Dahdah v Witte

[2023] NSWCA 304

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dahdah v Witte [2023] NSWCA 304

Hearing dates:

10 August 2023

Decision date:

13 December 2023

Before:

White JA at [1];
Mitchelmore JA at [114];
Griffiths AJA at [115]

Decision:

(1) Grant the applicant leave to appeal.

(2) Direct that within seven days the applicant file a notice of appeal in the terms of the draft notice of appeal at tab 4 of the White Folder.

(3) Dispense with service of the notice of appeal.

(4) Allow the appeal.

(5) Set aside the orders of the court below made on 29 November 2022 dismissing the appellant’s notice of motion dated 25 July 2022 with costs and dismissing the proceedings with costs.

(6) In lieu thereof order that:

(a) the respondent’s notice of motion dated 12 July 2022 be dismissed with costs;

(b) the appellant have leave to commence proceedings 2022/00160083 nunc pro tunc;

(c) the respondent pay the appellant’s costs of the appellant’s notice of motion dated 25 July 2022.

(7) The respondent pay the appellant’s costs of the application for leave to appeal, and the appeal.

(8) Remit the proceedings to the District Court.

Catchwords:

TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation” for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant’s explanation of reliance on respondent’s insurer and ignorance of right to make claim “full and satisfactory” – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide “full and satisfactory explanation” – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act

TORTS – Motor vehicle accident– Late claims – Requirement that “total damages of all kinds likely to be awarded” to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant’s injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act

WORDS AND PHRASES – “Full and satisfactory explanation” – “Likely to be awarded”

Legislation Cited:

Motor Accidents Act 1988 (NSW)

Motor Accidents Compensation Act 1999 (NSW), ss 5, 66, 72, 73, 80, 82, 94, 95, 108, 109, 134, 146

Motor Accidents Compensation (Determination of Loss) Amendment Order 2016 (NSW), cl 3(2)

Cases Cited:

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39

Conkey & Sons Ltd v Miller (1977) 51 ALJR 583

Corporate AffairsCommission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28

Diaz v Truong [2002] NSWCA 265; (2002) 37 MVR 158

Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334

Eades v Gunestepe [2012] NSWCA 204; (2012) 61 MVR 328

Figliuzzi v Yonan [2005] NSWCA 290

Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646; [2019] HCA 26

Harika v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332

Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456

Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127

Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394

Russo v Aiello [2001] NSWCA 306; (2001) 34 MVR 234

Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195

Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408

Wentworth v Lloyd (1864) 10 HLC 589; 11 ER 1154

Category:

Principal judgment

Parties:

John Dahdah (Applicant/Appellant)
Trevor Witte (Respondent)

Representation:

Counsel:
F C Corsaro SC with F F F Salama (Applicant/Appellant)
J Catsanos SC with M P Nesbeth and G I Adams (Respondent)

Solicitors:
Memcorp Lawyers (Applicant/Appellant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2023/107603

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

29 November 2022

Before:

Fitzsimmons SC DCJ

File Number(s):

2022/00160083

HEADNOTE

[This headnote is not to be read as part of the judgment]

Section 109(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) (the “Act”) imposes a time limit of three years for the commencement of proceedings as of right in respect of a motor accident claim, running from the date of the motor accident to which the claim relates. Commencement of proceedings outside that period requires the grant of leave by the court in which the proceedings were to be taken. Any such grant is conditioned by s 109(3) on: (a) the claimant providing a “full and satisfactory explanation to the court for the delay”; and, (b) a finding that the total amount of damages “likely to be awarded to the claimant if the claim succeeds” exceeds the prescribed threshold.

On 18 April 2017, the applicant, Mr John Dahdah, was involved in a motor accident caused by the negligence of the respondent, Mr Trevor Witte. As a result of the accident, Mr Dahdah alleged that he suffered from increasingly severe neck pain and stiffness, as well as radiating numbness to his hands. When his symptoms did not resolve as he had expected, Mr Dahdah informed his general practitioner of the accident on 24 October 2019. On 2 November 2019, he lodged a personal injury claim form with Mr Witte’s insurer (“GIO”). GIO initially rejected the claim on the basis that no full and satisfactory explanation had been provided for its late lodgment. Mr Dahdah provided information to explain the delay. On 12 February 2020, GIO accepted both liability for the accident on behalf of its insured, and Mr Dahdah’s explanation for making his claim under the Act outside of the six-month period prescribed by s 73(1) of the Act. Mr Dahdah thereafter stood by while GIO gathered information with a view to making a reasonable offer of settlement.

Following receipt on 19 June 2020 of a medical report commissioned by GIO, Mr Dahdah formed the view that he should obtain legal advice. On 5 July 2020, being after the time prescribed by s 109(1) of the Act had elapsed, Mr Dahdah retained his son, Mr James Dahdah, a practising solicitor, to provide him with legal advice. On his father’s instructions, James Dahdah rejected an offer of settlement made by GIO on 8 March 2021 and – after similarly rejecting a determination of the Personal Injury Commission on 5 May 2022 – commenced proceedings in the District Court on 2 June 2022. The commencement, and continuation, of those proceedings, accordingly, required a grant of leave under s 109(3) of the Act.

The primary judge refused to grant leave to the applicant to commence proceedings against the respondent out of time, on the basis that the applicant had not provided a full and satisfactory explanation – within the meaning of s 66(2) of the Act – for his delay in doing so. In this respect, the primary judge held that a reasonable person in the position of Mr Dahdah would not have been justified in experiencing the same delay, in circumstances where Mr Dahdah’s son was a practising solicitor. The primary judge further held that a claim of client legal privilege maintained by Mr Dahdah over the contents of an email by which he retained his son to act for him was incompatible with his obligation to provide a full and satisfactory explanation for his delay in commencing proceedings. No findings were made as to the total amount of damages likely to be awarded to Mr Dahdah in the event that his claim against Mr Witte should succeed, nor on the conflicting medical reports adduced by Mr Dahdah and GIO.

On the applicant’s application for leave to appeal, the issues before the Court were:

1. Whether the primary judge had erred in finding that the explanation proffered by the applicant was not “full and satisfactory” by reason of the fact that the applicant’s son was a practising solicitor and by reason of the fact that the applicant had not waived client legal privilege over certain communications with his son; and

2. Whether, on the basis of the medical reports and accounting evidence adduced by the parties, the total amount of damages likely to be awarded to Mr Dahdah should his claim succeed exceeds the threshold prescribed by s 109(3)(b) of the Act.

The Court (per White JA, Mitchelmore JA and Griffiths AJA agreeing), granting the applicant leave to appeal and allowing the appeal, held:

As to issue (i):

1. An explanation for a delay in commencing a motor accident claim will be a “full” explanation if it provides a complete account of the actions, knowledge and belief or beliefs of the claimant from the date of the accident until the date of providing the explanation. Such an explanation may be “full” even though it does not recount in perfect detail every moment that has elapsed within that period. In this case, the unchallenged accounts of Mr Dahdah and his son as to their actions, knowledge, and beliefs throughout the period amounted to a “full” explanation for the delay in commencing proceedings: [48]-[57] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).

Diaz v Truong [2002] NSWCA 265; (2002) 37 MVR 158; Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408; Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127; Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334; Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394, followed.

