Choukor v Spiroski

[2016] NSWDC 358

District Court

New South Wales

Medium Neutral Citation:	Choukor v Spiroski [2016] NSWDC 358
Hearing dates:	5 December 2016
Date of orders:	13 December 2016
Decision date:	13 December 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed. (2) That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016; (3) The parties have liberty to apply on two business days’ notice to vary the order in (2) above.
Catchwords:	Motor accident claim – tort - negligence – failure by the plaintiff to make a claim within 6 months after the date of the accident – whether the plaintiff has a full and satisfactory explanation for the delay in making the claim
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Buller v Black [2003] NSWCA 45 Dijakovic v Perez [2015] NSWCA 174 Ellis v Reko Pty Ltd [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 290 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Lyu v Jeon [2012] NSWCA 446 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Category:	Principal judgment
Parties:	Fatima Choukor (Plaintiff) Riste Spiroski (Defendant)
Representation:	Counsel: M Daley (Plaintiff) B Wilson (Defendant)   Solicitors: Cameron Gillingham Boyd (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2016/00159417

Judgment

1. Before the court is a Notice of Motion filed 20 July 2016 by the defendant for orders that the proceedings be dismissed pursuant to Section 73(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”). The application arises out of proceedings commenced by the plaintiff on 24 May 2016.

2. The plaintiff asserts that on 27 April 2013 a vehicle which she was driving had a collision with a motor vehicle driven by the defendant in the vicinity of the intersection of Queens Road and Croydon Road, Hurstville in Sydney in New South Wales. The plaintiff alleges in the Statement of Claim the accident was caused by the negligence of the defendant.

3. The plaintiff also alleges that she suffered serious injuries in the accident. Evidence shows that the injuries include a serious injury to the plaintiff’s right eye which has left her with permanently impaired vision in that eye. The Part 15, Rule 12 Statement filed on 24 May 2016 claims that the plaintiff has serious ongoing disabilities including loss of vision to the right eye, pain and stiffness to the neck, back and right shoulder and depression.

4. By his Defence dated 20 July 2016 the defendant has denied liability. It appears that there will be an issue between the parties at the final hearing as to who was at fault in relation to the accident.

5. The issue in the Notice of Motion is whether the plaintiff has provided a full and satisfactory explanation for a delay by her in making a claim in relation to the accident. The defendant submits that a full and satisfactory explanation for the delay has not been provided. The plaintiff submits that she has.

6. As stated above, the accident occurred on 27 April 2013. Notice of the claim was not provided by the plaintiff to the defendant’s insurer until 20 August 2015. A first explanation by the plaintiff for her delay was not apparently provided until 11 December 2015.

Relevant legislative provisions

7. Sections 72 and 73 of MACA provide as follows:

“72   Time for and notice of making of claims

(1)  A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.

(2)  A claim is made by giving notice of the claim as follows:

(a)  in the case of a claim against a person whose insurer is a third-party insurer, to the person’s insurer,

(b)  in any other case, to the person against whom the claim is made.

(3)  The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:

(a)  that person is dead, or

(b)  that person cannot be given notice.

73   Late making of claims

(1)  A claim may be made more than 6 months after the relevant date for the claim under section 72 (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 insurer.

(2)  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.

(3)  If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

(a)  the insurer has lost the right to reject the claim on the ground of delay, or

(b)  a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c)  the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4)  The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a)  does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b)  does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(5)  If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.

(6)  An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.

(7)  On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8)  In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

Note. The combined effect of sections 72 and 73 is as follows:

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 more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.

Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor.”

8. The concept of a “full and satisfactory explanation for the delay” is explained further in Section 66(2) of MACA as follows:

“66   Definitions

…

(2)  In this Chapter, 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.”

