Atikullah v Sefton

[2001] NSWCA 385

Reported Decision: 53 NSWLR 574

New South Wales

Court of Appeal

CITATION:	ATIKULLAH V. SEFTON [2001] NSWCA 385
FILE NUMBER(S):	CA 40649/00
HEARING DATE(S):	10 October 2001
JUDGMENT DATE:	5 November 2001
PARTIES :	Mohammed Atikullah - appellant Jo-Anne Sefton - Respondent
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Ipp AJA at 69

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 470/00
LOWER COURT JUDICIAL OFFICER :	Rolfe DCJ

COUNSEL:	Mr. J.D. Hislop QC with Mr. G.J. Bateman - appellant Mr. L. King SC with Mr. R.I. Goodridge - respondent
SOLICITORS:	Henry Davis York - appellant Firths - respondent
CATCHWORDS:	TORTS - Negligence - Motor accident - Requirements of Motor Accidents Act for co-operation before proceedings, provision of details, and time limits - Failure to give details of Griffiths v. Kerkemeyer claim - Whether proceedings could continue without such claim. D.
LEGISLATION CITED:	Motor Accidents Act 1988, ss.40, 48, 50A, 52.
CASES CITED:	Hill v. Bolt (1992) 28 NSWLR 329 Serhan v. Serhan, Court of Appeal, 5/8/96 Osman v. Singh, Court of Appeal, 20/10/96 Dandashli v. Dandashli, Court of Appeal, 16/12/96
DECISION:	See par.68 of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

C A 40649/00
DC 470/00

SHELLER JA

HODGSON JA

IPP AJA

Monday 5th November 2001


ATIKULLAH V. SEFTON

Judgment

: I agree with the judgment of Hodgson JA as set out below.

On 4th August 2000, Rolfe DCJ dismissed a Notice of Motion brought by the appellant Mohammed Atikullah, in which the appellant sought orders that proceedings commenced by the respondent Jo-Anne Sefton against the appellant be dismissed by reason of the respondent’s alleged failure to comply with the provisions of ss.48(3), 50A and 52(4) of the Motor Accidents Act 1988 (“the Act”). Apparently because of that decision, Rolfe DCJ did not deal with a Notice of Motion brought by the respondent and heard at the same time, by which the respondent sought leave to commence proceedings out of time pursuant to s.52(4) of the Act.

3 On 19th March 2001, leave was granted to the appellant to appeal from the dismissal of its Notice of Motion, and we are now dealing with that appeal.

BRIEF HISTORY

4 The respondent sustained injuries in a motor vehicle accident at South Coogee, New South Wales, on 29th November 1996.

5 On 21st January 1997 the respondent, through her solicitors, served a claim under s.43 of the Act on the appellant’s insurer, and on 24th February 1997, she provided particulars purportedly pursuant to s.50A of the Act.

6 On 30th June 1997, the appellant’s insurer wrote to the respondent’s solicitors requesting further and better particulars, including the following:

11. Full details of your client's claim for household services:
a) names and addresses of the person or agency providing these services;
b) nature of the duties performed;
c) details of any wages paid/or to be paid;
d) relationship of the injured person (if any);
e) are these services essential for the maintenance and presentation of the household;
f) was the injured person providing these services prior to the accident;
g) time since DOA these services were provided;
h) names and ages of all members of the household and details of household services required;
i) original receipts or accounts;

7 This letter was answered on 7th July 1997. The answer to question 11 was “Nil claim is made”.

8 The respondent’s solicitors provided further material concerning the respondent’s claim by letters to the appellant’s insurer dated 14th July 1997, 21st July 1997, 7th August 1997 and 13th December 1997, the last of these enclosing some medical reports.

9 On 6th November 1997, the appellant’s insurer wrote to the respondent’s solicitors a letter headed “Without Prejudice”, making the following admissions:

Please be advised that, for the purpose of the Motor Accidents Act, 1988 (as amended), we admit a breach of duty of care by our insured in relation to the circumstances of the accident.

This admission is purely for the purposes of the Motor Accidents Act and does not in any way constitute an admission of liability for matters which may not be the subject of a claim under that Act, nor does it constitute an admission by the owner or driver of the above mentioned vehicle.

10 On 12th November 1997, the respondent’s solicitor wrote to the insurer enclosing medical accounts for payment or reimbursement; and it appears that such accounts were paid, and that further medical accounts submitted by the respondent’s solicitor to the insurer were also paid.

11 On 26th March 1999, the appellant’s insurer wrote to the respondent’s solicitors enclosing a report by Dr. Parkington dated 2nd February 1999, and making an offer of settlement of $3,700.00, including $2,000.00 costs. The letter also requested advice of “all treatment providers that your client has attended”. The offer of settlement was rejected by letter from the respondent’s solicitors dated 6th April 1999, and the request for treatment providers was answered on 5th May 1999.

