010 - PK Simpson & Co writes to the NSW Police for a copy of any police report (no reply until 16 February 2010). A report was made to the police on 2 February 2010;
(e) 16 and 25 February 2010 - PK Simpson & Co writes to the plaintiff saying they have been unable to contact her by telephone and asking her to contact them urgently to provide further information;
(f) 4 March 2010 - Plaintiff attends the offices of PK Simpson & Co and goes with the plaintiff to check the accident location;
(g) 10 March 2010 - Date the claim form was received by the insurer;
(h) 16 March 2010 - Rejection of the claim by the defendant and a request for a full and satisfactory explanation for the delay;
(i) 18 March 2010 - The plaintiff's solicitors sent copies of newspaper advertisements published on 11 and 18 March as well as a third newspaper publication on 19 March (sent 23 March);
(j) 3, 26 and 27 May 2010 - Correspondence from the defendant to the plaintiff concerning the asserted absence of a full and satisfactory explanation and inadequacy of the due search and inquiry;
(k) 31 May 2010 - The certificate is issued, and this is the commencement of the two month period for lodgement of the statement of claim.
My task is to determine whether or not the plaintiff has a full and satisfactory explanation for the delay in the making of the claim. The defendant submits that the explanation is neither full nor satisfactory.
The plaintiff's history
The plaintiff was born in Ghana. Whilst in Ghana she worked as a high school teacher, a job she also held while living in Nigeria. She is fluent in English, which is her native language.
The plaintiff arrived in Australia in 1989 or 1990 with her partner. They had two children, a daughter who is currently enrolled at university, and a son currently in high school.
The plaintiff's partner had a motor vehicle accident, according to Dr Tsipilis, in the year 2000. Dr Tsipilis states that he stayed home for two years then, after he received a compensation lump sum, he returned to Ghana, leaving the plaintiff with the two children with no money. The plaintiff was employed in essentially manual or clerical work. She came to Australia with a working visa which became void, but in 2005 her application for refugee status was granted and she is now legally an Australian citizen and able to work. She had not, however, worked for one or more years prior to the accident.
On the day of the accident, she had been to a job interview. She was returning home. It was peak hour. There were many cars on the road and there were many people in the street. She set out to cross Liverpool Street in accordance with the green light. Other pedestrians were crossing with her. The car came straight at her. She jumped out of the way but tripped and fell. She was asked "Was there a car?" to which she answered "Yes". Some of the other pedestrians waited with her in the crossing during the time it took for the ambulance to arrive. She cannot remember much else concerning the accident.
The impact upon the plaintiff of the accident was considerable. She underwent an operation about one week after the accident and remained in hospital until 13 December 2007. After her discharge she went to Braeside Hospital for rehabilitation where she remained until 21 December 2007. Thereafter she was on crutches for about three months and used a walking stick for a further six weeks. She has been unable to work since the accident. She cannot now stand or walk for any length of time and, although she commenced a two year TAFE course in fashion and dress making, which she was due to complete in 2011, as well as working as an interpreter, she has been unable to find a suitable permanent employment. She says in her affidavit that she suffers from pain and restriction due to her injuries on a day to day basis and that for the first 12 months after the accident she was very incapacitated.
The plaintiff's explanation for delay
The plaintiff's explanation in the statutory declaration, which is annexure A to the affidavit of Michelle Cheong, is:
"26. I had no understanding about my rights to make a third party claim. As far as I am aware there is no such similar scheme in Ghana and I had never had the experience of being injured in a car accident before. I had no knowledge of the green slip third party scheme in New South Wales and was completely unaware that I could make a claim for personal injury."
According to this affidavit, it was some time in late 2009 that she had a discussion with a friend named Andrew, who suggested that she should see a solicitor about the accident "because he thought I may be able to make a claim". The plaintiff was worried because she did not have the details of the vehicle at fault and did not know how to get them. Andrew made an appointment for her with PK Simpson & Co on 27 November 2009 and she attended that appointment on 3 December 2009, when she filled out the claim form. The plaintiff goes on to say:
"It was at this conference that I was first made aware of my rights under the Motor Accidents Compensation Act 1999 and also the first time I was made aware that there were time limitations that applied to the making of third party claims in New South Wales. Prior to this conference I was completely unaware of my rights and obligations."