Factual background

9. The factual background to the matter as established by the evidence is highly relevant and is as follows:

1. The plaintiff was born in February 1994 which means that she had just turned 19 at the time of the accident;

2. Her mother had died when she was 14. At the time of the accident she was driving her stepmother’s vehicle. She lived with her stepmother and father and their families;

3. The plaintiff completed her Year 12 studies at Kingsgrove High School in 2011. In 2012, she commenced a Bachelor of Chiropractic Science at Macquarie University in Sydney;

4. On 27 April 2013 she was involved in the accident. She was taken by ambulance to St George Hospital and was discharged from that hospital on 29 April 2013;

5. Before the accident her vision was normal in both eyes. As stated above, she injured her right eye in the accident. Following the accident she consulted various medical practitioners including eye specialists;

6. After the accident, the plaintiff had difficulties with her university studies and withdrew from several courses in her degree in 2013 and 2014;

7. In 2014 she enrolled in seven courses and only passed two courses;

8. In February 2015, Macquarie University excluded her from further enrolment. The plaintiff appealed against her exclusion and was told in July 2015 by the University that her appeal had been unsuccessful;

9. In about March 2015 the plaintiff started work as an administrative assistant/receptionist in a chiropractic centre and worked there three days a week. In about July 2015 she found further part-time work at an accountant’s office. At the accountant’s office, another employee, when told about the plaintiff’s car accident, recommended that she put in a claim and referred her to Mr Stephen Smith, solicitor, for advice. The employee gave the plaintiff Mr Smith’s details;

10. On 19 June 2015 the plaintiff telephoned Mr Smith and told him about the accident. Mr Smith advised the plaintiff that a claim should be made within six months of the date of the accident and forwarded the plaintiff a motor accident medical certificate form for completion. The plaintiff states in her affidavit (paragraph 26) that this was the first time that she had been advised that the claim must be made within six months of the date of the accident;

11. The plaintiff appeared to take no action in relation to the matter between 19 June 2015 and 19 August 2015 due to pressures of work. On 19 August 2015 she attended the Blue Cross Medical Centre at Kingsgrove to complete the medical certificate and was advised to see the doctor that treated her in 2013;

12. On 20 August 2015 the plaintiff saw Mr Smith, solicitor, in conference to complete the claim form;

13. On 20 August 2015 the claim form was sent by Mr Smith by facsimile to the insurer NRMA;

14. By letter dated 31 August 2015, Ms L Westaway on behalf of NRMA Insurance acknowledged receipt of the claim form and requested from Mr Smith a full and satisfactory explanation for the plaintiff’s delay in making the claim. Ms Westaway was located in Sydney;

15. This request was repeated in a letter to the plaintiff by NRMA Insurance from Ms Westaway also on 31 August 2015;

16. By letter dated 7 September 2015, Mr Smith stated to the plaintiff as follows:

“As discussed, your claim has been made late ie. not within six (6) months of the date of the accident. As such you are obliged to provide a full and satisfactory explanation for the delay in making a claim.

This explanation must include a full chronology of events since the date of your accident.

Would you please let me have a draft of your explanation for the delay in making the claim.”;

17. There were delays in the plaintiff attending to the task because of illness;

18. On 22 September 2015 Mr Smith received a copy of the police report in relation to the accident. Also on that date he wrote to the plaintiff by letter asking her to urgently return the medical certificate so that it could be served upon the insurer. The letter continued:

“Further we need to see you in conference to take instructions to provide a full and satisfactory explanation for the delay in making the claim. We await your urgent instructions.”;

19. By email dated 21 October 2015, the plaintiff indicated that she was in the process of getting the medical certificate and said that she had been “caught up with work unfortunately”;

20. A medical certificate was provided by the plaintiff to Mr Smith and he served that on Ms Westaway at NRMA by email dated 22 October 2015. At this time the plaintiff was working in two part-time jobs. She was also attending medical appointments in relation to her injuries, particularly her eye injuries;

21. The plaintiff provided affidavit evidence in relation to difficulties she had in coping with her injuries and her university course. On 12 June 2013 she registered with the Disability Care Service at Macquarie University as she was having trouble coping after the motor vehicle accident. On 13 July 2013 as she was not coping she sought to withdraw from her university course. In December 2013 she said she was finding it hard to focus and had headaches from the motor vehicle accident which were affecting her studies. In January 2014 she again applied to withdraw from her course due to her injuries. By May 2014 she was seeing her doctor because of stress she was experiencing. By August 2014 she was receiving counselling at Macquarie University through the Disability Care Service. In September 2014 she saw her general practitioner complaining of stress. On 22 November 2014 she saw her general practitioner for depression and anxiety and was provided with counselling;

22. The plaintiff had been engaged and was due to be married in April 2015. In February 2015 she broke up with her fiancé. She states that a major reason for the breakup was that by this stage she was emotionally not feeling well and was not coping;