12 On 20th May 1999, a without prejudice offer of settlement was made to the insurer by the respondent’s solicitors, in the sum of $90,000.00 plus s.45 payments, Medicare incurred to date, and costs assessed at $3,500.00. In August 1999, the respondent’s solicitors wrote to the insurers requesting copies of medical reports in their possession, which were provided under cover of a letter dated 29th September 1999. It appears that these reports were re-served on the insurer under cover of a letter of 30th September 1999.

13 On 18th October 1999, the respondent’s solicitor had a telephone conference with the respondent (who lives in Queensland) and received instructions that the respondent’s mother was providing domestic services on a voluntary basis. The solicitor then appreciated that the respondent’s claim could be larger than previously thought, and in consequence he wrote to the insurers on 21st October 1999 withdrawing the offer of settlement. On the same day, he sent a letter with further information concerning the respondent’s claim for economic loss, including the following paragraph:

At the time she left the Council she was earning $425.00 net per week but it will be alleged that in the private sector she would have been able to earn somewhere between $500.00 and $600.00 net per week with skills and experience she gained over ten years with the Council.

This was a modification of particulars previously given in relation to economic loss.

14 On 26th October 1999, the respondent’s solicitor sent the insurer a resumé of the respondent and some references, in further support of her claim for economic loss.

15 On 6th January 2000, the respondent’s solicitors wrote giving advice concerning the medical treatment of the respondent, and also noting that the last date for the commencement of Court proceedings was 21st January 2000, and inviting an offer of settlement. The insurer responded to this letter, claiming that the respondent was now out of time for commencing proceedings.

16 The proceedings were commenced on 27th January 2000. The Statement of Claim included a claim based on Griffiths v. Kerkemeyer, quantified at $288.00 per week from the date of the accident to the present, and continuing.

17 The appellant’s Notice of Motion was filed on 10th May 2000. It was supported by an affidavit by the appellant’s solicitor, annexing documents and asserting the following grounds for the orders sought:

12. I am instructed to submit that these proceedings were issued in breach of sections 48(3), 5OA and 52(4) of the Act. Since commencement of proceedings the plaintiff has particularised heads of damage not previously particularised to the defendant. The plaintiff did not commence proceedings within 3 years of the date of her accident.

18 The respondent’s Notice of Motion was filed on 28th July 2000. It was supported by two affidavits by the respondent’s solicitor. The explanation concerning the failure to give particulars of the Griffiths v. Kerkemeyer claim prior to the filing of the Statement of Claim was as follows:

11. On I July 1997 I received the request for particulars from Commercial Union dated 30 June 1997 which is annexure "C" to the said Affidavit. At my request my employed solicitor Jane Hing rang the plaintiff on 7 July 1997 and took instructions from her to enable a reply to be made. A copy of her reply to that request is annexure "D" to the said Affidavit.

12. I have discussed the matter with Ms Hing and in particular her reply to paragraph 11. I am informed by Ms Hing and verily believe that she cannot now be certain of what was in her mind on 7 July 1997 when she spoke to the plaintiff about that particular request for particulars. However Ms Hing concedes that it is possible that she took the request as being a reference to paid commercial household services rather than voluntary domestic services provided by household members.

13. I have also discussed this particular with the plaintiff herself. I am informed by the plaintiff and verily believe that she understood the request to be in connection with external commercial paid nursing care. As the plaintiff has never had any such care she instructed Ms Hing that no claim was made and hence that answer was given to Commercial Union.

14. I am informed by the plaintiff and verily believe that it was not until much later when she spoke to me that she became aware that she could claim as part of her case the value of the services which had been provided to her on a voluntary basis by her mother.

15. In that regard I am informed by the plaintiff and verily believe that at the time of the accident she was residing in Sydney and had indeed been so for several years. However, shortly following the accident within a week or so she returned to Queensland where she has lived with her parents ever since. I am informed by the plaintiff and verily believe that the plaintiff's mother has provided domestic assistance to the plaintiff in her own home ever since. This is the claim which is made in the Statement of Claim and Statement of Particulars.



45. On 18 October 1999 my secretary arranged a special telephone conference with the plaintiff as it had proven extremely difficult to arrange a personal conference. This was my first opportunity to discuss the matter at length with the plaintiff but even then was only over the phone.

46. It was on that occasion that I took instructions from the plaintiff that her mother provided a wide variety of domestic services to her on a voluntary basis. I am informed by the plaintiff and verily believe that prior to that date she did not realise that she could claim for the value of those services in this case.

STATUTORY PROVISIONS

19 The relevant statutory provisions are in Part 5 of the Motor Accidents Act, relating to claims in respect of motor vehicle accident and court proceedings to enforce such claims.

