Buller v Black

[2003] NSWCA 45

Reported Decision: (2003) 56 NSWLR 425

Court of Appeal

CITATION:	BULLER v BLACK [2003] NSWCA 45
HEARING DATE(S):	5 February 2003
JUDGMENT DATE:	12 March 2003
JUDGMENT OF:	Mason P at 1; Giles JA at 77; Ipp JA at 100
DECISION:	Appeal dismissed - by majority
CATCHWORDS:	Motor Accidents Act 1988 - ss40(2) 43, 43A, - Limitation period - Delay in making claim for damages - Full and satisfactory explanation for delay - "court is satisfied" - reasonable person in position of the claimant - justifiability of delay (D)
PARTIES :	Jason Laurie BULLER v Ian Matthew BLACK
FILE NUMBER(S):	CA 40690/02
COUNSEL:	Claimant: D Pullinger / D A Marr Opponent: D J Russell SC
SOLICITORS:	Appellant: Mark Rumore, Liverpool Opponent: Bhim Rmarakha

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13765/01
LOWER COURT JUDICIAL OFFICER :	Bowden ADCJ

CA 40690/2002
DC 13765/2001

MASON P
GILES JA
IPP JA

Wednesday 12 March 2003

Jason Laurie BULLER v Ian Matthew BLACK

Facts:
The claimant (Buller), a pedestrian crossing the road, was seriously injured when a car driven by the opponent (Black) hit him. The accident occurred at about 6.00 am on 16 July 1999. The claimant has no recollection of the accident, leaving the opponent as the only witness. On 4 April 2000, the claimant gave notice to the opponent’s insurer that he would be bringing a claim for damages. This was outside the six month limitation period for making a claim stipulated in s43 of the Motor Accidents Act 1988 , but pursuant to s43A of this Act, late claims can be made “if the claimant provides a full and satisfactory explanation for the delay in making the claim” .

“Explanation for the delay”:
The claimant’s stated reasons for the delay in filing the claim were that since he could not recall the circumstances and details of the accident, in November 1999 he engaged a private investigator who provided a report dated 6 December 1999. On the basis of this report, formal advice was sought from a barrister who in February 2000 advised Buller to lodge a claim. The claim form was obtained in March 2000, but Buller’s treating specialist was not immediately available to sign the required medical certificate. The insurer rejected the claimant’s explanation for the delay on 19 June 2000. Buller then brought proceedings in the District Court. During his cross-examination, he said that he had “no reasons” for delaying until November 1999 before contacting the private investigator. Bowden ADCJ allowed a motion by the opponent to dismiss the proceedings on the basis that he was satisfied that the claimant did not have a full and satisfactory explanation for the delay in making the claim (s43A(7) of the Motor Accidents Act 1988 ).

Held:
Mason P (dissenting, upholding appeal with costs and dismissing defendant’s application in the District Court with costs),

(1) Under section 43(7) of the Motor Accidents Act 1988 , the term “court is satisfied” does not grant the sort of largely unexaminable discretion that is conferred upon an administrator. The decision of a primary judge is a normative judgment open to appellate review. [38-39]

(2) The claimant’s explanation was full and satisfactory in terms of section 40(2) of the Motor Accidents Act 1988 and the proceedings in the District Court should not have been dismissed. [54]

(a) “full”
The claimant’s explanation was a full account of his actions, knowledge and belief during the relevant period. He informed the court of the steps he took, and that information was complete when considered in light of the issues raised in his cross-examination. An admission that there were “no reasons” for inaction during a particular period is capable of being a complete explanation for that period. [41]-[44], [55]-[59] (Laidlaw v Touma (2002) 36 MVR 388; Mancini v Thompson [2002] NSWCA 38)
(b) “satisfactory”
The standard used for determining whether a claimant has given a satisfactory explanation is reasonableness, not perfection. [61] (Diaz v Truong (2002) 37 MVR 158) [46] (Giles JA (Ipp JA concurring))
(i) A reasonable person in the claimant’s position could conclude that there would be little point in making a claim unless and until his or her position to aver and, if challenged, prove negligence had been assessed. [63] A reasonable person would therefore have waited, or at least would have been justified in waiting for the investigator’s report. [65]
(ii) Given the lateness of the investigator in producing his report, the claimant was “justified” in waiting for his barrister’s advice. [68]
(iii) Although the satisfactoriness of the claimant’s explanation is to be judged keeping the insurer’s interest in mind, the focus remains the reasonableness and justifiability of the claimant’s actions in the particular circumstances. [69]-[71]
(iv) The fact that the claimant became aware of the six month limitation period does not of itself establish want of satisfactory explanation for the late claim. [62]

Giles JA (Ipp JA concurring) : (dismissing appeal with costs),

(1) Satisfaction that a claimant does not have a satisfactory explanation for the delay in making the claim involves a normative judgment. It is not the exercise of a discretion, but where minds may reasonably differ in the making of the normative judgment it must be asked whether the judge’s determination was open to him. If it was, error is not shown simply because another mind might have come to a different conclusion. [96]

(2) It was open to the trial judge to conclude that a reasonable person in the position of the claimant would not have been justified in experiencing the delay. [97]-[98]

(a) There was significant failure on the claimant’s part between leaving hospital and engaging the investigator to take prompt steps towards claiming damages from the opponent. [90]
(b) At the time the investigator was engaged, the claimant knew of the six month time limit, yet he did not hurry the investigator along. [84] and [91] . A person with knowledge of the six month time limit cannot tarry. [95]
**********

CA 40690/2002
DC 13765/2001

MASON P
GILES JA
IPP JA

Wednesday 12 March 2003

Jason Laurie BULLER v Ian Matthew BLACK

JUDGMENT

MASON P : Under the Motor Accidents Act 1988 (the Act), a claim for damages must be made within six months (s43).