23. The plaintiff says that in July 2015 her family split up and her stepmother moved out with her stepsiblings to live separately to her father and the plaintiff’s biological siblings. The plaintiff said that things had been bad in the house for some considerable period prior to July 2015. Thereafter the plaintiff had to “step up” and become a mother to her younger sister who was 14 at the time and also to look after her younger brother who was 17 and undertaking the Higher School Certificate. The plaintiff describes her position at the time as follows:

“It was a very difficult time for me. I was trying to hold down a job often working six days a week, I was emotionally not well, I was looking after everyone else and struggling a lot. I couldn’t deal with my own issues at the time. It was mentally draining time for me”;

24. On 19 August 2015 the plaintiff saw her general practitioner complaining of depression and stress and was put on a health treatment plan;

25. On 5 November 2015 Mr Smith saw the plaintiff in conference to take further instructions from her including instructions to provide a full and satisfactory explanation for the delay in making the claim. Mr Smith gives evidence that at that conference the plaintiff instructed that she had been struggling at university and had not been able to continue with her studies because of the motor accident. She further instructed Mr Smith that her relationship had broken down and that there had been problems at home for some time;

26. A statement from the plaintiff explaining the delay was then prepared. On 11 December 2015 Mr Smith sent a copy of the plaintiff’s explanation for the delay in making the claim to Ms Westaway by way of email. The email from Mr Smith attached a statement of the plaintiff which was not signed but was dated 11 December 2015;

27. There was various correspondence between Mr Smith and Ms Westaway of NRMA Insurance in December 2015;

28. On 21 December 2015, Mr Smith received an email from Ms T Mitsis from NRMA Insurance, Brisbane office, to the following effect:

“I advise this claim is now being handled by myself and also the correspondence needs to be sent to the address below.

I refer to previous correspondence in this matter. We have not received your client’s response to our letter dated 31 August 2015. Your client has not provided a full and satisfactory explanation for the delay in making the claim. Your client’s claim remains non-compliant.

Please provide a signed statutory declaration containing a full chronology since the date of the accident and the reasons for your client’s failure to make a claim within the legislated time frame”;

29. Thereafter, Ms Mitsis was the relevant officer within NRMA for the plaintiff’s claim.

30. In paragraph 31 of his affidavit, Mr Smith said that following receiving the 21 December 2015 email from Ms Mitsis the following occurred:

“After receiving emails and correspondence from Tia Mitsis for the insurer, I contacted her to discuss the matter. I advised Tia Mitsis that the plaintiff had provided an explanation for the delay in making the claim.”;

31. By letter dated 21 December 2015, NRMA Insurance wrote to Mr Smith. The letter denied liability for the plaintiff’s claim. It included the following:

“We deny liability as we do not agree that your client complied with all necessary procedural steps because your client’s personal injury claim form was lodged more than six months after the accident.

We have not received a full and satisfactory explanation as addressed in our letter dated 31 August 2015.”;

32. On 20 January 2016 an application was made to the Medical Assessment Service for assessment of a permanent impairment dispute;

33. On 20 April 2016 Mr Smith again spoke to the new claims officer, Ms Mitsis. He states that in this conversation he again confirmed “that the plaintiff had previously provided an explanation for the delay in making the claim. A further copy of the plaintiff’s explanation for the delay in making the claim was forwarded to NRMA via email dated 20 April 2016” (paragraph 37). The email referred to included the following: “Please see attached the claimant’s explanation for the delay in making the claim served last year”;

34. On 26 May 2016 Assessor Dr Harry Stern assessed the plaintiff with respect to her right eye injury and assessed the impairment as being 24% with respect to that injury;

35. In June 2016 the plaintiff was assessed for whole person impairment in relation to post-traumatic stress disorder and depression at 7%;

36. Dr Michael Prior in his report as part of the certificate indicated that the plaintiff had described an immediate onset of anxiety symptoms following the accident which were at their maximum extent for a period of one year after the onset. The plaintiff had indicated that her symptoms had never fully remitted and had been at the then current level of severity since approximately early 2016. The plaintiff described nightmares of the car accident, intrusive and distressing recollections of the accident, considerable crying and that she did not see a future for herself. She indicated that her sleep was affected. She also referred to the breakup of her engagement and that soon after it was broken up her family fell apart and her stepmother moved out. As indicated in the plaintiff’s affidavit, this occurred in July 2015;