20 Section 48 deals with the duty of the claimant to co-operate with the person against whom the claim is made, and is in the following terms:

48(1) The object of this section is to maximise communication between the parties so that sound and timely information is available and disputes are minimised.
(1A) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person's insurer for the purpose of giving the person and the insurer sufficient information:
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement.
(2) In particular, the claimant must comply with any reasonable request by the other party or the other party's insurer:
(a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(2A) The reasonableness of a request may be assessed having regard to criteria including the following:
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.
(3) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.

21 Section 50A deals with the provision of information to facilitate the settlement of claims before commencement of court proceedings; and is in the following terms:

50A Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of:
(a) the injuries sustained by the claimant in the motor accident, and
(b) all disabilities and impairments arising from those injuries, and
(c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages.

22 Section 52 imposes a time limit on the commencement of proceedings, and is in the following terms:

52(1) The objects of this section are:
(a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and
(b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if:
(i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and
(ii) the claim is likely to result in an award of substantial damages,
or in the circumstances described in subsection (4A).
(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until:
(a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person's insurer, or
(b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or
(c) if the other person's insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant's response to the offer is communicated to the other person's insurer,
whichever is the later or latest.
(1B) Subsection (1A) (c) applies only to the first offer made by the other person's insurer and not to any subsequent offer.
(2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs:
(a) the insurer denies all liability in respect of the claim,
(b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,
(c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
(3) (Repealed)
(4) 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.
(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.
(4B) 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 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
(4C) Subsection (4B) (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.

23 In relation to the “full and satisfactory explanation” referred to in s.52(4B), s.40(2) provides as follows:

40(2) In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

DECISION OF PRIMARY JUDGE

24 The contention of the appellant before the primary judge and before us was that the respondent’s proceedings were precluded by s.48(3) and s.50A, because the respondent had not provided particulars of the Griffiths v. Kerkemeyer claim, and had not provided all particulars of disabilities relied on in the Statement of Claim; and that the proceedings were precluded by s.52(4), because they were commenced more than three years after the date of the motor accident.

25 The primary judge held that there was no breach of s.48 in relation to the Griffiths v. Kerkemeyer claim, because the relevant question in the request for particulars was reasonably understood as relating only to paid domestic services. His Honour held that in any event, even if there were a breach, the respondent had shown a reasonable excuse, and a reasonable person in her position would have acted in the way she did.

26 In relation to the other matters in respect of which it was alleged no particulars had been given, the primary judge held that there was no breach of s.48 in relation to these because they were insignificant.

27 As regards s.50A, the primary judge held that the appellant bore an evidentiary burden of showing that the failure to provide particulars meant that the insurer was unable to make a proper assessment of the respondent’s full entitlement to damages, and that evidentiary burden had not been discharged.

28 In relation to s.52(4), the primary judge relied on Pt.24C r.8 of the District Court rules, which provides to the effect that a defendant may not move to strike out or dismiss an action under the Act on the ground that it was commenced outside a relevant time period as prescribed by s.52 unless the defendant so moves within two months after service on the defendant’s insurer of the Statement of Claim in the action. Since the Statement of Claim had been served on 2nd February 2000, and the Notice of Motion filed on 12th May 2000, the defendant was out of time in bringing the motion and the motion accordingly should be dismissed.

APPEAL GROUNDS

29 The appellant relied on the following grounds of appeal:

1. His Honour erred in holding that the respondent could comply with section 40(2) of the Motor Accidents Act and provide a full and satisfactory explanation for non-compliance without giving direct evidence of her actions, knowledge and belief for con-compliance with the Motor Accidents Act.

2. His Honour erred in holding the plaintiff could comply with section 40(2) of the Motor Accidents Act by the opponent's solicitor giving evidence on the opponent's behalf pursuant to the hearsay exception under section 75 of the Evidence Act 1995 (NSW).

3. His Honour erred in holding that there was nothing in section 40(2) of the Motor Accidents Act which prevented the opponent's solicitor from giving evidence on the opponent's behalf as to the opponent's actions, knowledge and belief for non-compliance with section 48(3), section 50A and section 52(4) of the Motor Accidents Act.

4. His Honour should have found that section 40(2) of the Motor Accidents Act requires the opponent as the claimant to give direct evidence of her actions, knowledge and belief in order to provide a full and satisfactory explanation for non compliance with section 48(3), section 50A and section 52(4) of the Motor Accidents Act 1988 .

5. His Honour erred in principle in failing to take into account the lack of any direct evidence by the opponent as to the breaches under section 48(3), section 50A and section 52(4) of the Motor Accidents Act .

6. His Honour erred in holding that the opponent complied with the appellant's request for particulars of the opponent's claim under section 48(3) and section 50A of the Motor Accidents Act.

7. His Honour erred in finding that the failure to provide particulars of domestic assistance, anxiety and depression and loss of superannuation benefits was not a breach of the plaintiff's duty of cooperation under section 48(3) and section 50A of the Motor Accidents Act.