1 Section 43A regulates the late making of claims in the following terms:

Late making of claims
43A Late making of claims

(1) The objects of this section are:
(a) to ensure that the issue of the lateness of a claim is dealt with as soon as possible after receipt of the claim, and
(b) to ensure that any delay caused to the consideration of the substantive claim by the lateness issue is kept to a minimum, and
(c) to ensure that the lateness issue is either resolved or made a mutually apparent substantive issue at an early date.

(2) A claim may be made more than 6 months after the relevant date for the claim under section 43 (in this section called "a late claim") if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third-party insurer concerned (if there is one) or to the Nominal Defendant.

(3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(4) A late claim may not be made more than 12 months after the relevant date for the claim under section 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 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.

(5) Subsection (4) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(6) This subsection applies if the late claim is made against the Nominal Defendant or a person who is insured by a third-party insurer. A reference in this subsection to an insurer includes a reference to the Nominal Defendant.
(a) If, within 2 months after receiving a late claim for which no explanation for delay is provided, the insurer does not reject the claim or ask the claimant to provide a full and satisfactory explanation for the delay in making the claim, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.
(b) If, within 2 months after receiving an explanation for delay in the making of a late claim, the insurer does not reject the explanation, the insurer (and the person against whom the claim is made) lose the right to challenge the claim on the ground of delay.
(c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on:
(i) the ground of delay, or
(ii) in the case of a late claim that is made more than 12 months after the relevant date for the claim under section 43, the ground of the amount of damages,
or both, only within 2 months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may only apply to have the proceedings dismissed on the ground of delay if the insurer (or the person) has not lost the right to challenge the claim on the ground of delay.


(7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively or in addition in the case of a late claim that is made more than 12 months after the relevant date for the claim under section 43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10 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.

The combined effect of sections 43 and 43A is as follows:
Note: A claim generally must be made within 6 months after the date of the accident or the date of death.
If, however, a claim is made between 6 months and 12 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.
A claim cannot be made after 12 months unless a full and satisfactory explanation for the delay is provided AND the damages of all kinds that would be awarded were the claim to succeed are at least 10% of the maximum damages that could be awarded for non-economic loss (see sections 79 and 79A) as at the date of the accident.

2 Section 40(2) provides:

(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.

3 The claimant was seriously injured in a motor vehicle accident on 16 July 1999. He first gave notice to the opponent’s insurer on 4 April 2000. After his explanation for the delay was rejected by the insurer on 19 June 2000 he commenced proceedings in the District Court on 3 December 2001.

4 The opponent moved for dismissal in accordance with s43A(7). Bowden ADCJ was satisfied that the claimant did not provide a full or satisfactory explanation for his delay, and dismissed the proceedings.

5 The dismissal order is challenged in these proceedings which were an application for leave to appeal and an appeal, heard concurrently.

Facts

6 The material put before the primary judge consisted of an affidavit by the opponent’s solicitor annexing documents relating to the late claim and its rejection by the insurer; an affidavit by the claimant, upon which he was cross-examined; and a Police Accident Report.

7 The accident occurred at about 6.00 am on 16 July 1999 when the opponent was driving north along Pittwater Road, Warriewood. The claimant was a pedestrian crossing the road. He has no recollection of the accident. No witness, apart from the opponent, has been located.

8 The Police Traffic Accident Report is dated 23 October 2002. It may be inferred that it contains the information which the police were able to gather as a result of having attended the accident scene on the day of the accident and having interviewed the parties.

9 The claimant’s statement, as recorded, was:

BULLER states:
I went out to dinner with my brokers in the city. Arrived home by taxi at 12 midnight. I took a couple of dollars out and went to the Charlton Bar, but there was no one there. So, I went to the Steyne Hotel.
I had two or three beers there in “Ivy’s Bar”. I didn’t see anyone there I knew, so I started heading home.
The next thing I remember, I was asking the nurse where I was and what happened.

BULLER stated that he had about 6 beers at dinner and 2-3 beers at the Steyne Hotel. He also states that he only lives a short walk from the Steyne Hotel, at 19/19 Pittwater Road, Manly, and has no idea why he was at Warriewood at 6.00am in the morning.

10 The opponent’s statement, as recorded, was:

When approximately 60 metres from the intersection with Jacksons Road, the driver of vehicle 2 states that he noticed, vehicle 1, a pedestrian, standing on the medium strip. He states that when he was approximately 10-15 metres away from the pedestrian, the pedestrian stepped off the median strip in front of his vehicle and hit the windscreen.
The driver of vehicle 2 stated that he had no opportunity to stop or even hit the horn before colliding with the pedestrian.

11 Breath tests showed the opponent as having a negative reading and the claimant’s blood alcohol reading as 0.223.

12 To say the least, the evidence gathered by the police indicates that the claimant will have difficulty establishing that the opponent was negligent.

13 The claimant was taken by ambulance to Royal North Shore Hospital suffering serious injuries. Two operations were subsequently performed on his leg. He was discharged from hospital on 7 August 1999.

14 He was interviewed by the police on 4 August 1999 while still in hospital. The police took the statement later recorded in the Traffic Accident Report. They also informed the claimant that they had earlier taken a statement from the driver of the vehicle that had hit him, and that no charges would be laid against the driver. The police also informed the claimant that there were no other witnesses.