1. An explanation for a delay in commencing a motor accident claim will be a “satisfactory” explanation if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay. In the circumstances of this case, many reasonable persons in Mr Dahdah’s position would have considered, as Mr Dahdah did, that as GIO had accepted the explanation for delay in making the claim and had foreshadowed the making of an offer of settlement, they need do no more than wait for the offer to arrive, notwithstanding the fact that Mr Dahdah’s son was a practising solicitor: [58]-[68] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).

Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456; Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394, followed.

Figliuzzi v Yonan [2005] NSWCA 290, doubted.

Russo v Aiello [2001] NSWCA 306; (2001) 34 MVR 234, cited.

1. Nothing in ss 66, 73, or 109 of the Act expressly or impliedly abrogates a claimant’s right to assert client legal privilege in respect of communications passing between the claimant and his or her legal representatives. Accordingly, an explanation proffered by a claimant may be “full and satisfactory” notwithstanding that client legal privilege is claimed over certain communications with his or her lawyers: [45]-[46] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).

Baker v Campbell (1983) 153 CLR 52; [1983] HCA 39; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28; Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646; [2019] HCA 26, applied.

Wentworth v Lloyd (1864) 10 HLC 589; 11 ER 1154, cited.

As to issue (ii):

1. The requirement contained in s 109(3)(b) of the Act that the total damages “likely to be awarded” on success of the claim exceed the prescribed the threshold does not refer to a probability greater than 50%, but to a real or substantial chance that any damages so awarded will exceed the threshold. In this regard. While the Court need not always take a prospective claimant’s case at its highest, it should be slow to resolve an application for leave to commence proceedings out of time on the basis of medical reports adduced by an insurer or insured where they conflict with those adduced by the prospective claimant: [70]-[72] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).

Harika v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332; Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195; Eades v Gunestepe [2012] NSWCA 204; (2012) 61 MVR 328; Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334; Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394, followed.

1. Where neither the applicant nor any of the experts who provided reports for the applicant was cross-examined, the applicant’s evidence disclosed a real or substantial chance that he would receive more than the prescribed threshold were his action to succeed: [73]-[111] (White JA); [114] (Mitchelmore JA); [115] (Griffiths AJA).

JUDGMENT

1. WHITE JA: This is an application for leave to appeal from orders of the District Court (Fitzsimmons SC DCJ) dismissing a claim brought by the applicant, Mr John Dahdah, arising from injuries that he alleges he suffered in a motor vehicle collision caused by the negligence of the respondent, Mr Trevor Witte (John Dahdah v Trevor Witte (District Court (NSW), Fitzsimmons SC DCJ, 29 November 2022, unrep).

2. The application for leave to appeal was listed to be heard concurrently with the appeal if leave were granted.

3. The applicant’s claim falls to be determined in accordance with the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). Section 5 specifies the objects of the Act. These include the encouragement of early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities and to encourage the early resolution of compensation claims (s 5(1)(a) and (b)).

4. To give effect to these objects, Ch 4 lays down procedures for the making, handling, and resolution of claims arising from motor vehicle accidents in respect of which the vehicle has motor vehicle accident insurance cover. In the present case, the vehicle admittedly at fault was the subject of a policy of third-party insurance issued by an insurer trading as GIO.

5. Section 72(1) requires, in the circumstances of this case, that a claim be made within six months after the date of the motor accident by the giving of notice to the third-party insurer. Section 73 relevantly provides:

“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)    the Commission 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.

…”

6. The motor vehicle accident occurred on 18 April 2017. The applicant did not consult his general practitioner in relation to the injury allegedly sustained in the accident until 24 October 2019. He explained this on the basis that he expected that his symptoms, which he described, would resolve themselves. On 24 October 2019, the applicant’s general practitioner, Dr Samy Erian, prepared a medical certificate which is a required part of a personal injury claim form. The form was submitted to the NRMA, which was the insurer of the vehicle damaged in the collision. NRMA forwarded the form to GIO. The applicant was contacted by a representative of GIO, who provided him with a further personal injury claim form which he submitted to GIO on 2 November 2019.

7. On 14 November 2019, GIO rejected a request for payment of medical fees “at this time”. On the same date, by separate letter, GIO rejected the claim on the basis that no full and satisfactory explanation had been provided for its late lodgement. A further explanation for GIO’s consideration was invited.

8. The applicant deposed:

“91. On 14 November 2019, I received an email from Gaye [a claims adviser for GIO] and also a letter informing me the claim had been rejected and should I provide satisfactory information, the claim would be reviewed. I thereafter went about obtaining the information that GIO was requesting. It took some time. I again tried to do this myself and I did not seek any legal advice or help from anyone else. I thought after 14 November 2019 GIO would help me with everything I needed once I had provided them with the information they wanted.”

9. The applicant remained in contact with GIO over the coming months, and submitted further material to GIO for its consideration. On 12 February 2020, GIO wrote two letters to the applicant. In the first, it stated:

“Thank you for your full and satisfactory explanation received by GIO on 12 February 2020.

We accept your explanation for the delay in lodging the claim.

…”

10. In the second letter, GIO admitted liability. This meant that it admitted that its insured had breached his duty of care and was at fault and that the applicant had suffered injury, loss, or damage as a result of the insured’s negligence. GIO agreed to pay reasonable and necessary expenses for treatment of the injuries which related to the motor accident if pre-approved. It noted that the amount of compensation to be paid was still to be determined and that GIO would be gathering information about the claim so that it would be able to make a reasonable offer of settlement.

11. Section 80(1) of the Act provides that it is the insurer’s duty to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible. Section 82(1) requires the insurer to make a reasonable offer of settlement (unless the insurer wholly denies liability for the claim) within specified timeframes.

12. On 19 June 2020, GIO provided the applicant with a report of a Dr Murray Hyde Page dated 15 May 2020. Based on his review of the applicant’s medical files, Dr Hyde Page opined that the applicant did not suffer any significant injury in the motor vehicle accident and that his reported restrictions on working and ability to perform pre-accident home duties were due to prior and subsequent medical conditions unrelated to the accident.

13. The applicant deposed that, after receiving the report, Ms Gaye Small from the GIO, with whom he had been dealing in relation to his claim, had a telephone conversation with him in which she advised that GIO would like to make an offer of settlement of his claim and would send him a letter about it.

14. GIO made no settlement offer at that time. The applicant deposed that, on reading Dr Hyde Page’s report, he thought he should obtain legal advice about it.

15. Mr James Dahdah is the applicant’s son and a solicitor. On 5 July 2020, the applicant asked James Dahdah to provide him with legal advice. James Dahdah practises in commercial litigation and not personal injury litigation. He briefed counsel to provide additional advice and then took steps to obtain the applicant’s medical records.

10. On 11 November 2020, he organised for the applicant to be assessed by a Dr Assem at the earliest available appointment, which was on 27 January 2021. That appointment was cancelled by the doctor. On 15 January 2021, he sought further advice from counsel and set about making another appointment with another expert. He arranged for the applicant to attend upon a Dr Sheehan on 9 February 2021. Dr Sheehan provided reports on or about 19 February 2021. Dr Sheehan reported that, in his opinion, the trauma sustained by the applicant in the motor vehicle accident had caused him to suffer the following injuries:

“1.   Significant musculoligamentous strains/tears involving his cervical spine.

2.    An aggravation of pre-existing and immediately before his motor vehicle accident of 18 April 2017, extensive severe degenerative changes in his cervical spine.

3.    Probable additional cervical spine disc damage involving C3/4, C5/6 and C6/7 aggravating pre-existing pathology at those specific levels.”