8. His Honour erred in law in the exercise of his discretion in that he failed to take into account the failure of the plaintiff to provide particulars under section 48 and section 50A of the Motor Accidents Act prior to the commencement of the proceedings, of:

(i) difficulty in standing for long periods;
(ii) difficulty in engaging in heavy lifting;
(iii) inability to pursue active sports;
(iv) gross restriction in ability to travel;
(v) gross restriction in capacity to work;
(vi) depression;
(vii) loss of self esteem;
(viii) anxiety;
(ix) loss of enjoyment of life;
(x) dietary problems;
(xi) difficulty sleeping;
(xii) headaches; and
(xiii) inability to provide a wide variety of domestic duties.

9. His Honour wrongly inferred that the letter of 7 June 2000 from the appellant's solicitors complaining of the omission of the Griffith v Kerkemeyer claim was the only omission of the opponent under section 48(3) and 50A of the Motor Accidents Act.

10. His Honour erred in finding that the plaintiff had made a full and satisfactory explanation for non-compliance with section 48(3) and section 50A of the Motor Accidents Act when no explanation was provided for failing to provide particulars listed in paragraph 8.

11. His Honour erred in law in the exercise of his discretion in that he failed to take into account a relevant factor namely, that the opponent was assisted in her reply to particulars by a solicitor. His Honour should have taken this factor into account and found that:
(i) It was unreasonable in the circumstances for the opponent not to have known that she was entitled to claim unpaid domestic assistance.
(ii) It was unreasonable for the opponent having had her solicitor complete the request for particulars of the claim not to have provided particulars of domestic assistance.
(iii) The failure to provide particulars of unpaid domestic assistance and the particulars referred to in paragraph 8 above was not satisfactory compliance with the Motor Accidents Act.
(iv) That contrary to section 40(2) of the Motor Accidents Act it was not reasonable for a person in the position of the opponent to have acted in the way that she did.
(v) The plaintiff being represented by a solicitor would be aware of her entitlement to claim the value of services provided on a voluntary basis by her mother and was obliged to provide those particulars under section 48(3) and section 50A of the Motor Accidents Act .
(vi) The failure to particularise a claim for "depression and anxiety" and "particulars of the claim for loss of superannuation" was insignificant in terms of assessing the claimant's obligations under section 48(3) and section 50A of the Motor Accidents Act .
(vii) The failure to particularise a claim for disabilities in paragraph 8 above.

12. His Honour erred in principle in having concluded that particulars of domestic assistance had not been provided or the further disabilities in paragraph 8 above, in finding the insurer could have made a proper assessment of the opponent's claim and did not discharge the defendant's onus of proof.

13. His Honour failed to have regard to the Court of Appeal decision in Serhan v Serhan (unreported, 5 August 1996).

14. His Honour erred in the excuse of his discretion in failing to have regard to the objects of the Motor Accidents Act and Section 2B thereof.

15. His Honour failed to have regard to the Court of Appeal decision in Osman v Ramendra Singh (unreported decision of 20 October 1996) and find that part 24C rule A did not derogate from or limit the provisions of section 52(4) of the Motor Accidents Act.

16. His Honour should have had regard to the provision of section 52(4) of the Motor Accidents Act and once the breach of section 52(4) was brought to the notice of the Court to dismiss the claim on account of the plaintiffs breach of section 52(4).

17. Substantial legal costs will be incurred and substantial judicial time will be wasted, in the event that the appeal is not granted on this occasion and the appellant is left to appeal the interlocutory decisions of Rolfe DCJ after the District Court proceedings have concluded. If the appellant's appeal is successful at this stage, there will be a substantial saving of legal costs and judicial resources devoted to the matter.

30 The respondent put on the following Notice of Contention:

1. The Appellant's Notice of Grounds of Appeal proceeds on the assumed basis that its Notice of Motion was heard on 28 July 2000 before His Honour Judge Rolfe. This is a misconception. Justice Rolfe struck out and dismissed the Appellant's Notice of Motion. The Court being moved to do so by a Notice of Motion filed by the Respondent also returnable on 28 July 2000.

2. The Respondent further contends that His Honour Rolfe DCJ, for completeness also gave reasons that had he been dealing with the Appellant's Notice of Motion, it would have failed in any event.

3. The Respondent further contends that by reason of Part 24C Rule 8 of the District Court Rules, the Appellant was prohibited from moving to strike out or dismiss the action unless the rules were complied with.

4. The Respondent further contends that the Appellant was advised that it could seek an enlargement of the time under the Court rules, such enlargement of time being at the discretion of the District Court. The Appellant did not seek an enlargement of time and its motion was therefore dismissed.