In a further statutory declaration (annexure B), the plaintiff sets out that she was involved in two very minor motor vehicle accidents in late November 1995 and 8 June 2004. She consulted her general practitioner about the second accident, but never made a claim.
I can accept that, to a lay person, the fact that she had no information about the vehicle she had either been struck by, or had jumped out of the path to avoid, may be seen as something very different to a collision with a vehicle which can be identified.
The plaintiff said she knew nothing about solicitors and was unaware that solicitors would give her advice, including advice on a no fee basis. I note that evidence to this effect was regarded as "inherently improbable" in Tan v Basaga [2010] NSWSC 1143 at [23]. The question is whether or not evidence of this kind undermines the credibility of the plaintiff's central contention that it simply did not occur to her, before being advised of her rights by her friend, Andrew, that she could bring a third party motor accident claim notwithstanding the fact that she had no information about the vehicle involved. I accept the plaintiff's explanation in this regard.
The plaintiff was also aware that her former partner had suffered a motor vehicle accident. However, she said that he had suffered this accident while on the way to work, and that she had thought he had been able to recover money because he was on the way to work. She said her partner did not discuss the circumstances of this claim with her at all. It would appear from Dr Tsipilis' notes that the plaintiff's partner was at home for about two years before he received a settlement sum. Once again, I accept that to a reasonable person in the plaintiff's circumstances, this is not likely to cause her to consider bringing a claim where she did not know who to sue.
The plaintiff's explanation of delay up until seeing a solicitor is the first period for which an explanation is provided. That explanation changes for the period 3 December 2009 to 8 March 2010. Explanation for this period revolves around the circumstances in which the plaintiff filled out the 3 December 2009 form giving an address in Elizabeth Street, not Liverpool Street, as the accident site, the impact of the Christmas holiday season, and some problems that the solicitors retained by the plaintiff had in contacting her. It is considered in more detail below.
I shall now consider the principles relevant to the provision of a full and satisfactory explanation, and then apply these principles to these two periods of delay.
The principles to be applied - the fullness and satisfactoriness of the explanation
I shall first detail with the concept of "full". In Mancini v Thompson [2002] NSWCA 38, Rolfe AJA at [46] explained this as follows:
"[46] ... What was required was a full explanation for delay and, in order for the explanation to be full, it had to include "the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation". In other words, the requirement that the explanation be full focussed upon the period from the date of the accident until the date of providing it, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant". The purpose of this is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant, therefore, cannot "pick and choose" the information to be given relevant to the delay and which the Court has to decide is "satisfactory"."
In Laidlaw v Touma [2002] NSWCA 190 at [19] Stein JA explained the meaning of the word "full" as follows:
"[19] The word 'full' must be given some meaning and content. In its context in the Act, I think that it means complete - that is, that a complete explanation is required. This full explanation is of course necessary before one turns to consider whether it is a satisfactory explanation. Here, perhaps because the appellant's solicitors considered that delay had been explained to Judge Cooper, absolutely no explanation was given for the relevant delay. The affidavit of the opponent said nothing about it. The affidavit of the solicitor merely recited events and exhibited reports. The last event was Mr Taylor's report of 17 April 2001. Counsel for the opponent, Mr Colquhoun, submits that the court should somehow fill in the gaps and accept that matters were being attended to during the relevant period, such as consideration of the medical reports and taking instructions. If this be the case, it would have been simple to provide the explanation by evidence. At the hearing before Naughton DCJ, counsel for the defendant put the whole of the delay (from 9 January 1999 when the primary limitation period expired) in issue. The onus with respect to the full and satisfactory explanation for the delay lay with the opponent. Little or no effort was made to discharge it. Without any explanation for the delay between April 2000 and January 2001, the court was not in a position to consider whether the explanation was a full and satisfactory one."
The explanation must cover the whole of the period of the delay: Russo v Aiello (2003) 215 CLR 643; Walker v Howard (2009) 78 NSWLR 161.
The explanation in order to be "full" needs to set out fully the conduct including "the actions, knowledge and belief of the claimant". The explanation must be detailed (Ellis v Reko Pty Ltd [2010] NSWCA 319 at [19]-[22]). The focus of the procedure is to justify rather than excuse the conduct.
However, the conduct in question needs to be seen in context. This means that the conduct in question is not confined to the claimant's own position or knowledge. For example in Diaz v Truong [2002] NSWCA 265, the plaintiff was a seriously injured minor and it was necessary for information from others to be provided.
