Dean v Stace

[2010] NSWDC 334

CITATION:	Dean v Stace [2010] NSWDC 334
JUDGMENT DATE:	7 December 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. On the plaintiff’s motion pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 the time for commencement of proceedings in respect of the injuries he suffered in a motor vehicle accident that occurred on 14 January 2006 is extended to 26 August 2010. 2. The defendant is to pay the plaintiff’s costs of the motion. 3. The defendant’s motion is dismissed. 4. The defendant is to pay the plaintiff’s costs of the motion, and 5. The exhibits and affidavits are returned.
CATCHWORDS:	LIMITATIONS - Application for extension of time - Whether explanation is satisfactory - Determination of condition following neck injury - Prejudice
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
CASES CITED:	Salido v Nominal Defendant (1993) 32 NSWLR 524
PARTIES:	Andrew David Dean (Plaintiff/Applicant/Respondent) Matthew Stace (Defendant/Respondent/Applicant)
FILE NUMBER(S):	2010/00283923
SOLICITORS:	Michael Evers & Co (Plaintiff/Applicant/Respondent) QBE CTP Legal Unit (Defendant/Respondent/Applicant)

JUDGMENT

1 There were two motions before the court in this matter. They related to the plaintiff’s claim brought under the Motor Accidents Compensation Act 1999 for damages to compensate him for injuries suffered in a motor vehicle accident that occurred on 14 January 2006. At the time of the accident the plaintiff was a serving police officer and a passenger in a police motor vehicle driven by a colleague.

2 The defendant by motion filed on 5 December 2010 sought the dismissal of the proceedings on the basis of delay involved in the commencement of those proceedings. The plaintiff’s motion sought leave pursuant to s 109(1) of the Act to commence proceedings out of time. A statement of claim in respect of the action was filed on 26 August 2010. The defendant argued against grant of leave on two bases; firstly, that the explanation for delay in serving notice of the claim and in bringing the action was not satisfactory and, second, that by reason of the delay he suffered actual prejudice in meeting the claims of injury and disability.

3 The plaintiff’s evidence comprised that contained in his affidavit upon which he was cross-examined and affidavits of his current solicitor. S 66(2) of the Act required that in order for his explanation to be accepted it was necessary that the plaintiff provide a full account of his conduct including his actions, knowledge and belief from the date of the accident until the date the explanation was provided. S 66(2) also provided that the explanation was not to be regarded as satisfactory unless a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay in giving notice of his claim and commencing proceedings.

4 The plaintiff initially provided an explanation by way of statutory declaration on 23 December 2009. It was set out in a 13-page document in 68 paragraphs. It attached 18 reports of treating specialists and radiologists. The defendant did not reject the explanation on the basis that it was not full. His argument was that it was not satisfactory. The plaintiff provided to the Court essentially the same explanation as that provided to the defendant’s insurer in December 2009.

5 The explanation provided the following information. The plaintiff struck and injured his head in the course of the accident. He complained of neck pain at the time and was placed in a cervical collar for ten days. Initial radiological investigations showed no evidence of structural damage to the plaintiff’s spine. He was diagnosed with a whiplash or soft tissue injury. After a short period he returned to work on restricted duties and with pain killing medication. Some physiotherapy was provided through the plaintiff’s workers compensation insurer. His pain persisted and he was treated with pain killing medication, chiropractic therapy and massage.

6 In October 2006 his continuing pain was such that he was referred to Dr Kuru, an orthopaedic specialist, whom he consulted in January 2007. Dr Kuru also advised him that he was suffering soft tissue injury and that he would recover in due time. The plaintiff became unhappy with Dr Kuru’s diagnosis and he was referred to Dr Ghabrial. At his initial consultation in May 2007 with Dr Ghabrial he was told that he had fractured two vertebrae and was advised to continue with conservative treatment. The plaintiff said he believed that he could control the pain and in so doing return to normal activity. Based on the advice received from Dr Ghabrial he did not expect his condition to deteriorate. However, the plaintiff’s symptoms increased towards the end of 2008 and pain extended into the area between his shoulders into his neck and at times causing him severe pain. He was suffering from problems coping with his employment as a police officer.