15 Because of these matters and because of his inability to recall the accident, the claimant decided to ask a family friend who was a private investigator to give him a “second opinion”. The investigator (Mr Miles) was first retained in November 1999. On 16 November 1999 he reported to the claimant that he had obtained the Traffic Accident Report, but that at that stage he was awaiting a response to his application to interview the police investigating officers.

16 In his affidavit the claimant offered the following explanation for the delay in filing the claim:

7. Mr Miles provided a report dated 6 December 1999 in late December.
8. Formal advice was then sought from Counsel in relation to the matter and in February 2000 I was advised to lodge a claim.
9. The claim form was obtained in March 2000 and I then made an appointment to see Dr Ellis, my treating specialist, to obtain the necessary medical certificate to attach to my claim. I had to wait a further two weeks for my appointment with Dr Ellis and, when I attended I was informed he was on leave and I had to make a further appointment. I was not able to see him until 28 April 2000.
10. The claim form however, was forwarded on 3 April 2000 as I was told that the matter could not be delayed any longer. Accompanying the claim form was an explanation for the delay in making the claim in similar terms to my statutory declaration sworn 10 May 2000, although it was not in the form of a statutory declaration.
11. The reasons for the delay in making the claim are as follows:
(a) My inability to recall the circumstances and details of the accident which necessitated engaging a private investigator and subsequently obtaining advice from a barrister about my prospects.
(b) The unavailability of Dr Ellis to sign the medical certificate.
12. In March 2001 I obtained a report from Dr Ellis which indicated that the injuries to my leg had not yet stabilised.
13. The accident was reported to the police on 16 July 1999 and the defendant was aware of the claim, a claim form being submitted on 3 April 2000, about 2½ months after the time he should have been notified.
14. I suffered serious injuries in the accident and have done my best within the time allowed to bring my claim. I respectfully request that my claim be allowed to proceed.

17 The oral evidence of the claimant as to when he first learnt of the requirement to file a claim form within six months of the accident is rather contradictory. But it would appear that the claimant knew of this obligation before the six months expired (cf Tr p2), having first learnt this “a few months after” he got out of hospital (p3 line 7). Judge Bowden interpreted the evidence this way, observing that:

It is not the usual case where the person says that they were unaware of the necessity to do any of these things.

18 Most of the oral evidence addressed the claimant’s attempt to explain and justify his delay.

19 He was asked in chief why he did not file a claim form within six months, and responded (Tr p2):

I was unaware due to my not knowing of the accident and I need to investigate it to find out what the story was about the accident. His report forwarded to a barrister, and the barrister saying I’ve got a case, then I was informed I needed to get a medical report, made an appointment to see the doctor, the treating doctor, he was unavailable for a few weeks, and then it was just delaying and delaying things.

This evidence was consonant with par 11 of the affidavit set out above.

20 Cross examination elicited the following additional information:

• The first lawyer approached by the claimant was his barrister, Mr Marr, and he saw him in February 2000 (pp 3, 4).

• Until he saw Mr Marr he was not aware whether he had a case or not (p4).

• He knew by early August that the police investigation had involved interviewing the driver and the decision that no charges would be laid against him (p5). (Bowden ADCJ correctly concluded that the reasonable person would have inferred that the police did not think that the accident was the driver’s fault.)

• Because he did not recall the accident and knew from the police that there were no eyewitnesses to it (apart from the driver) he needed a “second opinion” (pp5, 6).

• The delay in engaging the investigator and pressing him for his final report was addressed in the following evidence (pp6, 7):

Q. Why did you delay until November 1999 before you engaged the investigator?
A. Being incapacitated and on crutches for a long time I was – family members suggested that I take up some action.
Q. And when you did contact the investigator I suppose you telephoned him did you?
A. Yes.

Q. Well you could have done that even though you were on crutches, correct?
A. Yes.
Q. So it wasn’t being on crutches that caused you to delay until November engaging the investigator was it?
A. No.
Q. Well what reason do you have for delaying until November 1999 before you contacted the investigator?
A. I have no reasons.
Q. And when you did contact the investigator, did you say listen you’d better hurry up with this report, because I’ve only got six months to make a claim?
A. No I never.
Q. Well you knew that though didn’t you?
A. I was informed along the lines yes.
Q. Then you knew that at the time you were going to the investigator didn’t you?
A. Yeah.
Q. Well with time rapidly running out why didn’t you do something to hurry up the investigator and get his report quicker?
A. He was doing it as a favour, and I didn’t want to push him.
Q. But you knew your time was running out didn’t you?
A. I was aware.

21 It is pertinent to firstly observe that no questions were asked about the content of Mr Miles’ final report or the basis upon which counsel advised the claimant in February 2000 that he should lodge a claim. Perhaps both parties thought that this particular information was the subject of client legal privilege, perhaps both were content to leave the matter unexplored. The important matter is that the claimant was not challenged on his evidence that he did not know whether he had a case until he saw Mr Marr in February 2000, and that the barrister then advised him to lodge a claim.

22 The second general observation about the cross examination is that the claimant was not even questioned about the delay that occurred between “late December” when he got the final report of the investigator and “February 2000” when he obtained formal advice from his barrister. This absence of challenge is relevant to the issues we have to decide, for reasons I shall explain below. In this Court we were also invited to take judicial notice of the fact that many barristers are on leave during the long vacation, especially between late December and mid January. I am prepared to notice or assume this fact, while observing that it could not be a complete answer to the problems of justifying why the deadline of 15 January 2000 came and went and why further time elapsed until the claim was lodged.