37. The plaintiff had also been seeing a psychologist since February 2016. The notes of the psychologist, Dr Joseph D’Silva, indicated that the plaintiff had felt low and had lost confidence because she could not continue studying due to issues from the accident. The plaintiff perceived herself as “nothing but a failure” in the light of being a very good student at high school. Entries in Dr D’Silva’s notes for April, August, September and October 2016 show that the plaintiff has suffered from ongoing psychological symptoms;

38. Notes from Macquarie University’s Disability Care Service establish that the plaintiff had been complaining about difficulties with her studies, conflict between her parents and her fiancé, self-confidence issues and her injuries from June 2013 to at least August 2014.

10. The plaintiff was cross-examined in relation to her affidavit. It was put to her that she must have been aware that she had the right to make a claim against the defendant in the light of her view that she had not been at fault. It was also put to her that she could have sought advice in relation to her position, including seeking advice from her father and step-mother. It was suggested that she may well have heard radio advertisements advertising the services of lawyers in relation to motor accidents.

10. The plaintiff said that she had not heard any such advertisements, that she listened to CDs, and that she was not aware that she had a right to make a claim until she spoke to the employee at the accountancy firm in mid-2015.

11. Much was made of the fact that the plaintiff did not refer to her starting date at the accountancy firm in her affidavit and that her oral evidence was that she had started with the firm in “about July 2015” whereas the evidence was that she had made a call to Mr Smith after being made aware of the right to make a claim on 19 June 2015.

12. It was submitted by counsel for the defendant that the plaintiff’s oral evidence was obviously wrong and this reflected poorly on her recollection and credit as she could not have called Mr Smith on 19 June 2015 until she had been given his details by the employee at the accountancy firm where the plaintiff says she did not commence until “about July 2015”.

13. I do not regard this as a convincing attack on the plaintiff’s credit. In my view evidence that the plaintiff started at the accountancy firm in “about July 2015” would be consistent with starting there in May or June of 2015.

14. Overall, the plaintiff impressed me as an honest witness. She appeared as a shy and reserved woman who was unworldly and with little, if any, knowledge of legal and insurance matters. I assessed her carefully when she gave her evidence and I accept her evidence which, in my view, was given truthfully and honestly.

Submissions for the defendant

16. The plaintiff’s legal representatives had given notice to the defendant that she was going to argue that the insurer had lost the right to reject a late claim on the ground of delay as the insurer had not within two months after receiving an explanation for the delay from Mr Smith on behalf of the plaintiff, rejected the explanation: Section 73(4)(b) of MACA.

17. It was submitted in summary on behalf of the defendant as follows:

1. The letter from NRMA Insurance dated 21 December 2015 (Smith affidavit page 42) was sufficient to be a denial within the relevant two month period that the explanation provided by the plaintiff was full and satisfactory;

2. Further, the explanation provided by the plaintiff was neither “full” nor “satisfactory”. It was submitted that there were gaps in the plaintiff’s explanation and she herself had not provided a full account of the period from the date of accident to the date of providing her explanation.

18. The defendant also provided detailed written submissions on the relevant legal principles.

Plaintiff’s submissions

19. Submissions were made on behalf of the plaintiff in summary as follows:

1. Section 73(4)(b) of MACA applied. The insurer lost the right to reject the late claim of the plaintiff because the plaintiff had provided an explanation for the delay through Mr Smith and by his email dated 11 December 2015 to Ms Westaway of NRMA. The fact the statement was not signed was irrelevant as it was sent through Mr Smith. The section requires the insurer to specifically reject the explanation provided. The 21 December 2015 letter from the NRMA was a general letter and did not amount to a rejection of the particular explanation provided. That was made clear by looking at Ms Mitsis’ email dated 21 December 2015 at page 37 of Mr Smith’s affidavit and the general nature of the 21 December 2015 letter. It was also established by the 20 April 2016 email from Mr Smith to Ms Mitsis enclosing a further copy of the statement from the plaintiff.

2. It was submitted that it should be assumed that Ms Westaway had received the email dated 11 December 2015 due to Section 161(1)(d) of the Evidence Act 1995 (NSW). Further, there was no evidence sufficient to raise doubt about the presumption of receipt by NRMA;

3. The explanation of the plaintiff was full in that it covered the relevant periods when looked at in the totality of the evidence;

4. The explanation was “satisfactory”. A reasonable person in the plaintiff’s position having regard to her disabilities arising from the accident including the serious eye injury and the depression and other psychological problems would have been justified in experiencing the same delay as had occurred.