7 In May 2009 on Dr Ghabrial’s recommendation a second MRI was obtained. In August 2009 the plaintiff discussed the result of the MRI with Dr Ghabrial who told him his condition had deteriorated and recommended spinal block treatment. This treatment was provided by Dr Hollow and Dr Schwartzer in December 2009. In October 2009 Dr Ghabrial recommended that he work on selected duties and suggested to him that he might consider medical retirement.

8 The plaintiff said that until he had been fully informed of the result of the second MRI he believed his injury was minor and that it would resolve or that the pain it caused him could be controlled. He has since been classified by the Police Department as capable of permanent restricted duties. No position is available in the Port Stephens district, where he is currently employed, or elsewhere within New South Wales. He therefore faces the prospect of medical discharge from the police force.

9 The only advice given to the plaintiff immediately after the accident about his rights to compensation came from a person employed by the Police Department who told him that it would be more advantageous to pursue workers compensation rights rather than to make a third party claim. The plaintiff did not seek legal advice until August 2009 when he consulted his first solicitor. This solicitor told him that it was too late to bring a third party claim and pursued on his behalf his lump sum entitlements under workers compensation legislation.

10 The plaintiff said he was devastated by the advice received from Dr Ghabrial in October 2009 that he should remain permanently on restricted duties because it threatened the end of his police career. As a result he sought a second opinion from his current solicitor in November 2009. He said it was at the first meeting with this solicitor that he received advice about the requirement to lodge a claim within six months of an accident and to bring a claim within three years. A personal injury claim form was completed on his behalf and lodged on 14 December 2009. The statutory declaration setting out his explanation for delay was signed on 23 December 2009.

11 The defendant argued that having regard to the history presented by the plaintiff a reasonable person in his position would not have been justified in experiencing such a delay in the pursuit of his third party entitlements. This argument was based upon the plaintiff’s position as a police officer, it being alleged that he would in the course of his duties be involved in investigation and reporting of motor vehicle accidents. The plaintiff said his duties were such that he had minimal exposure to this area of police work and that he last investigated a motor vehicle accident prior to 2000. He acknowledged, however, that he was aware that he had rights obtained through third party insurance to bring a claim for compensation in respect of his injuries. He said he took advice from the Police Department workers compensation insurer that he would be better off to take that route.

12 He did not consider obtaining legal advice because although his condition did not resolve, he was advised by Dr Kuru that he would eventually recover and by Dr Ghabrial that his symptoms could be managed conservatively. He said he therefore had no reason to seek legal advice. He said it was not until the second MRI disclosed the extent of the deterioration of his condition that he consulted his first solicitor and it was not until it became apparent that he was facing medical discharge that he consulted his current solicitor.

13 The defendant suggested that I address three periods from the date of the accident: the first was from January 2006 until late 2008, the second from late 2008 until August 2009 and the third from August 2009 to December 2009. Given the history of the delays involved in securing specialist appointments explained by the plaintiff in his evidence, I considered the first two periods could be dealt with as one.

14 In this period the plaintiff believed on the basis of medical advice from orthopaedic specialists that his injury was minor and that he would ultimately recover at least to the point where he would be in a position to control his symptoms. At that stage he had suffered minimal loss. His income loss was limited to a short period when he was unable to work and his medical expenses were being met through workers compensation. In such circumstances I considered the plaintiff’s approach to be entirely reasonable. I considered that a reasonable person in his position was likely to consider that the pursuit of third party rights was not warranted.

15 The approach suggested by the defendant would impose upon all persons involved in motor vehicle accidents an obligation to lodge a personal injury claim form and commence proceedings as a precaution against deterioration of a condition initially medically diagnosed to be minor. The delay in the onset of symptoms from an injury covered in a motor vehicle accident was considered by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 528-2(b) …an obvious example of what would ordinarily be regarded as constituting a satisfactory explanation for delay in making a claim or commencing court proceedings.