23 Thirdly, the claimant was not challenged as to his affidavit evidence concerning the unavailability of Dr Ellis to sign “the medical certificate”. (I take this to be a reference to the yellow Medical Certificate form that is referred to in par 32 of the pro forma Personal Injury Claim Form.) All the cross examiner did on this account was to get the claimant to agree that he did not ask Dr Ellis to sign the medical certificate until after he had seen his barrister in February 2000.

24 The principal focus of attention was on the period between August 1999 and 15 January 2000.

25 In observing that particular challenges were not raised in cross examination or argument I am not suggesting that the opponent bore an evidentiary onus on the questions of full and satisfactory explanation (see further below).

26 But fairness to the parties requires the court to focus upon the issues actually joined at the primary hearing. In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116, this Court explained why applications to extend limitation periods and analogous proceedings should not be conducted in accordance with “the ambush theory of litigation”, or, at the very least, why if they are conducted that way by defendants and their insurers, the Court will closely scrutinised the proceedings to ensure that no substantial injustice is occasioned. In the leading judgment, Heydon JA gave several reasons why such an approach to the conduct of applications to extend time or to be excused for delay must cease (see at 127-129). Much of what his Honour wrote in that extended passage is of present relevance. I draw particular attention to the following (at 129 [31]):

If the ambush theory of litigation is permitted to survive in the specific area of time-extension proceedings, it will do no party any good, least of all the potential defendants. In the first place, it will have the effect of imposing on all applicants in this type of litigation a duty to file evidence which is adequate to deal with every conceivable point which might be taken against them. This would generate undue expense, would tend to consume court time unnecessarily, and would produce the undesirable result that applications to extend time would become mini-trials of the contemplated action.

27 The last day for making a claim in accordance with s43 was 15 January 2000. The claimant appears to have completed the claim form on 22 March 2000, when he signed the statutory declaration that is part of it. He sent it to the insurer on 4 April 2000.

28 The claim form calls for information about the accident, police action, the identity of witnesses, injuries, medical treatment and economic loss. It does not deal with any issue of explanation for delay, nor does it or the Act require that any such explanation be verified.

29 The form was delivered to the insurer on 4 April 2000 accompanied by an explanation for the delay, apparently in a letter. The claimant swore that it was in similar terms to the statutory declaration which he later sent to the insurer, and this evidence was not challenged in cross examination. This statutory declaration, in turn, was substantially to the effect of the claimant’s affidavit in the proceedings.

30 On 11 April 2000 the insurer wrote to the claimant, making no reference to the explanation that the claimant had provided on 4 April 2000 but simply informing the claimant that his explanation was “required in the form of a statutory declaration”. The claimant complied on 17 May, but his now verified explanation was rejected on 19 June 2000.

31 It was not suggested that the insurer had any statutory authority to require the claimant’s explanation to be given in the form of a statutory declaration. I am not suggesting that it was unlawful for it to make such requirement, but the attitude disclosed in its letter of 11 April 2000 reinforces my opinion that a person contemplating making a claim against an insured owner of a motor vehicle would be acting reasonably in assuming that the insurer would be likely to put an injured person to strict proof.

Some general observations about the statutory scheme

32 Section 43 imposes on an injured person a duty to make a claim within six months after the accident. The object of this requirement is (s43(1)):

… to promote the early making of claims to enable the insurer:
(a) to commence investigations while evidence relating to a claim is available, and
(b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant’s recovery, and
(c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums.

33 Notwithstanding s43, s43A(2) gives a right to make a “late claim” if the claimant provides a full and satisfactory explanation for the delay in making the claim. There is an additional requirement if the claim is made more than 12 months after the relevant date (s43A(4)), but that is not presently relevant.

34 Section 43A(6)(a) and (b) place an onus upon an insurer to act within two months if rejecting a late claim, asking for a full and satisfactory explanation for delay, or rejecting an explanation. In the circumstances of this application, these provisions have no bearing on the rights of the parties. Arguably they could have in light of the time that elapsed between 4 April 2000 and 19 June 2000, but the application below proceeded on a contrary basis and it would not be in the interests of justice to permit a departure (see Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631). The Court therefore refused leave to the claimant to raise arguments based upon s43A(6)(a) and (b) (see CA Tr pp24-5).

35 The court has no power but to dismiss proceedings commenced in respect of a late claim if, in a case such as the present, “the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim” (s43A(7)). This provision places the ultimate persuasive onus upon the defendant moving for dismissal. That party must establish the negative proposition, although the plaintiff may bear an evidentiary onus to adduce the material to be relied upon as constituting the full and satisfactory explanation. So long as the differences between the persuasive and the evidentiary onus are kept in mind, it is pertinent to observe that “it is not appropriate, except on the margin, for the court to draw inferences” [in the plaintiff’s favour] (per Handley JA in Langlands v Simovic [2002] NSWCA 57 at [15]).

36 The reference in s43A(7) to the court being satisfied that the claimant “does not have” a full and satisfactory explanation indicates that at the curial stage the focus is upon the material placed before the court, as distinct from that earlier placed before the insurer and rejected as inadequate by the insurer (cf s43A(6)). This creates a curious tension with the definition of “full and satisfactory explanation” in s40(2) (set out above), in so far as that definition refers to a full account of conduct “until the date of providing the explanation”. It is difficult to see the relevance of events occurring during the time elapsing between the receipt of the late claim and the time when the claimant seeks to justify his or her conduct in court. Perhaps this aspect of s40(2) (a provision applicable to a number of sections) is inapt for s43A(7). I incline to the view that the definition must yield to the context in so far as there is a possible discrepancy, but in any event this problem does not arise in the present case. In the present case it was not suggested that the claimant’s explanation had to address this later period (cf the curious reference to “the date of providing the first explanation” in the primary judge’s reasons, set out below).