Defendant’s responsive submissions

20. The defendant in his responsive submissions through his counsel submitted, in summary, as follows:

1. The email letter from Ms Mitsis to Mr Smith dated 21 December 2015 was evidence which was sufficient to raise a doubt about the presumption arising from Section 161(1)(d) of the Evidence Act being that Ms Westaway had received the 11 December 2015 explanation for the delay. Reliance was placed on the sentence: “we have not received your client’s response to our letter dated 31 August 2015”;

2. The plaintiff herself has not provided a full and satisfactory explanation for the delay. The word “full” in full and satisfactory explanation means that the explanation must be set out in detail and it is not sufficient that the court should be asked to draw inferences from correspondence at least where that is not obvious: Ellis v Reko Pty Ltd [2010] NSWCA 319 at [19]. The plaintiff carries the onus of satisfying the court that she has fulfilled the requirements of Section 66 of MACA and that the explanation proffered by her is both full and satisfactory: Smith v Grant [2006] NSWCA 244 at [14]. It was submitted that the case of Figliuzzi v Yonan [2005] NSWCA 290 is relevant in particular, the defendant relying on paragraph [102] of the judgment of Justice Tobias where his Honour stated as follows:

“[102]The difficulty with this approach in my view is that it asks the wrong question. It is not a question of whether the belief held by the respondent was other than bona fide or, for that matter, whether in the particular circumstances it was reasonably held. The correct question is whether, holding that belief, the reasonable person in the position of the respondent would have simply left the matter at that, ignored the possibility that the belief may have been wrong and, notwithstanding knowledge that CTP insurance was available to compensate those who had sustained injuries in motor vehicle accidents due to the negligent conduct of another driver, would have considered it unnecessary to make the very basic enquiry of a qualified person as to whether the belief was justified.”

Applicable legal principles

21. In Ellis v Reko Pty Ltd [2010] NSWCA 319 Young JA (with whom Beazley JA and Handley AJA agreed) stated as follows at paragraphs [19]-[21]:

“[19] The word “full” is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious.

[20] Mr Goodridge puts that the authorities such as Walker v Howard[2009] NSWCA 408; 55 MVR 9 make it clear that it is not every detail, no matter how significant, that must be put in the full and substantial explanation.

[21] However, whilst there may be some nice distinctions between what falls one side of the line or the other, one must, to my mind, at least give more details in this case, than this applicant did.”

22. In the present case the defendant was the moving party on the motion. However, Section 73(7) of MACA provides in an application to have the proceedings on a late claim dismissed on the ground of delay, that the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim. This seems to place some onus on the plaintiff in the sense that to succeed resisting the claim being dismissed she was required to provide an explanation which fulfilled the requirements of Section 66 of MACA. The position is similar to the discussion in Smith v Grant [2006] NSWCA 244 at [12]-[14]. It was effectively up to the plaintiff to provide the relevant explanation.

23. The explanation provided by the plaintiff must be full, not “pick and choose” the information to be given relevant to the delay. It must be complete: see Buller v Black [2003] NSWCA 45 per Mason P at [42]-[46]. Although his Honour dissented in the result in that case there appears to have been agreement with the majority in relation to the principles applicable.

24. The full account required by Section 73 of MACA is not limited to the plaintiff personally where the plaintiff cannot provide that explanation but may require the delay to be explained by legal practitioners acting on behalf of the plaintiff: Walker v Howard [2009] NSWCA 408 at [72] and [106].

25. In Nominal Defendant v Browne [2013] NSWCA 197, Basten JA (with whom Barrett and Gleeson JJA agreed) stated as follows in paragraphs [23]-[24]:

“[23] An explanation is not a “full” explanation simply because it recounts all that the claimant can remember three years later. One would expect both solicitors and counsel to have some note of the instructions given and the advice relayed. In this case her lack of recollection is understandable, but the explanation given by her was not “full” in the absence of any attempt to obtain further information from her own solicitors and counsel.