The central problem to be faced in many of these cases is how to explain being unaware of legal entitlements. While this was a straightforward matter where the plaintiff was a child, it is more difficult where the plaintiff is an adult, particularly if that adult has had tertiary education.
The position of a claimant unaware of his or her legal entitlements was considered by the Court of Appeal in Figliuzzi v Yonan [2005] NSWCA 290. The plaintiff in those proceedings wrongly believed she only had a claim under the workers compensation legislation (for a similar case see Tan v Basaga). The Court of Appeal held, by majority, that a "full and satisfactory explanation" for the delay had not been provided. The plaintiff in Figliuzzi v Yonan was a clerk, and a reasonable person in her position, working in a legal environment, should have known, according to Tobias and McColl JJA, about her entitlements at common law as well.
The New South Wales Court of Appeal made similar findings in the matter of Ellis v Reko Pty Ltd, even though the plaintiff was a workman injured in a forklift accident sought leave to bring proceedings out of time. Young JA noted the explanation (at [16]) as amounting to saying that "I'm a workman. I have limited education. I do not know the technicalities of the law. I had an accident. The insurance company knew I had an accident, knew how it happened. Surely that's enough."
This was not enough for Young JA, with whom Beazley JA and Handley AJA agreed. In the present case, there is the additional problem, namely that the defendant did not know, and the plaintiff herself has, according to her doctor, "not much memory of the accident".
This brings me to the question of what amounts to "satisfactory" in the event that the explanation is "full". This is what occurred in Tan v Basaga, where the plaintiff provided information which the insurer acknowledged was full, but where satisfactoriness was challenged.
The plaintiff in Tan v Basaga, a medical practitioner who graduated from Sydney University with degrees in science and medicine, was not considered to fall within the same category as the appellant in Figliuzzi v Yonan. The checklist in relation to Dr Tan is of some assistance. These factors included:
(a) He was raised in a culture (Singapore) which did not observe litigiousness to any significant degree;
(b) He was working extremely long hours prior to the accident;
(c) He was initially optimistic as to the prospects of making a good recovery;
(d) During this period no one told him and it did not cross his mind that he might have a cause of action against the driver of the other car;
(e) He was so focussed on making a good recovery and earning a good income that, whether or not he heard or saw advertisements for legal services, he did not consider seeking advice;
(f) It was not until early 2007, two years after the accident, that he became concerned as to whether he would in fact make a good recovery;
(g) It was not until he heard an advertisement for Brydens that he considered he might have a claim; and
(h) That, upon turning his mind to those matters, he acted promptly.
McCallum J found (at [34]) that the delay experienced by the plaintiff was a combination of his ignorance of the existence of a cause of action and the fact that his attention was focussed on recovering his health and pursuing his professional goals.
In accepting the plaintiff's explanation, McCallum J considered that while the plaintiff was well-educated, he was relatively naïve. He had worked extremely long hours (both before and after the accident) and a reasonable person in that position could fail to turn his or her own mind to possible legal claims. I also note that the plaintiff had been driving to work when he had the accident, that he had been advised by his employer to lodge a workplace compensation claim, and that he did so. Furthermore, he acted promptly as soon as he was aware of his entitlement to sue.
The plaintiff places considerable weight upon the decision of Tan v Basaga. However, questions of what amounts to "satisfactory", as with "full", tend to turn on their facts. In Diaz v Truong, where the plaintiff was a nine year old girl with brain damage, that level would have been a relatively low one (see Diaz v Truong at [92] per Hodgson JA). Similarly, in Walker v Howard, Allsop P considered a plaintiff who had suffered brain damage and was mentally impaired was in a different position to that of a mentally alert adult:
"[97] As I have already said in discussing the text of these provisions, the "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are."
Young JA at [137]-[138] commented:
"[137] The basic problem with the second part of the MAC Act's requirement is what is meant by the position of the claimant. Does it mean that the hypothetical person must possess every characteristic of the claimant including the claimant's wealth or poverty, the assistance or non-assistance of friends and relatives, does it mean that all of what one might call the individualistic characteristics of a claimant must be ignored or does the court take account of some though not all of such characteristics?