37 Section 43A(7) confers no discretion upon the court as to dismissal of the proceedings or otherwise. Nor is provision made for any weighing of prejudice (see Russo v Aiello [2001] NSWCA 306, Mancini v Thompson [2002] NSWCA 38). This contrasts, for example, with s52(4) of the Act and comparable provisions in the Limitation Act 1969.

38 It was suggested by the opponent that the expression “the court is satisfied” in s43A(7) conferred that type of largely unexaminable discretion that one finds in relation to powers conferred upon an administrator (cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 285-6). Accordingly, the opponent submitted that the decision of the primary judge was protected from appellate review because it was not so unreasonable that no tribunal of fact could be satisfied as to the absence of a full and satisfactory explanation.

39 In my view, this misconstrues the nature of the power conferred on the court by s43A(7). That power is conferred on a court required to proceed on the basis of evidence, to give reasons for its conclusions, and subject to appellate supervision by way of an appeal by rehearing. The first instance decision about the court being satisfied of the requisite matter is, like a finding of negligence, one that involves a normative judgment (cf Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 at [49] per Gleeson CJ). But, as with such a finding, appellate review is not restricted by the principles in cases like Wu Shan Liang. Nor is this appeal governed by the principles in House v R (1936) 55 CLR 499.

40 Section 40(2) defines the meaning of a full and satisfactory explanation and in doing so makes it clear that the explanation must pass muster on both counts.

41 On the former matter, there must be “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”. (As indicated above, the final words appear inapt in the context of s43A(7).)

42 As Rolfe AJA (Beazley and Stein JJA agreeing) pointed out in Mancini at [46]:

The purpose… 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’.

43 These remarks were endorsed by this Court in Laidlaw v Touma (2002) 36 MVR 388. There, Stein JA (Handley JA and Davies AJA agreeing) added (at [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.

44 The complete explanation is, of course, an explanation of what actually happened, warts and all. Accordingly, an admission that there were “no reasons” for inaction during a particular period (as the plaintiff conceded in evidence not suggested to have been untruthful) was capable of being a complete explanation for that period. Whether it was satisfactory is another matter.

45 Even if there is a full explanation it must also be satisfactory, a term defined negatively in s40(2) as follows:

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.

46 In Diaz v Truong (2002) 37 MVR 158 Giles JA said (at [40]-[42]:

40. When asking whether the full account of the conduct is a satisfactory explanation, satisfactoriness is not confined to whether a reasonable person et cetera. That a reasonable person et cetera is a necessary condition, but it is not stated as a sufficient condition.
41. The purpose of “unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay” in the second sentence is tolerably clear. It is intended to set an objective standard of conduct which the full account of the conduct to which the first sentence refers must achieve. That does not necessarily make the explanation satisfactory, although it is not easy to see why a full account of conduct meeting the objective standard would not generally be a satisfactory explanation.
42. The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being “justified in experiencing” a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay.

47 In some circumstances it will be necessary to examine the conduct of the plaintiff’s agents, and this may throw up legal and factual issues regarding the extent to which the plaintiff is affected by the inappropriate dilatoriness of appointed agents (cf Diaz). Such issues do not arise in the present case because, in cross examination of the plaintiff and the judgment below, attention was concentrated solely on the plaintiff’s conduct, especially his conduct in allowing the initial six month period to elapse.

48 If I have misunderstood this, and if some criticism is levelled at the suggested personal delay of the private investigator, I do not see any evidentiary basis for concluding that it was unsatisfactory in the circumstances. Between his interim and final reports the investigator was, inter alia, awaiting a response to his application to interview the police investigating officers. It is unclear what this interview achieved (assuming it took place), but this was never explored.

Reasons of the primary judge

49 Bowden ADCJ recounted the facts and then expressed his dispositive conclusions in the following terms:

When asked why he waited further for an investigator the answer was he wanted a second opinion. I do not quite understand this except as a phrase in perhaps common use because he was not wanting a second opinion about anything, he was wanting a further investigation. This is not a matter of providing facts and things to an expert to obtain an opinion, this was an investigation of circumstances to see whether a claim should be made. Whatever, an investigator was engaged and he told him something but we do not know what – we are lacking in that information. Having got the investigation report, telling him what we do not know, certainly we do not know whether anything further beyond what the police could provide in the police report, the plaintiff says that he then consulted a lawyer but still no claim form was lodged. There was an explanation of some delay because the treating doctor was away, that covers part of it.
The plaintiff is a young man of at least average and probably more than average intelligence, being in mind his occupation at the time of the accident. It does not seem to me that I can really say that from the plaintiff, there is a full account of his conduct, including his actions, his knowledge, his belief from the date of the accident until the date of providing the first explanation. Still less can I say that it is a satisfactory one because to do that I would have to find that a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay. I do not think that a reasonable person in the plaintiff’s position with the plaintiff’s state of awareness of the need to lodge a claim form within a particular period of time, knowing that he could identify the person who would be the other party in the claim would have failed as the applicant had failed, have been justified. Particularly bearing in mind that the lodging of the claim form did not involve the expenditure of money other than the cost of filling in the form. It did not subject him to any costs order. I cannot see that a reasonable man in this person’s position could be justified in failing to comply with this duty that was known to exist. The onus is on the defendant to establish it and I think the defendant has established it. That being the case it is not a matter of exercising discretion but a statutory obligation on my part to dismiss the proceedings, which I do with costs.