17. Dr Sheehan predicted that the applicant would continue to suffer from increasingly incapacitating neck pain and stiffness throughout the rest of his life and that the injuries sustained from the motor vehicle accident would result in the acceleration of degenerative disease within his cervical spine. He opined that the applicant would need to retire altogether by the age of 65 (the applicant deposed that his intention had been to retire at 70).

18. Dr Sheehan’s reports were served on GIO on 17 March 2021.

19. In the meantime, on 8 March 2021, GIO issued an offer of settlement pursuant to s 82 of the Act. On the same day, GIO advised Mr James Dahdah:

“We attach our s 82 offer for your client’s consideration and also request your available dates to participate in a s 89A conference.

Should we not receive your response [within] 14 days, then we will proceed with filing a CARS2A application to refer the matter to the Personal Injury Commission for assessment.”

20. On 30 March 2021, GIO referred the applicant’s claim to the Personal Injury Commission. On 5 May 2022, the Personal Injury Commission delivered its award with respect to the applicant’s claim. The assessment was made under s 94 of the Act and would have specified an amount of damages. The assessment was binding on GIO but not on the claimant (s 95(2)). The Personal Injury Commission issued a certificate in respect of the claim.

21. On 2 June 2022, the applicant commenced proceedings in the District Court for damages.

22. Section 108 of the Act relevantly provides:

“108   Claims assessment or exemption pre-condition for commencement of court proceedings

(1) Subject to Division 3.2 of the Personal Injury Commission Act 2020, a claimant is not entitled to commence court proceedings against another person in respect of a claim unless—

…

(b) a certificate has been issued in respect of the claim under section 94 (Assessment of claims).

(2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim.”

23. Section 109 relevantly provides:

“109 Time limitations on commencement of court proceedings

(1)    A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after—

(a)    the date of the motor accident to which the claim relates, or

(b)    if the claim is made in respect of the death of a person—the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2)    Time does not run for the purposes of this section from the time that a claim has been referred to the Commission for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3)    The leave of the court must not be granted unless—

(a)    the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.”

24. The three year limitation period prescribed by s 109(1) expired on 18 April 2020.

25. Section 66 defines what is meant by a “full and satisfactory explanation”. That section is applicable both to s 73(1) and s 109(3)(a). Section 66(2) relevantly provides:

“(2) In this Chapter, a reference to a full and satisfactory explanation by a claimant 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 been justified in experiencing the same delay.”

26. The respondent filed a notice of motion seeking summary dismissal of the proceeding. The applicant filed a notice of motion seeking leave to commence the proceeding nunc pro tunc.

27. Both limbs of s 109(3) were in issue. As well as denying that the applicant had provided a full and satisfactory explanation to the Court for the delay in commencing the proceeding, GIO also denied that the total damages likely to be awarded to the claimant if his claim succeeded, would be not less than the amount specified in s 109(3)(b). This was 25% of the maximum amount that could be awarded for non-economic loss under s 134 of the Act, indexed in accordance with s 146 at the date of the collision (Motor Accidents Compensation (Determination of Loss) Amendment Order 2016 (NSW) cl 3(2)).

28. The primary judge dismissed the proceeding on the ground that the applicant had not given a full and satisfactory explanation for the delay as required by s 109(3)(a). No finding was made as to whether or not the applicant’s claim satisfied s 109(3)(b).

29. The applicant and Mr James Dahdah gave evidence by affidavit. Neither was cross-examined.

30. The applicant deposed that, when the accident occurred, he was driving a Toyota Hiace Van, which he did not own. It was damaged in the accident. He deposed that his son, Christopher, made a claim on NRMA which was the insurer of that vehicle. He deposed that his neck became sore and stiff in the hours after the accident and he also had a headache and a sore left shoulder. He took painkillers to relieve the pain. He had had a car accident in about 2006 which had not given him any longstanding issues and he had also experienced neck pain in 2013 and 2014 which had cleared up. His neck continued to be sore and the neck pain and stiffness increased over time but he managed this with Panadol. Later, he developed numbness to his hands of increasing frequency and he became increasingly troubled with persistent neck pain and stiffness. He also had left shoulder pain. He suffered other injuries before seeing Dr Erian on 24 October 2019. His shoulder pain resolved after a cortisone injection in about mid-September 2017. He deposed that:

“37. After the Accident and before I went to see my GP, Dr Erian on 24 October 2019 I tried to just get on with it the best I could thinking that it would all resolve as it had done before, and so when the shoulder pain resolved I believed and hoped at that time that eventually the neck pain, neck stiffness and the numbness would resolve too. After the Accident and before I went to see Dr Erian on 24 October 2019 I had an expectation that things would eventually be alright.”

31. He deposed that he was advised by Dr Erian that the pain, stiffness, and numbness to his neck and arms that had developed over time after the accident had been caused by the accident and that the insurer needed to be notified. It was not until 30 October 2019 that he learned that GIO was the relevant insurer. This was when he received an email from Ms Small informing him that the claim that Dr Erian had lodged for him had been lodged outside the timeframe of six months and requiring the provision of additional information. He deposed:

“57. Before and as at 30 October 2019 I did not know there were any time limits and did not know there were time limits to lodge a claim with the insurer. As at 30 October 2019 I had no idea about commencing proceedings in Court or bringing a claim in this Court. I believed at that time that once the claim had been lodged with GIO that GIO would take care of it all. Needing to get legal advice or needing to [go] to Court never crossed my mind in October 30 October [sic] 2019. As at 30 October 2019 I believed that once GIO had the additional information they were requesting that they would help me with the claim.”

32. He deposed that, until he first sought legal advice in July 2020, he did not think that he needed to be legally represented because, as the defendant’s insurer, he thought GIO would help him with everything he needed.

33. Until he was served with Dr Hyde Page’s report, he did not know that GIO was obtaining any report about him. He had a conversation with Ms Small, who said that GIO would send him a letter making an offer of settlement on the claim. (That offer was not issued until 8 March 2021). On reading Dr Hyde Page’s report, the applicant thought he should get some legal advice and retained his son, James, on 5 July 2020. He did so by email correspondence. Privilege was claimed over the email. He deposed:

“105. Before this time I had not raised my dealings with GIO with James or anyone else or asked him for any legal advice or to help me with the claim.”

34. Mr James Dahdah deposed that he was first approached by the applicant on 5 July 2020 by email and asked to provide legal advice. He then deposed to the steps he took in relation to the applicant’s claim.

35. The primary judge, acting on the suggestion of counsel, proceeded on the basis that the issue under s 109(3)(a) should be considered by reference to two distinct periods: the first, whilst the applicant was not legally represented; and, the second, when his son, as his solicitor, assumed carriage of the claim on his behalf.

36. The primary judge found:

“The defendant’s first attack on the plaintiff’s explanation relating to the delay is the reporting of the accident to his GP, which falls within the relevant first period. In respect to this matter, I accept the plaintiff’s submissions that the plaintiff has provided a full explanation for this period. Whilst it is somewhat difficult to understand why the plaintiff would not have provided the history of the accident to his doctor prior to October 2019, I am satisfied that the plaintiff has provided a full account of his actions, knowledge and belief during this time.”