[24] The primary focus of Walker v Howard, a case involving a claimant with serious brain damage who was not in a position to look after his own interests, was upon the second limb of the test, namely whether the explanation was “satisfactory”. That element cannot be assessed if the explanation is incomplete. It nevertheless affirms the need to look to the actions of persons other than the claimant where those actions may form part of the position or circumstances of the claimant.”

26. In Karambelas v Zaknic (No 2) [2014] NSWCA 433 Meagher JA (with whom Basten JA and Simpson J agreed) stated as follows at paragraphs [16]-[17]:

“[16] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. First, it must include 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". In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing.

[17] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made.”

27. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA (with whom Leeming JA and McCallum J agreed) stated as follows in paragraphs [15]-[19]:

“[15] An explanation is “full and satisfactory” within s 66(2) if it satisfies two requirements. These were explained by Meagher JA (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16].

[16] First, it must include 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”. In the case of late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic’s explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014.

[17] The purpose of the requirement that the explanation be full, and the necessity to set out fully “the conduct, including the actions, knowledge and belief of the claimant”, is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. It is for this reason that it has been said that the applicant for leave cannot “pick and choose” the information to be given relevant to the delay and which the Court has to decide is “satisfactory”: Mancini v Thompson at [46].

[18] Secondly, the explanation must be such that a reasonable person in the position of the claimant “would have been justified in experiencing the same delay”. The “delay” is the period during which the claimant was late commencing proceedings more than three years after the date of the motor accident, subject to the effect of s 109(2) which stops time running where a claim has been referred to the Authority for assessment under Pt 4.4. Here it is common ground that the effect of s 109(2) was that the relevant delay was almost 16 weeks.

[19] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17].”

28. Accordingly, in order to be a “full and satisfactory explanation” within Section 66(2) of MACA:

1. The explanation must include 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. That is the date on which the explanation is first provided. That would be in the present case between 27 April 2013 and 11 December 2015;

2. The court must then evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant for leave cannot “pick and choose” the information to be given relevant to the delay in which the court has to decide is satisfactory;

3. The explanation must be such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay; that includes a reasonable person with the same characteristics and injuries as the plaintiff has received;

4. The delay is the period during which the claimant was late commencing proceedings being the period between six months after the accident which is 27 October 2013 and 20 August 2015 when the claim was first made through the form being sent to the insurer;

5. The court must make an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant’s particular position, the delay which has occurred was reasonably justifiable.

Consideration

29. The court’s assessment of the explanation and a reasonable person in the plaintiff’s position must in my view take into account the following matters:

1. The plaintiff was 19 at the time of the accident and at the date which was six months after the accident;

2. Although the plaintiff was licenced to drive a motor vehicle the car she drove in the accident was that of her stepmother. There was no evidence that the plaintiff had ever owned a motor vehicle or was familiar with the insurance requirements and rights in relation to a motor vehicle;

3. The plaintiff appears to be a shy and reserved woman and, although bright as she attended university, rather unworldly;

4. The accident in which the plaintiff was involved was a serious one and as well as allegedly injuring other parts of her body, the evidence shows the plaintiff to have seriously injured her right eye with the result that she has limited vision in that eye;

5. The plaintiff at all relevant times has been very concerned in relation to her loss of vision, which is understandable. She emphasised this during cross-examination. The evidence shows that she attended many consultations with doctors in relation to the loss of vision in her eye;

6. The plaintiff says that at no time prior to June 2015 was she aware that she could bring a claim in relation to the accident, although she was injured in the accident, was taken to hospital, the defendant was taken to hospital and the defendant claimed she was at fault. Having seen the plaintiff give evidence and having seen her in cross-examination, I accept this evidence from the plaintiff;

7. It was put to the plaintiff that she must have realised she could have made a claim in those circumstances. The plaintiff denied this and said that she was focussed on her eye injury. I again accept this evidence;

8. The evidence shows that the plaintiff began to suffer from anxiety problems soon after the accident which have continued in various degrees. The plaintiff also suffers from depression;

9. Within the relatively short period of time from early 2015 to July 2015, the plaintiff was excluded from her course at Macquarie University, had her engagement broken off mutually due to her emotional problems and inability to cope, had her immediate family split up in July 2015 with her stepmother and stepsiblings leaving the house, had imposed upon her the job of maintaining her father’s house and looking after the younger brother and sister and losing her appeal against exclusion from her university course, all whilst dealing with her eye injury and other complaints and her psychological problems;

10. The above is the context in which a reasonable person in the position of the plaintiff must be considered in relation to the explanation provided.