50 This passage confirms that the critical period addressed in the proceedings and the judgment was that between 7 August 1999 when the claimant got out of hospital and “February 2000” when the claimant was advised to make a claim. He thereafter set about doing so in circumstances that were fully and satisfactorily explained.

Claimant’s submissions analysed

51 The claimant submits that his explanation for the delay was full and satisfactory.

52 It was satisfactory, he submitted, because it was reasonable in the circumstances to refrain from making a claim until his prospects in relation to liability had been assessed. That is because the making of a claim would set in motion the insurer’s investigation of the claim, including the circumstances of the accident, liability, medical evidence and quantum of damages. It was not simply a case of lodging a “holding claim”. Time and money were expended (by the claimant) in completing the claim and (by the insurer) in investigating it. The lodging of un-investigated claims should not be encouraged.

53 This argument was directed at the particular circumstances of this case. Nevertheless, I cannot accept the submission in its entirety. It omits consideration of the insurer’s interest in prompt notification and gives no weight to the statutory object of the six month requirement as stated in s43(1).

54 I am nevertheless persuaded that the claimant’s explanation in the present case was full and satisfactory and that the proceedings in the District Court should not have been dismissed.

55 In my view it was not open to conclude that the claimant had failed fully to explain his relevant delay. The plaintiff informed the court of the steps that he took and that information was complete, when considered in light of the issues raised in his cross-examination. It was a full account of his actions, knowledge and belief during the relevant period.

56 I have difficulty seeing what issue was raised below as to the fullness of the explanation as distinct from its satisfactory nature. The matters addressed by the judge in the first portion of his reasons set out above appear in large part to address the latter issue, not the former.

57 His Honour nevertheless seems to have suggested two particular matters of concern. The first dealt with the claimant’s rather vague statement that he wanted a “second opinion” from the investigator. His Honour said that he did not quite understand this except as a phrase in perhaps common use. Be that as it may, the judge correctly interpreted the claimant as meaning that he wanted a further investigation. So understood, this was an explanation why the claimant delayed filing a claim. That explanation was fleshed out in the other evidence to the effect that the claimant waited until he got the final report from the investigator and then waited until he received advice from the barrister before proceeding. His inability to proceed immediately after getting the barrister’s advice was explained by reference to the circumstances causing the delay in getting Dr Ellis’ certificate.

58 All of these matters fully explained why the claimant tarried as he did. The explanation may or may not have been satisfactory, but it addressed and covered the whole of the relevant period.

59 The second matter adverted to, but only in passing, was the relatively unknown content of the investigation report. It was not in my view incumbent upon the claimant to divulge this information in any more detail than he did in order to comply with the duty to give a full explanation. I say this for two reasons. The first is that no point was raised in cross-examination or argument. The second is that this had no bearing on the fullness of the explanation, because it was sufficient for the claimant to say (unchallenged) that the report was the material which, when placed before the barrister, led the barrister to advise the claimant to proceed.

60 I am also persuaded that the primary judge erred when he found that the explanation was not a satisfactory one.

61 Section 43A proceeds on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness, not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate questions are whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.

62 This claimant learnt of the six month time period “a few months after” his discharge from hospital, presumably before he engaged the investigator in November. For all we know (it was not explored) he also learnt that a further period of six months was available to a person who could give a full and satisfactory explanation for having gone beyond the initial six month period. However, the critical point is that the knowledge the claimant acquired some time in or after August 1999 did not in itself establish want of a satisfactory explanation for the late claim. The duty to make a timely claim on pain of dismissal is not absolute, nor does it become so merely because a claimant knows about s43 of the Act.

63 In my view, a reasonable person with the difficult case of this claimant could conclude that there was little point in completing the detailed claim form and putting the insurer on notice unless and until it had been determined that he or she was in a position to aver negligence and, if challenged, to prove it. A reasonable person knows that motor vehicle insurers are not given to public benevolence and that they have every right to reject a claim made against the owner or driver of a vehicle where the driver is not shown to be negligent. (In using “could” I have not overlooked the “would” of s40(2), but I have yet to get to that ultimate issue.)

64 Section 40(2) addresses the position of the particular claimant. This particular claimant would have been acting unreasonably if he thought that he had any material prospect of obtaining compensation from the opponent’s insurers if he relied upon no more than the information disclosed in the Traffic Accident Report. This claimant would also have known that the insurer would have access to the information in that Report.

65 On the unchallenged evidence, one must infer that the investigator discovered something additional which led the barrister to advise that the claim should go forward. What it was has not been explored, but the present application cannot be converted into a motion to dismiss groundless proceedings. On the contrary, the claimant’s evidence was that the information in the investigator’s report led the barrister to say that he had a case. In the particular circumstances of this difficult plaintiff’s case I am of the view that a reasonable person would not have commenced proceedings without this “something more”, unidentified though it is.

66 The opponent does not suggest that the claimant’s conduct was unsatisfactory during the weeks he was in hospital. I mention this to make the point that experiencing some delay can be justified (to use the passive language of s40(2)). A reasonable person who gets back on his feet, physically and metaphorically, after some justifiable period of inaction may be expected to move with added promptness to redeem the time lost. This is the biggest problem with the claimant’s case, because he let some time slip before deciding in effect not to drop the prospect of making a claim without first getting the investigator’s “second opinion”. In his justification, he points firstly to the fact that he did not know of the six month period until “a few months after” his discharge from hospital; and secondly, to the delay (largely beyond his control) while he was in the hands of an investigator working as a personal favour who was in turn (to a degree) in the hands of the police.