37. GIO has not filed a notice of contention challenging this conclusion. It would be difficult for it to do so, given that GIO had accepted that the applicant had provided a full and satisfactory explanation for his not submitting a claim until November 2019. The parties accepted that the period of delay which required explanation under s 109(3)(a), was the period from 18 April 2020, after the limitation period had expired (Dijakovic v Perez [2015] NSWCA 174; (2015) 71 MVR 334 at [81], [131]) but that a full and satisfactory explanation for such delay is to include a full account of the conduct, that includes the actions, knowledge and belief of the claimant, from the date of the accident until the date of provision of the explanation (s 66(2)). What the claimant did, knew, and believed on and from the date of the accident will be relevant to the explanation of delay from the expiry of the three year limitation period to the date of providing the explanation.

38. The respondent submitted that the applicant had neither provided a full explanation, nor a satisfactory explanation, of the circumstances surrounding the plaintiff’s first seeking legal representation, including with respect to any discussion he might have had about the accident or injuries with his son, who was a solicitor, nor about the circumstances surrounding the plaintiff’s becoming aware of the limitation period. GIO submitted that the applicant had failed to mention whether he had discussed his motor accident or purported symptoms with his son at any time prior to July 2020, but had sought to pick and choose the information that would be given that was relevant to the delay. It also submitted that the applicant’s claiming privilege over the email in which it was claimed that he gave his son instructions to act as his solicitor was incompatible with his obligation to provide a full account of his conduct.

39. The primary judge held:

“Whilst the plaintiff deposes in his affidavit as to the reasons why he did not seek advice from his son prior to July 2020, he says nothing as to whether prior to that time he had ever discussed with his son the motor vehicle accident, his symptoms, or the fact that they were having a very significant impact on his business.

Further, the affidavit of the plaintiff’s son, John Dahdah, is somewhat curiously worded. He refers throughout the affidavit to his father as ‘the plaintiff’. The affidavit commences with the following statement at para 4:

‘I was first approached by the Plaintiff on 5 July 2020 via email and asked to provide legal advice. I claimed privilege over that email. I had no knowledge of or involvement in the matter prior to 5 July 2020.’

Given the nature of the relationship between the plaintiff and his solicitor, effectively as father and son, James Dahdah says nothing as to whether he and his father had discussed his father’s accident, his symptoms, or the impact of the injuries from the accident on his work and domestic life.

Given the nature of the relationship between the plaintiff and his solicitor (his son) and the matters traversed above, I consider that such evidence was necessary to enable the Court to make a judgment as to whether the explanation was satisfactory. In all the circumstances, I am not satisfied that the plaintiff has provided a full explanation for the period up to the retainer of his solicitor in July 2020, by which time the limitation period had expired.”

40. It is not clear whether the primary judge accepted the respondent’s submission that it was incompatible with the applicant’s giving a full explanation that he claimed privilege over the email said to contain his instructions to his son to act as his solicitor. That submission was pressed on appeal.

41. The primary judge also found that a reasonable person in the position of the plaintiff would not have been justified in experiencing the same delay. His Honour said that the applicant was in a position where he had a legally qualified son to whom he could speak at any time and seek advice, which was demonstrated by the fact that, in July 2020, he retained his son to assume conduct of his claim. The primary judge applied the reasoning of Tobias JA in Figliuzzi v Yonan [2005] NSWCA 290 at [100] as being “particularly apt given the circumstances of the present application”. There, Tobias JA and McColl JA (although for somewhat different reasons) held that a reasonable person in the position of the plaintiff in that case would have sought legal advice which would at least have indicated that she might have a basis for a claim to be made within the limitation period. The primary judge found that:

“Whilst it is understandable that in the early stages following the accident the plaintiff might have hoped his injuries would have resolved, on his own evidence, by April 2020, three years after the accident, the plaintiff continued to suffer significant disabilities such that he was actively seeking out medical treatment, and those disabilities were impacting in a significant way on operation and profitability of his business. Despite these circumstances subsisting as at April 2020, the plaintiff did not seek out the assistance of his legally qualified son.”

42. The primary judge thus found that the applicant had not provided a full and satisfactory explanation for the delay as required by s 109(3)(a) of the Act. His Honour considered it was therefore unnecessary for him to consider the question whether the damages threshold under s 109(3)(b) had been met.

43. The applicant challenged the primary judge’s finding that the requirement of s 109(3)(a) had not been met. If an appeal against those findings were accepted, the applicant sought an order as follows:

“Remit the Appellant’s Motion and the Respondent’s Notice of Motion dated 12 July 2022 to the court below for re-hearing on the basis of this Court’s determination that the Appellant satisfies the requirements of s 109(3)(a) of the Act as informed by s 66(2) of the Act by having provided a “full and satisfactory” explanation for delay in commencing the proceedings.”

44. If that order were made, there would be two issues that remained to be determined on the parties’ respective notices of motion. First, whether the threshold under s 109(3)(b) for the applicant’s damages claim had been satisfied and, secondly, whether there was any discretionary reason not to grant the applicant leave, nunc pro tunc, to commence the proceedings even if pars (a) and (b) of s 109(3) were satisfied. Neither the applicant nor Mr James Dahdah was cross-examined in the District Court. Medical reports and an accountant’s report on quantification of loss were tendered. There was no cross-examination of any of the doctors, nor of the accountant who provided reports. This Court is in as good a position as the primary judge to determine the issue under s 109(3)(b). On the hearing of the appeal, both parties accepted that this was so. The respondent made no submission that, if the requirements of s 109(3)(a) and (b) were satisfied, nonetheless an order granting leave, nunc pro tunc, for the applicant to commence the proceeding, should not be made.

Section 109(3)(a)

45. I reject the submission that for the applicant to have provided a full and satisfactory explanation for the delay in bringing his claim, he was required to waive privilege. Nothing in ss 66, 73 or 109 expressly or impliedly abrogates a plaintiff’s client legal privilege in respect of his or her communications with his or her legal adviser leading up to the making of the claim. The privilege is only abrogated by express words or clear or necessary implication (Baker v Campbell (1983) 153 CLR 52 at 90, 96-97, 117-118, 123; [1983] HCA 39; Corporate AffairsCommission (NSW) v Yuill (1991) 172 CLR 319 at 322, 331, 337-338, 345; [1991] HCA 28; Glencore International AG v Commissioner of Taxation (2019) 265 CLR 646; [2019] HCA 26 at [21]-[26]).

46. The claim of privilege was not challenged. No adverse inference arises from the making of a valid claim to privilege (Wentworth v Lloyd (1864) 10 HLC 589 at 591-592; 11 ER 1154 at 1155).

47. In Dijakovic v Perez, Gleeson JA said:

“[81] The inquiry required by s 109(3)(a) and s 66(2) has two temporal elements. One is the period of “delay” in commencing the proceedings after the three year time limit has expired. It is “the delay” which requires explanation under s 109(3)(a). The other is the period in respect of which a “full” account is required of the claimant’s conduct including the actions, knowledge and belief of the claimant. Authority makes plain that this period is from the date of the accident until the date of providing the explanation for the delay in commencing proceedings: Brierley v Ellis [2014] NSWCA 230; 67 MVR 282 at [7]; Karambelas v Zaknic at [16]; Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 at [48]; Russo v Aiello [2003] HCA 53; 215 CLR 643 at [4]; Mancini v Thompson at [46]-[47].”

48. An explanation for the delay will be a “full” explanation if it provides a complete account of the actions, knowledge and belief or beliefs of the claimant from the date of collision until the date of providing the explanation (Karambelas v Zaknic (No 2) [2014] NSWCA 433; (2014) 69 MVR 127 at [16]). The requirement that the explanation be “full” does not “call for perfection” nor require the claimant to recount “every moment that has elapsed” within that period (Diaz v Truong [2002] NSWCA 265; (2002) 37 MVR 158 at [122]; Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 at [104]).