5. The Respondent further contends that by reason of Section 52(2)(b), the alleged interrelationship between Section 52 and 50A alleged by the Appellant ceased when on 6 November 1997, the Appellant, by letter, made a partial admission of liability in that the Appellant admitted breach of duty of care but denied all injuries. The Plaintiff was dissatisfied with the extent to which liability was admitted.

6. The Respondent further contends that all particulars sought by the Defendant were answered in accordance with the law.

7. The Respondent further contends that there is no utility in the appeal in any event in that Rolfe DCJ at page 7 of his Reasons for Judgment found that in any event, he would have excused any non-compliance by the Plaintiff by finding that the Plaintiff had established that there was reasonable excuse and that the Court was further satisfied that a reasonable person in the position of the Plaintiff would have acted in the way that she did.

8. It is further contended that the Plaintiff was entitled to leave to commence proceedings out of time pursuant to Section 52(4) of the Motor Accidents Act and such leave sought in the alternative by Notice of Motion returnable on 28 July 2000 and such leave it can be inferred would have been granted by Rolfe DCJ if required.

9. It is further contended that the Appellant bore the onus of proof that it was unable to formulate an offer. The Defendant did and ought to have failed to satisfy the relevant burden of proof on the evidence.

10. The Respondent further contends that the Appellant failed to satisfy His Honour Rolfe DCJ that the claimant had "failed without reasonable excuse" to answer the requested particulars. His Honour considered the "reasonableness in the circumstances". This was a matter within his Honour's discretion.

31 At the hearing, Mr. Hislop SC for the appellant did not press grounds 1-5 of the grounds of appeal, those grounds relating to an alleged need for direct evidence. I would note that, in my opinion, those grounds could not have succeeded. In my opinion, the Act does not limit the evidence that may be relied on to prove matters that have to be proved under the Act: those matters may be proved by any evidence that is relevant, admissible and sufficient. Section 75 of the Evidence Act allows hearsay evidence in interlocutory proceedings. There may of course be cases where a judge takes the view that, in relation to explanations to be provided by a claimant, evidence on information and belief by the solicitor might involve a danger of unfair prejudice sufficient to exclude it under s.135 of the Evidence Act, or may in any event consider it of insufficient weight to discharge an onus of proof lying on the claimant. However, there is no reason to generally exclude evidence on information and belief, and no basis on which it could be said that such evidence cannot be sufficient to discharge an onus on a claimant to provide an explanation.

32 Although ground 8 of the grounds of appeal, specifying thirteen other respects in which the particulars given before proceedings were commenced were said to be inadequate, was not withdrawn, Mr. Hislop advanced no particular submissions in relation to this ground. I should say at once that, in my opinion, there is no substance in this ground. The thirteenth of those matters is subsumed in the Griffiths v. Kerkemeyer contention, which was strongly advanced, and to which I will return. The third, fourth and fifth items were specifically included in the particulars given. The first, second, sixth, seventh, eighth and ninth, so long as they are understood as being incidental to the matters of which particulars were given, are also covered by those particulars: it could be otherwise if, for example, the respondent were to seek to make out a claim that she suffered the psychiatric illness of depression, not merely unhappiness caused by her problems otherwise particularised, but there is no suggestion at this stage that that is the case. The remaining three items are, in my opinion, de minimis. In any event, in relation to all these items, understood as I have indicated, there would have been an onus on the insurer to show that alleged deficiencies in particulars meant that they were not sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages, within the meaning of s.50A; and in my opinion, plainly that onus was not discharged. Furthermore, having regard to the terms of the request for particulars and the reply, and having regard to the considerations I have referred to, in my opinion no breach of s.48 is shown in relation to these matters.

33 This leaves essentially the matters that were the subject of debate at the hearing before us, namely the failure to give particulars of the Griffiths v. Kerkemeyer claim prior to the commencement of the proceedings, and the consequences of that having regard to ss.48 and 50A; and the failure to commence proceedings within three years of the accident as contemplated by s.52(4). I will deal in turn with those matters, starting with s.50A.

SECTION 50A
Submissions

34 Mr. Hislop submitted that the respondent was plainly aware of her Griffiths v. Kerkemeyer claim and intended to make that claim by the time she withdrew her offer to the insurer on 21st October 1999. The Griffiths v. Kerkemeyer claim was plainly within s.50A(d), yet no details were given of it prior to the commencement of the proceedings. It was a significant part of the claim as propounded in the Statement of Claim: $288.00 per week in the past amounted to about $45,000.00, and if extended for (say) five years into the future, it would amount to a further $75,000.00. Even if, as suggested by the primary judge, the onus was on the insurer to satisfy the Court that it could not make a proper assessment of the respondent’s full entitlement, within the meaning of s.50A, it was plain that this was so when such an important part of the claim was withheld.