67 To my mind, a reasonable person in the claimant’s position would have waited. At the very lest, waiting as he did was “justified” in the circumstances. The investigator’s lateness in producing the critical first report was compounded by the inability to get legal advice in the period between December and February. Having waited until late December before getting the final report, the claimant was in my view “justified” in waiting until February for his barrister’s advice. It was not unreasonable to refrain from searching out some barrister who might have been on deck between late December and 15 January.

68 I am not suggesting that it would have been impossible to have obtained the report earlier or to have found legal advice from somewhere during this period of high vacation. But the standard is not possibility but reasonableness and the Act contemplates that delay is capable of being justified.

69 From the insurer’s point of view in the present case, the difference between getting the claim by 15 January 2000 and getting it when it did (4 April 2000) was marginal. The satisfactoriness of the claimant’s explanation is to be judged keeping the insurer’s interest in mind (cf s43(1)). But the focus remains the reasonableness and justifiability of the claimant’s actions in the particular circumstances.

70 Suing is one thing, lodging a claim is another. Before us, the opponent submitted that the claim should have been lodged within time, whether or not the claimant had yet formed a view that he would sue if the claim were rejected. The insurer’s interest in early investigation as reflected in the terms of s43(1) could not be ignored.

71 In some cases this would be correct. But I reiterate that the insurer’s prejudice is not in itself a relevant factor, nor is the Court permitted to engage in a balancing exercise. It is the opponent who in the present case must satisfy the Court that the claimant’s explanation of his delay was unsatisfactory in all the circumstances. It will not be satisfactory unless a reasonable person in the position of the claimant would have failed to have claimed within six months of the accident or would have been justified in experiencing the same delay as this claimant experienced.

72 Acting Judge Bowden thought it unreasonable to have waited for the investigator’s report and counsel’s advice. I have explained why I disagree.

73 The nub of his Honour’s reasoning as to unsatisfactory explanation in the passage set out above was that the plaintiff knew of the time limit. Again, I have endeavoured to explain why this cannot be determinative.

74 Acting Judge Bowden also referred to the relatively little effort involved in completing and submitting the form and the lack of exposure to any cost sanction from doing this and no more. For some lay people, completing lengthy forms is a daunting experience. This said, I do not dispute the relevance of these factors mentioned in the judgment. But again I would indicate that they are only part of the story in the present case.

75 The Summons for leave to appeal was filed late because the White Book was rejected when presented for filing (in time). This was because the transcript of the judge’s reasons was not in the papers. It had been overlooked. An affidavit explaining this oversight has been filed. No submissions were made to this Court against the application to extend time.

76 I propose the following orders:

1. Extend time for filing summons for leave to appeal.

2. Grant leave to appeal.

3. Subject to the filing of a notice of appeal, appeal upheld with costs.

4. Set aside orders made on 1 March 2002 dismissing the proceedings and ordering the plaintiff to pay the defendant’s costs.

5. In lieu thereof, dismiss with costs the defendant’s application in the District Court.

77 GILES JA: This is an application for leave to appeal, with an attendant application for an extension of time, from dismissal of the claimant’s District Court proceedings on the ground of delay in making a claim for damages. The reasons of Mason P, which I have had the advantage of reading in draft, fully refer to the facts and the applicable legislation.

78 I would grant the necessary extension of time and grant leave to appeal. Respectfully disagreeing with Mason P, however, I would dismiss the appeal. In explaining why that is so, I draw upon his Honour’s reasons and avoid needless repetition.

79 It was necessary that the opponent satisfy the judge that the claimant “does not have a full and satisfactory explanation for the delay in making the claim”. The explanation had to be both full and satisfactory. The judge was satisfied that it was neither. I pass over whether it was a full explanation, although it might be thought that “I have no reasons” pointed to a gap in an account of actions, knowledge and belief. In my opinion, the error has not been shown in the judge’s determination as to a satisfactory explanation.

80 The accident occurred on 16 July 1999. The claimant had no memory of the accident. When interviewed by the police on 4 August 1999 he was told by them that there were no other witnesses. He was also told that no charges would be laid against the opponent.

81 The claimant was in hospital until 7 August 1999. He said that he was thereafter “incapacitated and on crutches for a long time”.

82 At the prompting of family members (as I would infer, because the claimant said in connection with it that family members “suggested that I take up some action”), in November 1999 the claimant engaged a private investigator “to investigate the circumstances of the accident”. The private investigator, Mr Paul Miles, was a family friend. When Mr Miles was engaged the claimant knew that he had six months from 16 July 1999 to make any claim for damages.

83 On 16 November 1999 Mr Miles told the claimant that he had obtained “the Police Traffic Accident Report” but that “at that stage he was awaiting a response to his application to interview the police investigating officers”. The document obtained by Mr Miles was not in evidence and was not otherwise described.

84 Neither when he engaged Mr Miles nor thereafter did the claimant ask him to hurry his investigation because of the six month time limit. The claimant said that Mr Miles “was doing it as a favour, and I didn’t want to push him”.

85 In late December 1999 Mr Miles provided a report dated 6 December 1999. The document was not in evidence, nor was it otherwise shown whether or when Mr Miles interviewed the police investigating officers or what “circumstances of the accident” he reported.