48. In Rahman v Al-Maharmeh [2021] NSWCA 31; (2021) 95 MVR 394, Brereton JA, with whom Meagher and Leeming JJA agreed, observed (at [33]) that “…the content of a ‘full’ explanation is informed by its purpose, namely to enable a judgment as to whether the explanation is a ‘satisfactory’ one.”

49. As observed above, the applicant deposed that the first time he sought legal advice was on 5 July 2020 when he sent an email (over which privilege was claimed) to his son James. He deposed:

“[105] Before this time I had not raised my dealings with GIO with James or anyone else or asked him for any legal advice or to help me with the claim. This was because as I set out above when I received the email from Gaye on 12 February 2020 that said GIO was accepting liability, I believed GIO would help me with my claim. I thought as the insurer of the driver who hit me that was what GIO was there to do.”

51. James Dahdah deposed:

“[4] I was first approached by the Plaintiff on 5 July 2020 via email and asked to provide legal advice. I claim privilege over that email. I had no knowledge of or involvement in the matter prior to 5 July 2020.”

52. Neither was cross-examined. The primary judge had no basis to reject their evidence and to infer that there had been or might have been prior relevant communications between them, the non-disclosure of which meant that the explanation was not full. No adverse inference requiring explanation arises from James Dahdah’s referring to his father and client as “the plaintiff”.

53. On 12 February 2020, GIO accepted that the explanation that the applicant had provided for the delay in making the claim was full and satisfactory. By its second letter of that date, GIO advised that it would be gathering information about the claim so as to be able to make a reasonable offer of settlement. It did not advise the applicant that the three-year limitation period under the Motor Accidents Compensation Act would shortly expire. The applicant was unaware of the limitation period.

54. About two weeks after receiving Dr Hyde Page’s report, the applicant retained his son to provide legal advice. The respondent did not submit that there was any unreasonable delay by James Dahdah in briefing counsel and in his steps to obtain the applicant’s medical records and to arrange for his assessment by another doctor.

55. It was not until 8 March 2021 that GIO made its offer of settlement. On 30 March 2021, it referred the applicant’s claim to the Personal Injury Commission. Neither party submitted that the period of delay between 30 March 2021 and 5 May 2022 was relevant (s 109(2)). Until the Personal Injury Commission delivered its award, the applicant was precluded from commencing court proceedings (s 108).

56. GIO submitted that there was a “conspicuous absence of evidence as to whether the motor accident and its consequences were ever discussed” between the applicant and his son (before James’ retainer). It submitted that the evidence did not address whether there were any relevant discussions between the applicant and his son concerning the motor accident or his symptoms at some point prior to the applicant’s formally instructing his son to act on his behalf.

57. The evidence to the contrary adduced by the applicant was explicit. Unless challenged (which it was not) it did not permit conjecture that there might have been some relevant but undisclosed communications between the applicant and his son as to whether he had suffered injury in a motor vehicle accident and what his options were if he had done so.

58. The explanation provided by the applicant for not having commenced the proceedings within the three year limitation period was full and satisfactory. He did not know that a limitation period existed until after it had expired. He had not sought legal advice because he thought GIO would look after him. GIO did not advise him of the ramifications of the expiry of the limitation period. It held out to him that an offer of settlement would be forthcoming.

59. The primary judge held that the explanation was not satisfactory for the following reasons:

“The plaintiff was in the position where he had a legally qualified son who he could speak to at any time and seek advice. Indeed, this is demonstrated by the fact that in July 2020, he did just that, and his son assumed conduct of his claim immediately thereafter.

As observed by Tobias JA in Figliuzzi v Yonan [2005] NSWCA 290 at [100]:

‘In my opinion, if the second limb of s40(2) of the MA Act is to achieve its purpose of setting an objective standard of conduct with respect to the expected behaviour of a reasonable person in the position of the respondent who had been injured (no doubt in her view seriously) in a motor vehicle accident and who, as she said, had sustained significant injuries that impacted on all aspects of her life and which did not subside, such a person would have been expected at the very least to have sought legal advice, by some means or other as to whether her belief that she did not have a claim under the MA Act because she was receiving workers compensation payments due to her time off work as a result of those injuries, was indeed correct as a matter of law. It is not suggested that had such a question been asked, it would have been answered otherwise than that, at the very least, she may have such a claim.’

I note McColl JA agreed with Tobias JA in general terms although did not agree that any such advice needed to be sought from her then employer, the Legal Aid Commission. The observations of Tobias JA are particularly apt given the circumstances of the present application.

As in Figliuzzi, the plaintiff in this case alleges very significant injuries and disabilities arising from the accident. Whilst it is understandable that in the early stages following the accident the plaintiff might have hoped his injuries would have resolved, on his own evidence, by April 2020, three years after the accident, the plaintiff continued to suffer significant disabilities such that he was actively seeking out medical treatment, and those disabilities were impacting in a significant way on operation and profitability of his business. Despite these circumstances subsisting as at April 2020, the plaintiff did not seek out the assistance of his legally qualified son.

In all the circumstances, I am not satisfied that a reasonable person in the position of the plaintiff would have been justified in experiencing the delay up to 5 July 2020, at which point he sought out the advice of his son.”

60. Figliuzzi v Yonan concerned the former Motor Accidents Act 1988 (NSW), but the relevant provisions were materially the same as those engaged in the present application.

61. There, a clerk with the Legal Aid Commission was injured in a motor vehicle accident on her way to work and received workers compensation payments. She assumed that, because she had received workers compensation, she would have no other claim. She did not seek legal advice until her doctor advised her to do so after her injuries were not getting better. Tobias and McColl JJA considered that a reasonable person in her position would have sought legal advice earlier.

62. That was a decision on a question of fact. It establishes no precedent (Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 at 585 per Barwick CJ, with whom Gibbs, Stephen, Jacobs and Murphy JJ agreed).

63. Tobias JA (at [93] and [103]) and McColl JA (at [133]) treated the reference in the statute to “…a reasonable person in the position of the claimant who would have failed to comply with the duty or would have been justified in experiencing the same delay” as the personification of the standard of reasonableness (the man on the Clapham omnibus or the Bondi tram). Thus, Tobias JA (at [93]) said that it was necessary to make findings as to the position of the respondent “in which the reasonable person is required to stand” which includes “all matters which may be relevant to the behaviour expected of the reasonable person in the respondent’s position”. McColl JA held (at [133]) that a reasonable person in the respondent’s position “would have sought legal advice to determine the accuracy of her opinion with the correlative presumption that she would have been advised of her MA Act rights”.

64. Neither Tobias JA nor McColl JA considered whether the reference to “a reasonable person” in s 40(2) of the Motor Accidents Act 1988 (which was in materially the same terms as the current s 66(2) of the Motor Accidents Compensation Act 1999) was to a person falling within a spectrum of reasonable people.

65. In Hunter v Roberts [2019] NSWCA 116; (2019) 88 MVR 456, Meagher JA, with whom Brereton JA and Simpson AJA agreed, held (at [18]) that there is a spectrum of reasonable persons and it is sufficient that there is one hypothetical person within that spectrum who would have experienced the same delay. His Honour quoted Hodgson JA in Russo v Aiello [2001] NSWCA 306; (2001) 34 MVR 234 at [17]. This statement was approved by this Court in Rahman v Al-Maharmeh at [43].