The Section 73(4)(b) of MACA argument

30. The issue for the court is whether NRMA Insurance as the relevant insurer lost the right to reject a late claim on the ground of delay because it did not, within two months after receiving an explanation from the plaintiff for the delay, reject the explanation.

31. It should be noted that the defendant:

1. Did not seek to cross-examine Mr Smith in relation to his affidavit, particularly paragraphs 31 and 37;

2. Did not seek an adjournment to lead evidence from Ms Westaway, from the Sydney office of NRMA Insurance, or Ms Mitsis, from the Brisbane office of NRMA Insurance, in relation to the receipt of the plaintiff’s explanation attached to the email from Mr Smith to Ms Westaway dated 11 December 2015. The matter therefore has to be determined on the evidence before the court including the contents of the affidavit of Mr Smith and its annexures.

32. In my view, the presumption which arises from Section 161(1)(d) of the Evidence Act in relation to Mr Smith’s email dated 11 December 2015 (Smith annexures page 29) is that the email with the plaintiff’s explanation was received by Ms Westaway of NRMA at the destination to which it appears from the document to have been sent meaning Ms Westaway’s computer email address.

33. The defendant argues that evidence sufficient to raise doubt about the presumption has been adduced by virtue of Ms Mitsis’ email dated 21 December 2015 which suggests that “we” (being, it is submitted, NRMA) had not received the plaintiff’s response to NRMA’s letter dated 31 August 2015. It is submitted that this means that the presumption in Section 161(1)(d) of the Evidence Act is inapplicable.

32. In my view, that submission should be rejected for the following reasons:

1. The 11 December 2015 email from Mr Smith was forwarded to Ms Westaway who was located in Sydney. Therefore, presumably, the email was received on her computer address at her computer in Sydney. Ms Westaway had been identified as the relevant claims officer in the 31 August 2015 letters from her to Mr Smith and the plaintiff (Smith annexures pages 16-19). It should therefore be assumed that NRMA Insurance had identified Ms Westaway as the relevant officer within NRMA Insurance to deal with the plaintiff’s claim;

2. The email dated 11 December 2015 appears to have been sent to the correct email address of Ms Westaway;

3. The email dated 21 December 2015 from Ms Mitsis asserts a failure to respond to the letter dated 31 August 2015. However this has been sent from Ms Mitsis in the Brisbane office of NRMA Insurance. There is no evidence, nor can the court properly infer, that Ms Mitsis has had access to the emails on Ms Westaway’s computer or that emails sent and received by Ms Westaway had been located on a physical or general email file. I am not willing to draw an inference from the sentence “we have not received your client’s response to our letter dated 31 August 2015” in Ms Mitsis’ 21 December 2015 email that the “we” refers to NRMA as a whole or that she had access to Ms Westaway’s computer correspondence or that a doubt has been raised as to the receipt of the email. Presumably both Ms Westaway and Ms Mitsis could have been called on this issue and the matter was raised by the court at the beginning of the hearing and before affidavits were read;

4. The 21 December 2015 letter from Ms Mitsis asserted that NRMA had not received a full and satisfactory explanation as addressed in NRMA’s letter dated 31 August 2015. However, it did not expressly reject the explanation which had been provided by email to Ms Westaway in the 11 December 2015 email. I do not read the 21 December letter as referring to the explanation provided in the 11 December 2015 email to Ms Westaway;

5. The 20 April 2016 email seems to be providing a further copy of the explanation. At no stage did Ms Mitsis assert that this was the first time NRMA had seen the explanation on the evidence;

6. Mr Smith’s affidavit in paragraphs 31 and 37 suggests that Mr Smith explained to Ms Mitsis that the plaintiff had already provided an explanation for the delay in making the claim. Mr Smith was not cross-examined in relation to these paragraphs in the affidavit. I therefore conclude that Ms Westaway on behalf of NRMA Insurance did receive an explanation from Mr Smith on behalf of the plaintiff on 11 December 2015 and NRMA did not within two months after receiving that explanation reject the explanation. Consequently, I find that NRMA and the defendant have lost the right to reject the plaintiff’s claim on the grounds of delay within Section 73(4)(b) of MACA. There was no rejection of the explanation which was provided. The explanation appears to have been received by Ms Westaway and may not have been brought to the attention of Ms Mitsis or, if it was within a physical or computer file held by Ms Mitsis, to have been read by her.