35 Mr. Hislop submitted that the consequence was that the respondent was not entitled to commence the proceedings, and they had to be dismissed: see Hill v. Bolt (1992) 28 NSWLR 329; Serhan v. Serhan, Court of Appeal, 5/8/96. These cases were concerned with s.48(3) rather than s.50A, but both sections contain the same prohibition of commencement of proceedings.

36 Mr. Hislop submitted that the proceedings had to be dismissed altogether, not merely amended to exclude the Griffiths v. Kerkemeyer claim. The words “a claim” in s.50A meant a claim as defined in s.40, namely “a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”. That is, it meant the whole claim, so that the proceedings in respect of the whole claim were prohibited, not just that part of the claim which had not been particularised. This was confirmed by the objects of the Act (see ss.2B, 40A), relevantly to have the whole claim disclosed and if possible settled without the necessity of legal proceedings. Furthermore, that was the result in Hill v. Bolt and in Serhan.

37 Mr. King SC for the respondent accepted that the Griffiths v. Kerkemeyer claim fell within s.50A(d). However, he submitted that the insurer had ample material to be able to make a proper assessment of any claim by the respondent for Griffiths v. Kerkemeyer damages: they had medical reports, including a report by Dr. Parkington dealing specifically with the respondent’s disabilities to perform domestic tasks. On that basis, the insurer was able to assess this aspect of the respondent’s total claim, whether this be nil (because the respondent would not need as much as six hours per week, the minimum necessary for compensation under s.72) or some other appropriate figure. Although Dr. Parkington’s report was not supplied by the respondent, the adequacy of what was supplied by the respondent should be assessed having regard to other information available to the insurer. Certainly, Mr. King submitted, the insurer had not discharged its onus to show that what was supplied was not sufficient.

38 If there were a breach of s.50A in respect of only one aspect of a claimant’s claim under paragraph (d), the effect of s.50A was that the proceedings must exclude that aspect; and if proceedings were commenced including that aspect, they could continue so long as that aspect was excluded from them.

Decision

39 In my opinion, there was a breach of s.50A in respect of the respondent’s Griffiths v. Kerkemeyer claim. It was a significant part of the claim as formulated in the Statement of Claim, and was a part which, by 21st October 1999, the respondent was aware of and intended to make. The fact that the insurer had some material pertinent to an assessment of a claim for Griffiths v. Kerkemeyer damages does not affect the requirement of s.50A that the respondent as claimant give details of what she was claiming: any proper assessment must be on the basis of both what a claimant is claiming and other information available to the insurer. Because of the significance of this aspect of the claim, there was in my opinion no need for the insurer to call evidence that its absence meant that the details supplied were not sufficient: that was a clear and inevitable inference.

40 The question then is what is the consequence of this breach: is it that the entire proceedings must be dismissed, or rather that the Griffiths v. Kerkemeyer claim should be struck out?

41 It is pertinent first to note that s.50A does not mean that a claimant can never go beyond particulars supplied before proceedings are commenced. In my opinion, the obligation under s.50A is to provide details of the claim as reasonably understood by the claimant at the time. When such details are given and proceedings commenced, alterations to the claim made subsequently on the basis of changes in the claimant’s condition or changes in the claimant’s understanding of the consequences of the accident are not precluded. This of course does not directly assist the respondent, however, because plainly the respondent did know by the end of October 1999 that there was a Griffiths v. Kerkemeyer claim which she intended to make.

42 Next, it should be noted that the requirement in paragraph (d) of s.50A is only to give details of losses “that are being claimed as damages”. Accordingly, in this case, if proceedings had been commenced without the Griffiths v. Kerkemeyer claim, there would have been no breach of s.50A. The respondent would have given details of the losses that were being claimed, and it would be irrelevant that she may have suffered some other losses of which details were not given, so long as no damages were claimed in respect of those losses.

43 So the question is, what difference does it make that the Statement of Claim did in fact include the claim for Griffiths v. Kerkemeyer damages? To say that this means that the whole proceedings must be dismissed seems to me unreasonable. If proceedings were commenced including a Griffiths v. Kerkemeyer claim and then amended to exclude it, the amendment would, at least in the absence of an order to the contrary, speak as from the date of commencement of the proceedings; so that it would be as if the proceedings had been commenced without the Griffiths v. Kerkemeyer claim. Furthermore, if a mistake is made in omitting something from details given pursuant to s.50A(d) and also in including that claim in the Statement of Claim, and these mistakes are not discovered until years later, it seems unreasonable that this should defeat the whole proceedings. The result would then be that the claimant would be entirely without a remedy, unless the claimant could come within s.52(4B) so as to be able to commence fresh proceedings.