66. In Figliuzzi v Yonan, Santow JA had dissented on the facts. He alluded to this issue, although not in relation to the construction of s 40(2) of the 1988 Act, but on the standard of appellate review. Santow JA said:

“[36] When three apparently reasonable judges, as in this court, have reached by a majority of two to one differing views as to what a reasonable person would have done in the circumstances, it highlights how difficult it is to be satisfied that the decision of the primary judge was clearly wrong in her discretionary determination, though it be the case that she should in her reasons have engaged more closely with that issue. Clearly enough, as I have explained, the primary judge was well aware of the test she had to apply, as is clear from her reference (in [45] of her judgment) to ‘a reasonable person in the plaintiff’s position’. Though respecting the views of those reaching a view to the contrary, I consider that this is the kind of case where a court of appeal is not justified in interfering with the discretionary decision appealed from, though recognising that a different view of what a reasonable person would have done in terms of the statutory test is clearly open.”

67. If Figliuzzi v Yonan were decided today, one would expect, in the light of Hunter v Roberts and Rahman v Al-Maharmeh, that the result would have been different. Unless the majority in that case could have affirmed in the face of Santow JA’s dissent that no reasonable person in the spectrum of reasonable persons would have acted as the claimant did in that case, the result would have been different.

68. Figliuzzi v Yonan did not support the primary judge’s conclusion. Many reasonable persons in the position of the applicant would consider that, as the insurer had accepted their explanation for the delay in making the claim and had foreshadowed making an offer of settlement, they need do no more than wait for the offer to arrive. It was reasonable for the applicant to consider that GIO was there to help him (as it had done in assisting him in making the claim) and to assume that he did not need to seek legal advice. The objects of the Act in encouraging early resolution of compensation claims and the active duties imposed on insurers to that end, do not indicate that such an approach is not reasonable.

69. For these reasons, the primary judge erred in concluding that the applicant had not provided a full and satisfactory explanation for the delay in commencing proceedings.

Section 109(3)(b)

70. It was common ground that the threshold for total damages under s 109(3) was $130,250 (Motor Accidents Compensation (Determination of Loss) Amendment Order 2016 cl 3(2)). It was also common ground that in s 109(3)(b) the expression “likely to be awarded” does not refer to a probability greater than 50% but to a real or substantial chance, as distinct from a remote chance, of damages being awarded in excess of the threshold (Harika v Tupaea (2003) 58 NSWLR 675; [2003] NSWCA 332 at [26]-[27]; Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195 at [36]; Eades v Gunestepe [2012] NSWCA 204; (2012) 61 MVR 328 at [10]; Dijakovic v Perez at [109]; Rahman v Al-Maharmeh at [47]).

71. In Harika v Tupaea, Mason P said (at [25]):

“25. An application under s 43A(7) must proceed on evidence: Russo v Aiello (at 1778 [13]; 234 [13]). But it is not the trial of the claim and it is relevant that the parties fought this particular application without cross-examining any of the witnesses. When parties join issue on the basis of tendering medical reports that take a range of positions, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence.”

72. Although this does not mean that the Court must always take a claimant’s case on damages at its highest, nor assume that the claimant will succeed on every head of damage claimed (Rahman v Al-Maharmeh at [49]) where, as here, the parties proceeded on the basis of tendering medical reports without cross-examining any of the witnesses, the Court must be slow to resolve the matter based on the medical reports tendered by the respondent where they conflict with Dr Sheehan’s report tendered by the applicant.

73. As stated above at [30], the applicant’s own evidence was that before the accident he was not having any active medical treatment. In the hours after the accident his neck became sore and stiff. He also had a headache and was sore in his left shoulder. He took painkillers at the time and thought that the condition would resolve in time if he rested. He had been involved in a car accident in about 2006 but it had no lasting effects. He had seen his general practitioner about neck pain in 2013 and 2014 but this too had cleared up and he did not have any pain or neck problems immediately before the accident and was not taking any pain medication or having any treatment for his neck. About a month after the accident, his neck and left shoulder were still sore and he was taking Panadol.

74. Over time, his neck pain and neck stiffness increased. He continued to try to manage it with Panadol. Later, he also developed numbness to his hands and, over time following the accident, noticed that, when he would wake up from sleeping or sitting down for prolonged periods, his hands and fingers were numb. He also had left shoulder pain. He saw his general practitioner, Dr Erian, nine days after the accident because he had lacerated his foot. That was on 27 April 2017. He deposed that he believed he did not mention the accident to Dr Erian at this time as he believed that the neck pain, neck stiffness and shoulder pain would resolve itself.

75. He consulted him again on 19 May 2017, complaining of dizziness. He saw him again on 20 July 2017 where Dr Erian recorded in his report that he had had left shoulder pain for months. This was attributable to when he was on a ladder trying to bend a steel pipe adopting the wrong posture. On 31 June 2017, he declined a cortisone injection for his shoulder but he was referred for such an injection on 4 September 2017. On 18 September 2017, Dr Erian recorded that he had left sided low back pain with sitting and numbness in his left thigh. He was referred to a specialist for his left shoulder pain and declined a cortisone injection on 29 September 2017. He deposed that he had the injection for his left shoulder in mid-September 2017 and that it relieved the pain. The pain in the left shoulder was resolved within a few months after the injection.

76. Between the accident and when he saw Dr Erian on 24 October 2019, the applicant noticed that his neck pain got worse and his neck was becoming stiffer. The numbness, once it started in about early 2019, did not resolve over time and became more noticeable and regular (par 38). He saw Dr Erian on 24 October 2019 for a check up regarding his neck and numbness. He told Dr Erian that he was involved in a motor vehicle accident on 18 April 2017 and that since then had suffered neck pain and later numbness of both hands at night. Dr Erian considered that he had suffered a whiplash neck injury that was related to the accident. He referred him for an MRI scan of his cervical spine.

77. Dr Erian completed the medical certificate accompanying the motor accident claim form. He described the injury as a whiplash neck injury and neck pain. He certified that the injuries were consistent with the patient’s description of the cause of the injury. He also certified that the applicant was fit for preinjury duties from “all time”.

78. On 25 February 2020, the applicant was referred by Dr Erian for a cervical spine MRI and physiotherapy. The radiologist reported disc extrusion at C3/4, and

“Mild-to-moderate bilateral recess narrowing, mainly on the left side. There is chronic-appearing severe bilateral foraminal stenosis from prominent uncovertebral hypertrophy and the posterolateral disc protrusions causing impingement of the exiting C4 nerves in the proximal aspect of the foramina”.

79. It also recorded “mild bilateral facet arthrosis”. There was a mild diffuse disc bulge at C4/5, mild disc bulges at C5/6 and C6/7 and “…prominent uncovertebral hypertrophy on the left side resulting in moderate left foraminal stenosis, contacting but not flattening the left C7 nerve root”. There was minimal left facet arthrosis.

80. As noted above, Dr Hyde Page provided a report dated 15 May 2020 on the basis of review of the applicant’s medical records. He noted that, on 21 January 2014, a physiotherapist had stated that the applicant suffered from chronic neck pain and stiffness and the physiotherapist thought there was an underlying diagnosis of C2/3 facet joint stiffness. A bone scan in November 2014 showed discovertebral arthritis at the C5/6 level. He noted that, when the applicant was referred to a shoulder orthopaedic surgeon on 20 July 2017 in connection with his left shoulder injury that was suffered at work, the applicant made no mention of any neck injury or complaint. Dr Hyde Page also noted that, on 15 January 2018 he was seen with bilateral advanced osteoarthritis of the hips and subsequently went onto the waiting list at the public hospital for total hip replacements. On 3 May 2019, his GP commented that he had mild neck restricted movement but nothing more was commented about this and, according to Dr Hyde Page, there was nothing to say he had a significant neck problem at that time.