35. Accordingly, the defendant’s Motion should be dismissed on this ground.

Whether a full explanation has been provided

36. The next question is whether the plaintiff has provided a “full” account of her actions, knowledge and belief from the date of the accident until the date of first providing the explanation on 11 December 2015. In my view the “full explanation” must be provided by the plaintiff, and where relevant her legal representatives on her behalf. It is not expected that the plaintiff would have had a detailed account of her dealings with Mr Smith from 2015-2016. Mr Smith has provided that information in detail in his affidavit which annexes voluminous relevant documentation.

37. In my view the plaintiff has provided a full explanation in relation to the delay from the date of the accident until the date of the first explanation on 11 December 2015 for the following reasons:

1. I accept the plaintiff that prior to 19 June 2015 she was not aware that the claim in relation to the accident must be made within six months of the date of the accident;

2. The court must therefore consider the period from 19 June 2015 to 11 December 2015;

3. In relation to that period, Mr Smith’s 19 June 2015 email to the plaintiff gave her proper advice including that there was a “need to see her urgently in conference to help [her] complete a claim form”. The plaintiff did not contact Mr Smith again until an email dated 18 August 2015 in which she asserted that she was “quite late [having] been so busy at work”. That in itself is a full explanation leaving aside the question whether it is satisfactory. However, the plaintiff has expanded her explanation in her chronology in paragraph 35 of her affidavit particularly in paragraph 35(l)-(m) in showing the extreme pressures that the plaintiff was under in and around July-August 2015. This paragraph shows the intense domestic pressures on the plaintiff and the fact that she was maintaining her father’s house looking after her younger siblings while holding down a job often working six days a week. The documents annexed to Mr Smith’s affidavit confirm the ongoing emotional and psychological problems which the plaintiff had at this time;

4. The evidence shows that after August 2015 the plaintiff was sick, had been busy at work, was chasing up a medical certificate from the treating doctor in 2013, was attending medical appointments, had a demanding family life with heavy domestic responsibilities and was dealing with Mr Smith’s requirements for her case.

38. Taking into account all of this evidence, in my view the explanation provided by the plaintiff to the court whilst not perfect is “full” within section 73(7).

Whether the explanation provided is “satisfactory”

39. The remaining issue is whether the explanation provided by the plaintiff is such that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay being from six months after the accident until 20 August 2015 when the claim was first made.

40. The hypothetical reasonable person in the position of the plaintiff is taken to have the injuries which the plaintiff has arising out of the accident. Of course the plaintiff in the present case did not have the catastrophic injuries which the plaintiff had in Walker v Howard [2009] NSWCA 408; 78 NSWLR 161. The test requires that the characteristics and circumstances of the claimant must be taken into account when applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22]-[23]. I have set out above in the facts, the full circumstances relating to the plaintiff.

41. I take into account the plaintiff’s age, her course of study, her injuries in the accident, the psychological problems which she developed soon after the accident, her concern in relation to the loss of vision in her right eye, her continuing inability to cope at university and her withdrawal from units and her failure in other units, the breakup of her engagement, the disintegration of her immediate family, the burdens placed on her to look after her younger siblings, and the burdens of her two part-time jobs. Taking all of these matters into account, I accept the submission on behalf of counsel for the plaintiff that the plaintiff’s explanation for the delay is satisfactory in the circumstances.

42. I expressly find that a reasonable person in the position of the plaintiff having regard to all of the above factors would have been justified in experiencing the same delay. The extraordinary accumulation of negative matters affecting the plaintiff at the time must be taken into account in assessing the conduct of a reasonable person in the position of the plaintiff. The plaintiff had effectively lost her chosen university career, her proposed marriage and her existing family in a short period of time while coping with serious physical and psychological injuries.

43. Taking into account all of these matters I am satisfied that a full and satisfactory explanation has been provided by the plaintiff.

44. Accordingly, I am satisfied that the plaintiff has provided a full and satisfactory explanation for the delay in making her claim within Section 73(7) of MACA.

45. I therefore make the following orders:

1. That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed.

2. That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016;

3. The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

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Decision last updated: 16 December 2016