44 I accept Mr. Hislop’s submission that it is the policy of the Act to have the whole case disclosed prior to commencement of proceedings, with a view to avoiding legal proceedings if possible; and that the Act does provide for severe sanctions for failure to comply. So much is shown by Hill v. Bolt and Serhan, and it must be recognised that those cases lend no support to the view that one can sever a claim and proceed on that part in respect of which the Act has been complied with. However, in those cases it was not suggested that there was any severable part of the claim in respect of which the claimant had complied with the Act and also wished to proceed, so the point was not addressed.

45 In my opinion, it conforms to the wording and policy of the Act, and to good sense, that if there is a severable part of losses claimed in proceedingsv in respect of which s.50A(d) was not complied with, proceedings commenced in breach of s.50A can continue so long as that part is excluded by amendment or by court order striking it out. There is no need in this case to consider whether the same applies in relation to breaches of other paragraphs of s.50A. The effect of such amendment or striking out is that the relevant part of the claim is no longer in respect of a loss that is “being claimed as damages” within s.50A(d), and the proceedings become as if they had been commenced without that claim; and accordingly, the proceedings are not prohibited by s.50A.

46 For these reasons, in my view the remedy in this case is to strike out the Griffiths v. Kerkemeyer claim from the Statement of Claim. There could be a question whether such a claim could later be re-introduced by amendment. It is not appropriate to determine this at this hearing, but my tentative view on this would be that, if there were a substantial change in the respondent’s condition so that the Griffiths v. Kerkemeyer claim became substantially different and greater, the Court would have a discretion to allow an amendment, such discretion to be exercised having regard to the provisions and policy of the Act; but otherwise, such a course would be precluded by s.50A.

SECTION 48
Submissions

47 Mr. Hislop submitted that the primary judge was in error, because the relevant question in the appellant’s request for particulars was not reasonably understood as relating only to paid services, and there was no reasonable excuse for a solicitor, especially a solicitor holding himself out as an accredited specialist in the field, not providing the relevant information either in answer to the question or at least at the end of October 1999.

Decision

48 Section 48, like s.50A, is directed to providing an insurer with information to enable the assessment and settlement of claims. It differs from s.50A in that it focuses on responding to requests for information, and in that it relieves the claimant of its sanction where the claimant can show “reasonable excuse”: there is no such amelioration in s.50A.

49 There was some debate as to whether both the claimant and the claimant’s legal adviser must have a reasonable excuse, if this amelioration is to be availed of. In my opinion, a default of a legal adviser, even one for which there is no reasonable excuse, will not necessarily prevent a claimant showing a reasonable excuse. On the other hand, if there is default, the Court cannot find that the claimant has a reasonable excuse, unless there is evidence led which justifies that finding. In Hill v. Bolt and in Serhan no such evidence was led.

50 In the present case, the primary judge considered that there was no failure to comply with s.48, because the solicitor understood the request in a particular way, and because in any event, the claimant had a reasonable excuse.

51 In my opinion, the relevant question in the request was very badly drafted, if intended to elicit particulars of a Griffiths v. Kerkemeyer claim for gratuitous services; and although one would expect a solicitor experienced in the field to know that particulars should be given of a Griffiths v. Kerkemeyer claim, I am not satisfied that the primary judge was wrong in making these findings.

52 When in October 1999 the claimant and the solicitor became aware that there would be a Griffiths v. Kerkemeyer claim, there was a duty under s.50A to give those particulars, and I have already considered the implications of that. However, in my opinion it would be artificial to hold that there was some outstanding obligation under s.48, merely because an answer given back in July 1997 to a poorly drafted question had become potentially misleading more than two years later.

53 Accordingly, I do not think the primary judge was in error in the decision concerning s.48.

SECTION 52
Submissions

54 Mr. Hislop submitted that the District Court rules could not detract from the effect of the Act, and referred to Osman v. Singh, Court of Appeal, 20/10/96. The Court was bound to give effect to the prohibitions in s.52, notwithstanding the District Court rule; and the District Court rule was accordingly invalid.

55 Even if the District Court rule was valid and the primary judge was correct to dismiss the Notice of Motion, the respondent could not commence the proceedings without leave and the respondent’s application for leave should have been dealt with. It should have been dismissed, because it is necessary to get leave before proceedings are commenced. Mr. Hislop submitted that the decision to the contrary in Dandashli v. Dandashli, Court of Appeal, 16/12/96 was distinguishable, because that related to an earlier version of s.52, before it was made more stringent by the insertion of ss.4(B).

56 Mr. King submitted that the District Court rule was valid, so that the primary judge was correct to dismiss the Notice of Motion. However, Mr. King accepted that the District Court rule could not prevent the application of the Act, so that, if leave was necessary by reason of s.52, the primary judge should have dealt with the respondent’s application for leave.

57 However, Mr. King submitted that leave was not necessary. Section 50A was complied with only in about late October 1999, so that by reason of s.52(1A)(b) proceedings could not be commenced until mid-January 2000; and the respondent then had a further twenty-eight days to commence the proceedings, by reason of s.52(4A). Mr. King submitted that this was not affected by s.52(2)(b), because the insurer’s letter of 6th November 1997 was not an admission of partial liability.