86 The six months expired on 16 January 2000.

87 At some time in February 2000 the claimant saw Mr Marr of counsel and was given advice “in relation to the matter” including to lodge a claim. When in February this occurred was not stated.

88 In March 2000 the claimant obtained a claim form. The claim form asked about treatment for injuries and included a note, “Remember to get your doctor to complete the yellow Medical Certificate form”. The claimant made an appointment with Dr Ellis for two weeks later. The doctor was on leave when he attended, and a further appointment was not available until the end of April 2000. Presumably conscious of the passing of time, on 3 April 2000 the claimant sent the claim form to the insurer without the yellow form. Counting backwards, the claim form was probably obtained by the claimant in the first half of March.

89 About three months passed between the claimant’s discharge from hospital and his engagement of Mr Miles. He must have contemplated making a claim for damages from very early on: that underlies his evidence that, after he had been told of the police investigation, he needed a “second opinion” and needed “to investigate it to find out what the story was about the accident”, and his evidence of his family’s suggestion. The claimant’s initial explanation for delay in the investigation was that he was incapacitated and on crutches, but he agreed that he was not thereby delayed in engaging Mr Miles and this three months was left -

“Q. Well what reason do you have for delaying until November 1999 before you contacted the investigator?
A. I have no reason.”

90 The evidence does not warrant a finding that the claimant knew of the six month time limit until when he engaged Mr Miles. But there was significant failure on the claimant’s part between leaving hospital and engaging Mr Miles to take prompt steps towards claiming damages from the opponent.

91 A further month and a half or more went by before the claimant was provided with Mr Miles’ report. The claimant knew of the six month time limit, and that the time was running out. It is not easy to see what Mr Miles thought might come from interviewing the investigating police officers, but (as events showed) whatever Mr Miles reported was likely to be only the first step, followed by obtaining legal advice. It was all the more important that Mr Miles be hurried up if the six month time limit were to be achieved. This was not done. If the claimant felt inhibited in hurrying Mr Miles up, because Mr Miles was doing him a favour, he could have had someone else “investigate the circumstances of the accident”.

92 After late December 1999 there was then at best leisurely attention to making a claim, even allowing for the time of year. There are many lawyers in Sydney, where the claimant lived. No reason for seeing Mr Marr rather than some other lawyer was given. If Mr Marr was seen in early February 2000 there was delay in obtaining the claim form; if Mr Marr was not seen until late February 2000 the delay in obtaining legal advice was all the greater. The claimant knew that the six months would expire on 16 January 2000, then knew that it had expired. Three months went by.

93 Whether a satisfactory explanation for the delay in making the claim is provided looks to the period until “the date of providing the explanation”. There is no need to decide whether this called for regard to the period from 3 April 2000 to the hearing before the judge, as no one suggested that regard to that period either added to or detracted from the satisfactoriness of the explanation.

94 The question was whether the explanation for the delay, being the delay in that the claim was not made until 3 April 2000, had been satisfactorily explained. The judge had to be satisfied that it had not been, with the persuasive burden on the opponent. The necessary requirement for a satisfactory explanation was that “a reasonable person in the position of the claimant … would have been justified in experiencing the same delay”. This, as I observed in Diaz v Truong (2002) 37 MVR 158 at [41]-[42], is intended to set an objective standard of conduct and meaning that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The language of experiencing the delay must have been intended to take account of other persons’ conduct affecting the making of a claim.

95 The requirement must be understood for its function in the wider scheme in the Act. Section 43 states as its object, that is, the reason for the six month time limit, promotion of the early making of claims to enable the insurer to commence investigation while evidence is available, to identify injuries and facilitate access to injury management and rehabilitation services, and to more accurately predict claim frequency and hence formulate premiums. Late claims will still be recognised provided a full and satisfactory explanation for the delay in making the claim is provided, but only if the claimant’s explanation is (relevantly) satisfactory, and satisfactoriness is given a minimum content. A person with knowledge of the six month time limit, in particular, can not tarry.

96 The judge’s reasons sometimes rather inappropriately refer to compliance with a duty, and the important sentence ending “have been justified” went grammatically astray. Nonetheless it is plain that the judge was satisfied that the explanation for the claimant’s delay did not fulfil this necessary requirement. Satisfaction that a claimant does not have a satisfactory explanation for the delay in making the claim involves a normative judgment. It is not the exercise of a discretion, but where minds may reasonably differ in the making of the normative judgment it must be asked whether the judge’s determination was open to him. If it was, error is not shown simply because another mind might have come to a different determination.

97 In my opinion, the judge’s determination was open to him.

98 Allowing for the claimant to regain an ability to attend to his affairs following his discharge from hospital, there were nonetheless unexplained months until November 1999, then failure to hurry Mr Miles along despite the known six month time limit, then after late December 1999 the at best leisurely attention to making a claim despite the known imminence of the expiry of the six months and later the knowledge that it had expired. The whole period of delay must be considered, so that the earlier unexplained inaction impelled prompt action when the six month time limit was known. The judge was entitled to conclude that a reasonable person in the position of the claimant would not have been justified in experiencing the delay.

99 I propose the orders -

1. Extend the time for filing the summons claiming leave to appeal.

2. Grant leave to appeal and direct that the notice of appeal be filed within 7 days.

3. Dismiss the appeal.

4. Appellant to pay the respondent’s costs of the summons and the appeal.

100 IPP JA: I agree with Giles JA.

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Last Modified: 03/25/2003