[138] There would seem little argument that in this sense the physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. I consider that the cultural background of the claimant, at least within limits, is also transferred across. However, the difficulty I have is how far one transfers the circumstantial attributes. By "circumstantial attributes" I mean the fact at one end of the scale that the claimant is a minor aged 17 years who is a millionaire with the availability of both family and professional assistance and at the other end, a person who does not speak English, who is poor and friendless."
In addition, where part of the delay occurs, as is the case here, after a solicitor has been retained, what view should the court take?
In Smith v Grant (2006) 67 NSWLR 735 at [32], Basten JA explained:
"[32] This submission appeared to assume, perhaps unnecessarily, that the court would be required to make a judgment as to the solicitor's conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the "conduct, including the actions, knowledge and belief of the claimant", and not that of her solicitor. Nor should the two limbs of the definition contained in s 66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether "a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay". That would appear to view the matter from the position of the claimant, and not the claimant's solicitor. Accordingly, what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation."
The plaintiff's explanation that in Ghana there is no equivalent scheme and she was not aware of her rights to bring proceedings is understandable, in circumstances where the existence of a nominal defendant is a concept which may not be readily understood by many people in Australia, including persons who have lived here all their lives. Even though the plaintiff paid comprehensive insurance and observed her husband making a claim, it is understandable that she would not have been aware of a body set up to deal with claims where the identity of the vehicle in question was unknown was in existence, and that she could make a claim to this body.
I am satisfied that for the period up until the plaintiff consulted lawyers on 3 December 2009, the explanation is full and satisfactory. However, the explanation must cover the whole of the period, which means an explanation is required for the three month period from 3 December 2009 to 8 March 2010. While three months may not seem like a long period, it is nonetheless half of the six month period that a person is intending to make a claim is given. It is not a period of delay which should be regarded as of little importance, particularly as the plaintiff now knew her claim was late.
The plaintiff's understanding as to her entitlement to claim was effectively resolved when she saw lawyers on 3 December 2009 and was told of her entitlements. She was told that she would need to bring a late claim and she would need to do it promptly. It is at this stage that the plaintiff's explanation ceases to be satisfactory.
The claim form was filled in on 3 December 2009, to all intents and purposes with the correct address for the accident, and a medical certificate obtained on 4 December 2009 from the plaintiff's treating doctor. Why was this not sent straight away? According to the plaintiff's statutory declaration of 2 December 2010 at paragraph 33:
"33. On 3 December 2009 Colin Thompson completed the Personal Injury Claim Form based on my instructions and I then read and signed it. At that time I had noted the accident location as Elizabeth Street but I was unsure of the correct cross streets etc as I had been so dazed and confused after the accident. Colin Thompson provided me with a medical certificate to take to my GP for completion. I attended upon Dr Sidrak the following day and he completed the form. I then sent it back to P K Simpson & Co Solicitors."
However, as Mr Ronzani pointed out in his submissions in reply, the claim form sent to the insurer could not be clearer. It identifies, correctly, the address where these events occurred. Was there an earlier, incorrectly filled-out form? If so, what address was given, and what did the diagram show? In a medical certficate prepared by Dr Chandra, he describes the plaintiff as being "hit by van while crossing Elizabeth Street in the City" (p 2 of the referral form dated 25 January 2010), suggesting Elizabeth Street had been the site nominated to him. If there is another form completed on 3 December 2009 showing another site for the accident, it is not available to me.
Part of the delay is asserted to be the opening of the file and the Christmas period. According to Michelle Cheong's statutory declaration (Tab C to the Exhibit 1), "a file was opened on 21 December 2010 [sic]" (I note this should read 21 December 2009). This is different to the "16 December 2010 [sic - 2009]" date stated by the plaintiff in paragraph 34 of her statutory declaration of 2 December 2010. However, this does not explain why the form was not sent on 5 or 6 December 2009 to the defendant.
The plaintiff's file was not looked at again by her solicitors until on 14 January 2010, when a number of letters were sent including a letter to New South Wales Police "requesting they advise as to whether there was a police report as the Claimant was not certain whether the police attended the scene or not". Unfortunately, neither that letter nor reply of 16 February 2010 has been able to be provided. According to paragraph 8 of the statutory declaration of Ms Cheong, a paralegal (Ms Jennifer Kyneur) reviewed the claim form and diagram and noted there was some confusion as to the site of the accident as "[a]t this time the claim form listed the accident site as Elizabeth Street". This suggests that the diagram drawn by the plaintiff was so obviously wrong that Ms Kyneur drew this to someone's attention. No documents have been produced to explain the nature of this confusion, or how Ms Kyneur worked out that the wrong site for the accident had been given.