58 In reply, Mr. Hislop submitted that a claimant cannot get extensions to the three year time limit by dribbling in further particulars. In any event, he submitted that s.52(4A) was not engaged, because the claimant had not complied with s.50A at the end of the three year period (that is, 28th November 1999) because she had not given the Griffiths v. Kerkemeyer details. In any event, Mr. Hislop submitted, there was an admission of partial liability from the letter of 6th November 1997 and subsequent payment of expenses under s.42.

Decision

59 I do not think that the District Court rule is inconsistent with the Act: the rule merely has the effect that a defendant cannot move to strike out or dismiss proceedings. However, this does not prevent the defendant raising these provisions of the Act as a defence to the proceedings. Accordingly, the primary judge was right to dismiss the applicant’s application in so far as it relied on s.52; but in my opinion, he was wrong not to deal with the respondent’s application for leave which would be required if the limits imposed by s.52 were transgressed. I accept Mr. King’s submission that leave can be obtained nunc pro tunc: I do not think Dandashli can be distinguished on the ground advanced by Mr. Hislop.

60 However, that leaves the question whether leave is necessary.

61 In my opinion, the letter of 21st October 1999 was a substantial modification of previous details given in relation to the respondent’s claim of economic loss, so that s.52(1A) meant that proceedings could not be commenced until at least 19th January 2000. This approach does have the effect that the time limit of three years may in some cases be extended for a period of up to 118 days by late provision of details under s.50A; but I think this does follow from the scheme of the provisions. Of course, if lack of bona fides were shown, the extension may not apply, but there is no suggestion of that here.

62 There is some force in Mr. Hislop’s point concerning s.52(4A). In one sense at least there was non-compliance with s.50A in relation to the Griffiths v. Kerkemeyer claim. However, I have taken the view that, if the claim is amended to exclude Griffiths v. Kerkemeyer, it is as if the Griffiths v. Kerkemeyer claim had not been made. I propose that the Griffiths v. Kerkemeyer claim be struck out. In relation to the claim as so altered, s.50A was complied with; and in my opinion, that is sufficient to satisfy s.52(4A).

63 There was debate concerning the meaning of s.52(2)(b). During argument, it seemed possible to me that this could be satisfied if the insurer admitted liability up to a certain amount, and the claimant was dissatisfied with that amount. However I have now come to the firm view that admitting partial liability within s.52(2)(b) means admitting something other than total liability for whatever damages the claimant has suffered, this usually being by way of admitting a percentage of liability or admitting liability subject to a percentage discount for contributory negligence.

64 In my opinion, the scheme of the Act is to encourage pre-litigation negotiations concerning the quantum of damages: this is particularly clear in s.52(1A)(c), which requires a claimant not only to respond to an insurer’s offer but also to wait a further twenty-eight days after that response before commencing proceedings. On the other hand, the Act recognises that if the insurer denies all liability, it is fairly pointless to continue with such negotiations. In my opinion, the Act takes a similar position where what is admitted is liability only for a portion of whatever the actual loss turns out to be. In that case again, negotiations concerning the quantum are unlikely to be fruitful. That approach in my opinion accords well with the form of words “partial liability”. It is also the approach reflected in the decision of Hill v. Bolt, in which the Court of Appeal proceeded on the basis that an admission of liability subject to an allowance for contributory negligence was an admission of partial liability.

65 I do not think that approach raises any problem in relation to the duty of an insurer to make payments in respect of medical expenses, once liability has been admitted wholly or in part. In those cases where liability is admitted in part, it is consistent with the language of s.45(2) that what is to be paid is the relevant proportion of the expenses concerned.

66 For those reasons, I do not think that s.52(2)(b) has any application in this case; and in my opinion, s.52(4A) applies so as to make it unnecessary for the respondent to have leave to commence the proceedings. Accordingly, in my opinion the order that should have been made in relation to the respondent’s Notice of Motion was to dismiss it, because leave was not necessary.

ORDERS

67 In relation to costs, in my opinion each party has been partially successful, both in relation to the applications made in the District Court and in the appeal to this Court. I think it is a fair reflection of the results that each party should bear its own costs both at first instance and on appeal.

68 The orders I propose are these:

1. Appeal allowed in part.
2. Order of Rolfe DCJ dismissing the appellant’s Notice of Motion filed 10th May 2000 set aside.
3. Strike out so much of the respondent’s Statement of Claim as relates to the Griffiths v. Kerkemeyer claim, otherwise dismiss the appellant’s Notice of Motion.
4. Dismiss the respondent’s Notice of Motion filed 28th July 2000.
5. Each party to bear its own costs of the Notices of Motion and of the appeal.

: I agree with Hodgson JA.

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