81. Dr Hyde Page referred to Dr Erian’s note of a consultation on 5 February 2020 in which Dr Erian noted that he was working in demolition which, of its nature, was hard physical work and that he fell on 15 January 2020, on a driveway at work. Dr Hyde Page inferred from the notes that the fall had aggravated the arthritis in his hips.

82. Dr Hyde Page summarised the results of the MRI scan on 27 February 2020 as follows:

“Finally, he had an MRI scan of his cervical spine on the 27 February 2020, and this shows he has advanced cervical spondylitis or degenerative disc disease, particularly at C3/4, C5/6 and C6/7. These changes are in keeping with his original motor vehicle accident in 2006 and progressive onset of the cervical spondylitis. It was already noted he had increased uptake on a bone scan in 2014 and he had physiotherapy for neck pain and stiffness in 2014 as well.

Overall, the notes suggest that he had a chronic neck complaint with severe cervical spondylitis over a period of many years and any aggravation caused by the motor vehicle accident on the 18 April 2017 was very minor, as he did not seek any treatment for two and a half years.”

83. Dr Hyde Page opined:

“On reading the documentation it appears that Mr Dahdah was doing heavy demolition work and he actually ran his own company. He continued doing this heavy work after the motor vehicle accident during which time he had other injuries to his left shoulder and strains while doing heavy lifting that caused bilateral inguinal hernias. The work aggravated underlying osteoarthritis of his hips as well. Throughout this period of time however he never developed any neck symptoms, despite doing heavy manual work.”

84. Dr Hyde Page was of the opinion that the applicant had no ongoing disabilities as a consequence of the motor vehicle accident. He opined that the alleged injury to the applicant’s cervical spine, or whiplash injury, is not a consequence of the motor vehicle accident, but instead is a pre-existing condition that goes back to a motor vehicle accident in 2006 as a result of which he had chronic neck pain for which he had sought treatment from a physiotherapist in 2014. The MRI scan found severe generalised cervical spondylitis and degenerative disc disease confirmed that this was a long standing condition.

85. Dr Sheehan examined the applicant on 9 February 2021. He observed that a bone scan conducted in November 2014 was described as having only revealed discovertebral arthritis at the C5/6 level and not any of the cervical spine pathology detected in 2020. He did not consider it to be of any relevance that the applicant had not reported to Dr Erian any complaints about the symptoms he described as having followed from the collision after the accident on 18 April 2017 until October 2019. The reason he considered that not to be of relevance was that the applicant consulted his general practitioner for problems arising from different accidents and the development over time of hip joint osteoarthritis. The symptoms precipitated by those incidents, which would have included the laceration of his foot, the injury to his left shoulder and the development over time of hip joint osteoarthritis, required more urgent attention than ongoing discomfort which he still expected would eventually resolve.

86. Dr Sheehan stated:

“Diagnosis:

In my opinion, the trauma sustained by the subject in his motor vehicle accident of 18 April 2017 has caused him to suffer the following injuries:

1.    Significant musculoligamentous strains/tears involving his cervical spine.

2.    An aggravation of pre-existing and immediately before his motor vehicle accident of 18 April 2017, extensive severe degenerative changes in his cervical spine.

3.    Probable additional cervical spine disc damage involving C3/4, C5/6 and C6/7 aggravating pre-existing pathology at those specific levels.

…

Prognosis

Because Mr Dahdah has continued to experience ongoing neck pain and stiffness since his motor vehicle accident of 18 April 2017 and because of the results of his cervical MRI scan of February 2020 coupled with those clinical signs which he demonstrated when he was assessed and his lack of permanent response to conservative treatment, his prognosis is believed to be far from good.

In fact, it is predicted that the subject will continue to suffer from increasingly incapacitating neck pain and stiffness throughout the remainder of his life.

Further it needs to be appreciated that those injuries which the subject has sustained will result in the acceleration of degenerative disease within his cervical spine.”

87. Dr Sheehan considered that Mr Dahdah would require the following:

“1.    Six-weekly visits to his GP at a cost of $100 per consultation, with that requirement being ongoing.

2.    A pharmaceutical allowance associated with each GP attendance of $50.

3.    12 sessions of physiotherapy, hydrotherapy and remedial massage at a cost of $150, $100 and $100 per attendance respectively, with those interventions being required yearly throughout the foreseeable future.”

88. In relation to the applicant’s capacity for future work, Dr Sheehan stated:

“Since his motor vehicle accident of 18 April 2017, Mr Dahdah explained that he has only ever been able to work in a restricted capacity and less hours than usual.

Unfortunately, that will continue to be the case in the future.

Further, his incapacity will increase with the passage of time because of the progression of accelerated determine changes.

In fact, it is anticipated that the subject will need to cease work altogether by the age of 65 at the latest due to ongoing neck pain and stiffness, resulting in the termination of his self-employment five years earlier than expected.”

89. Dr Sheehan considered that the applicant’s capacity to lead a normal life had been very badly affected by the motor vehicle accident and the assistance he had been provided (referred to below) had been appropriate and consistent with the impact of his injuries upon his physical wellbeing.

90. In recording the history taken from the applicant, Dr Sheehan recorded that he was told by the applicant that, during the evening which followed the accident, he developed a severe headache and began to experience very uncomfortable neck pain and stiffness as well as some left shoulder discomfort. Having spent an uncomfortable night, the applicant confirmed that during the following day he consulted his GP, Dr Erian, who prescribed painkillers for him so that he could continue to work and thus try to meet his financial obligations.

91. GIO notes that this is not consistent with the applicant’s evidence, nor the notes of Dr Erian. Dr Erian’s records record that the applicant’s first consultation with him after the date of the accident was on 27 April 2017 when he consulted Dr Erian for a laceration of the left foot, having stepped on a galvanised screw.

92. There is no reason to think that this discrepancy would have affected Dr Sheehan’s opinion as to the causal impact referred to above. Elsewhere in his report, Dr Sheehan had referred to the fact that the applicant used painkillers to deal with his symptoms and that he reported increasing neck pain and stiffness.

93. Dr Thomas Rosenthal, who describes himself as an occupational physician, also examined the applicant. He reported that there were significant restrictions in neck movement. Left rotation was reduced by half and right rotation reduced by one third. Flexion extension was reduced by half, as was lateral flexion to the left and right. Dr Rosenthal opined that:

“…it is reasonable to suspect that the whiplash injury temporarily aggravated a pre-existing neck arthritis. The symptoms now are due to natural progression of his arthritis, which would have occurred in any case, particularly due to the lack of treatment and complaints between the time of the accident and November 2019. This resulted in a two and a half year delay, where essentially his neck was not examined. On balance it is likely that his neck condition is now constitutional and not as a result of the motor vehicle accident.”

94. Whereas Dr Sheehan considered that a comparison between the 2014 and 2020 MRIs showed considerable additional cervical spine pathology, not explicable by the passage of time but attributable to the motor vehicle accident, Dr Rosenthal considered that, although there was a temporary aggravation of a pre-existing neck arthritis, the symptoms (and I assume the pathology revealed by the 2020 MRI) was due to the natural progression of the arthritis.