16 I acknowledge that this comment was made in the context of the provisions of the Motor Accidents Act 1988, but I considered them to be equally applicable to the circumstances of the current matter.

17 It was not until August 2009 that the plaintiff was advised by Dr Ghabrial that his condition had deteriorated to the point where it was much more serious than initially envisaged. The plaintiff then sought legal advice. The advice provided was incorrect. It was not suggested to him in cross-examination that he misunderstood or misreported the advice that he was given and I therefore did not consider it necessary that evidence be obtained from the first solicitor.

18 This left for consideration the third period, namely, from August 2009 until November 2009 when the plaintiff consulted his current solicitor. I considered a reasonable person in the plaintiff’s position would be justified in accepting the advice of a person qualified in the law on the question of rights to compensation. The plaintiff was prompted to seek a second opinion when it became apparent that his career with the police force was in serious jeopardy. It was not until he took this step that the was told of time limits involved in bringing claims arising from accidents and of his rights to seek to pursue the claims although he was out of time. The consequence was that I considered his explanation of this part of the delay to be satisfactory.

19 Section 109(3)(b) required the plaintiff to establish that damages were likely to be awarded to him in excess of the threshold provided for in this section if his claim were successful. No submissions were put before the court on this point by the defendant. I noted that the plaintiff was 33 years old at the time of his injury and is now 38. He has been assessed by a specialist appointed by the Medical Assessment Service and by other medical experts to have suffered a whole person impairment of 15%. Workers compensation has been paid to date in respect of his injuries amounting to nearly $56,000. I was satisfied therefore that he was likely to recover damages, if successful, in excess of the threshold provided by that section.

20 The final issue raised by the defendant was that of actual prejudice. It was not claimed that he was prejudiced in respect of the circumstances of the accident or on issues of liability. The claim for prejudice was based upon the absence of opportunity to examine the plaintiff at the early stages of the development of his condition. It was regrettable that the defendant was not provided with that opportunity, but I was not satisfied that it resulted in prejudice to the point where a fair trial was not available.

21 My reasons for this conclusion were firstly that it was unlikely, having regard to the history of the development of the plaintiff’s condition, that he would have presented to third party medico-legal experts in any event at least prior to the end of 2008. Secondly, a full record of such medical treatment as was provided including opinions of specialists Dr Kuru and Dr Ghabrial and radiological reports were available to the defendant and, thirdly, six medico-legal experts including three nominated by the defendant and one appointed by the Medical Assessment Service have examined and reported on the plaintiff’s condition. There was no evidence before the court that any of those experts expressed concern at the absence of opportunity to examine the plaintiff at an earlier date.

22 The result was that I considered that the plaintiff fully and satisfactorily explained the delay in bringing his claim and in bringing the proceedings. I was not satisfied that the delay would result in actual prejudice to the defendant to the point where a fair trial of the issues concerning his rights to compensation was not available.

23 Having regard to the plaintiff’s age and the evidence concerning the severity of the injury, I was satisfied that it was appropriate to exercise my discretion in favour of granting him leave to commence proceedings up to and including the date upon which the statement of claim was filed, namely, 26 August 2010.

24 The defendant sought the costs of both applications on the basis that the plaintiff sought an indulgence from the court. In ordinary circumstances I would give serious consideration to that application. In this case, however, the dispute concerning the quality of the explanation for delay had already been determined in the plaintiff’s favour by an assessor appointed by the Claims Assessment and Resolution Service whose reasons were published on 25 May 2010. I considered that the defendant should be required to bear the cost of what was effectively a re-hearing of the arguments dealt with by the assessor with a second unsuccessful outcome.

25 My orders therefore are as follows:

1. On the plaintiff’s motion pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 the time for commencement of proceedings in respect of the injuries he suffered in a motor vehicle accident that occurred on 14 January 2006 is extended to 26 August 2010.

2. The defendant is to pay the plaintiff’s costs of the motion.

3. The defendant’s motion is dismissed.

4. The defendant is to pay the plaintiff’s costs of the motion, and

5. The exhibits and affidavits are returned.

26 I note that the matter is listed for status conference on 8 April 2011.

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