These are individually minor matters, but they are compounded by the plaintiff's own delay in responding to her solicitor's request for assistance. According to paragraph 9 of the statutory declaration which is Tab C, Ms Kyneur attempted to contact the plaintiff between 16 and 25 February 2010 "to no avail". According to the statutory declaration, it was after this that the plaintiff was contacted. However a letter was sent to the plaintiff on 16 February 2010 stating:
"We refer to your above matter and note that we have been trying to get in contact with you by telephone to no avail.
We need to get some further information from you in order to lodge your claim. Can you please contact Jennifer at our office on [phone number] as a matter of urgency." (Exhibit 4)
This suggests that there had been unsuccessful attempts to get in touch with the plaintiff before 16 February 2010.
Another letter was sent on 25 February 2010 (Exhibit 4) making an appointment for the plaintiff. It would appear that the plaintiff did not get in touch with the solicitors until 1 March 2010. The appointment of 4 March 2010 had already been made in the 25 February letter, without prior consultation.
The plaintiff's explanation for this delay was firstly that she was very depressed by her injuries, and secondly that she thought all was well and she could leave matters in the hands of her solicitors.
The plaintiff's solicitors were making efforts to contact her by phone and letter for almost a month. A reasonable person in the plaintiff's shoes would have known that this was likely to be important. She knew she had already delayed in bringing the claim. I find the plaintiff's explanation for this delay unsatisfactory.
According to the plaintiff's statutory declaration of 6 August 2010, she was told on 4 March 2010 that further information was required as to the accident location. She went with Ms Kyneur to the accident scene and the correct accident location was noted and clarified on the claim form. However, a new certificate by the solicitor for whatever date the revised claim form was completed was not prepared. The 3 December 2009 accident form was simply reattached, as was the 4 December medical certificate.
If the claim form was re-written after being filled out on 3 December 2009, it would have to have been a substantial re-writing. The site of the accident on page 1 and the diagram of the accident as well as the words underneath all referred to Liverpool Street and not to Elizabeth Street. If the plaintiff is correct, and the wrong address was given, what address was given to the police in the letter of 14 January 2010? What was their reply? The New South Wales Police report event number 40673433, which should be annexure B to the statutory declaration of Ms Cheong of 15 October 2010 is not attached.
Individually each of these matters is insufficient to amount to a full explanation, or a satisfactory one. The overall picture that is painted by this history of omissions and delays is, however, a different matter.
Conclusions concerning the fullness and satisfactoriness of the plaintiff's explanation
The plaintiff's explanation for her delay in bringing a claim is, for the period up until she consulted solicitors on 3 December 2009, full and satisfactory. A reasonable person in the position of the plaintiff would, for the same reasons as those explained by McCallum J in Tan v Basaga at [34] (see also Walker v Howard at [141]), have been justified in experiencing the same delay. The plaintiff's delay was due to her ignorance of the Nominal Defendant.
The problem is, however, that whereas the plaintiff in Tan v Basaga acted promptly (Tan v Basaga at [33]), the plaintiff in these proceedings did not. The reasons for delay are claimed to be that the plaintiff made mistakes about where the accident happened and then failed to contact her solicitors for a period of some weeks. The documentary evidence in support of these claims is neither full nor satisfactory. A reasonable person in the position of the plaintiff would not have delayed providing vital information in this fashion for such a considerable period.
Accordingly, I am not satisfied that the plaintiff has provided a full and satisfactory explanation for the whole of the period of delay, in that the explanation for the period 3 December 2009 to 8 March 2010 is neither full nor satisfactory.
Conclusions concerning the defendant's application
The defendant's application to dismiss these proceedings on the basis of the plaintiff's failure to provide a full and satisfactory explanation for delaying in commencing proceedings is granted.
Orders
(1) Plaintiff's application for leave to commence proceedings pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) refused.
(2) Defendant's application for these proceedings to be dismissed for failure to provide a full and satisfactory explanation (ss 72 and 73 Motor Accidents Compensation Act 1999 (NSW)) granted.
(3) Plaintiff to pay defendant's costs.
(4) Liberty to apply in relation to costs.
(5) Exhibits retained for 28 days.
******
Decision last updated: 16 April 2012
16
1