95. No doubt, at trial, the doctors will be called on to explain their opinions and to explain the clinical significance of the 2020 MRI. Consistently with the reasoning of Mason P in Harika v Tupaea quoted at [71] above, I proceed on the assumption that there is a real and substantial chance that Dr Sheehan’s opinion will be accepted at trial.

96. Dr Sheehan’s opinion does not exclude the presence of other medical conditions unrelated to the accident that may have contributed to the loss of the applicant’s earning capacity. These include his arthritic condition, which is unrelated to the accident and which preceded the accident but developed over time, and his hip replacement.

97. The applicant worked as a demolition contractor. He has his own company, Big Truck Daw Daw Pty Ltd. It derives income from the provision of demolition and asbestos removal services. The applicant worked hands-on in the operation of the business, using contractors as required. His evidence is that he intended to continue to operate the business until retirement at the age of 70. I proceed on the assumption that that evidence would be accepted at trial. There is nothing to contradict it.

98. At the date of the accident, the applicant was 56 years old. By the time his difficulties with the pain and stiffness of his neck prompted him to see Dr Erian about that (October 2019), he was 59.

99. The business had been running since 2011. The applicant deposed that, before the accident, he would undertake the general demolition work, drive the trucks to and from the site and undertake the asbestos removal for which he held a licence. He says that, since the accident, he has experienced difficulty undertaking some aspects of the business because of the neck pain and stiffness that developed over time. Specifically, the restricted movement in his neck made it difficult to drive trucks. He could not turn his neck when manoeuvring trucks such as reversing onto and off demolition sites. He hired a driver to drive the truck for him and he sat on the passenger seat. This was an additional cost to the business.

100. The applicant’s evidence was that, as the stiffness in his neck increased, he found it more difficult to flex his neck when working up on ladders and removing sheets of asbestos from roofs and awnings. He therefore was unable to undertake the asbestos removal work himself and he either needed to employ extra labour to help complete asbestos removal under his supervision, or if the demolition job required asbestos removal, he would not quote for that work but engage a contractor who would be paid directly by the principal. He deposed that asbestos removal work was the most profitable demolition work as a licence is required for its removal (which the applicant has), competition for the work is less and the rates for the work are higher.

101. The applicant deposed that he took on different demolition work including strip-out work in places such as shopping centres. That work is physically easier and does not require as much truck driving, nor does it involve the removal of asbestos or being up ladders. However, that work pays less than the asbestos removal work and general demolition.

102. The applicant said that he had never sustained an injury to his neck in the course of his work and there is no contrary suggestion.

103. No doubt it will be an issue at trial as to whether other disabilities unrelated to the motor vehicle accident would, in any event, have precluded the applicant from carrying out some of the tasks. Thus, it may be suggested by the respondent that the arthritis of his hips and his hip replacement would have inhibited his ability to climb ladders and remove asbestos. At least in respect of his claim for past economic loss, it might be suggested that the soreness of his left shoulder (until that was relieved) would have inhibited such work. Although the applicant attributed the soreness of his left shoulder to the motor vehicle accident, the medical evidence does not support that attribution.

104. The applicant served a report of a chartered accountant, Mr Michael Lee, whose position at the time of his report was Director – Forensic, of Vincents Chartered Accountants. Mr Lee’s report assessed the applicant’s economic loss arising from the accident on the assumptions that:

1. had the accident not occurred, the applicant would have continued to operate the business until retirement;

2. as a result of the injuries sustained in the accident, the applicant suffered a reduction in his capacity as follows:

“4.5 As a result of the injuries sustained in the accident, I am instructed the following:

(i)   Subsequent to the accident, Mr Dahdah returned to work, albeit in a reduced capacity (i.e. being unable to undertake asbestos removal work, truck driving, etc.);

(ii)   I am instructed that as a result of the abovementioned reduced capacity, the business has been impacted as follows:

(a)   Mr Dahdah has incurred additional labour costs in relation to truck driving (i.e. Mr Dahdah would sit as a passenger directing the driver) which I am instructed cost approximately $1,500 per week;

(b)   Mr Dahdah has subcontracted out asbestos removalist work (rather then [sic] undertaking such work himself) which has reduced the profit margins of the business; and

(c)   Mr Dahdah has sourced alternate [sic] work in relation to ‘strip outs’ at shopping centres, however, I am instructed that such work is less profitable than demolition/asbestos removal work.

(iii)   Mr Dahdah will likely continue to operate the business, albeit in a reduced capacity, until he is ‘forced’ to retire early at 65 years of age.” (WB 584)

105. Dr Sheehan opined that at least he would have to retire at 65.

106. Mr Lee estimated the applicant’s loss of income having regard to his financial records and those of Big Truck Daw Daw Pty Ltd, being, in the latter case, income that he had under his control and at his disposal by exercising his earning capacity. The respondent did not take issue with that assumption.

107. Mr Lee was careful to say that his calculations did not represent the applicant’s actual economic loss, as this was a matter to be determined by the Court based on all of the evidence before the Court. But on the assumptions he made, he opined that the applicant could claim an amount of between $267,222 and $587,272, comprising past and future economic loss, without allowance of statutory interest for past losses.

108. The applicant submits that Mr Lee’s assessment of past economic loss of $102,326 is based only on a replacement of labour for truck driving. The applicant submitted that this was a conservative estimate as it did not take into account the applicant’s evidence that the demolition business had suffered loss because work had not been quoted for.

109. The respondent submitted that the net profits of Big Truck Daw Daw Pty Ltd increased during the period between 2017 and 2021 and its expenses fell between 2018 and 2020 before increasing in 2021.

110. That is not relevant. The question is what the profits of the business, whose disposition was under the applicant’s control, would have been but for the injuries the applicant suffered from the accident.

111. It is not possible on this application to disentangle the issue of the extent to which the different medical conditions from which the applicant suffers contributed to the loss of earnings which his business would otherwise have received. To satisfy the requirement of s 109(3)(b), it is not necessary to find that it is more probable than not that his damages would exceed $130,250. It is sufficient that it is shown that there is a real or substantial chance that he would receive more than that. Having regard to Mr Lee’s report and the conservative nature of some of his assumptions, I am satisfied that there is at least a real or substantial chance that his damages will exceed the threshold.

112. It follows that the primary judge erred in dismissing the proceedings and should have granted the applicant leave nunc pro tunc for their commencement.

113. For these reasons I propose the following orders:

1. Grant the applicant leave to appeal.

2. Direct that within seven days the applicant file a notice of appeal in the terms of the draft notice of appeal at tab 4 of the White Folder.

3. Dispense with service of the notice of appeal.

4. Allow the appeal.

5. Set aside the orders of the court below made on 29 November 2022 dismissing the appellant’s notice of motion dated 25 July 2022 with costs and dismissing the proceedings with costs.

6. In lieu thereof order that:

1. the respondent’s notice of motion dated 12 July 2022 be dismissed with costs;

2. the appellant have leave to commence proceedings 2022/00160083 nunc pro tunc;

3. the respondent pay the appellant’s costs of the appellant’s notice of motion dated 25 July 2022.

7. The respondent pay the appellant’s costs of the application for leave to appeal, and the appeal.

8. Remit the proceedings to the District Court.

114. MITCHELMORE JA: I agree with White JA.

115. GRIFFITHS AJA: I agree with White JA.

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Decision last updated: 13 December 2023